text:
    Victor O. BENINTENDE v. FIRST PROTECTION LIFE INSURANCE COMPANY.
    No. 83-CA-830.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Gerald Martinez, Metairie, for plaintiff/ appellee.
    Bettyanne Lambert-Bussoff, New Orleans, for defendant-appellant.
    Before BOWES, GAUDIN and GRIS-BAUM, JJ.
   BOWES, Judge.

Defendant appeals from a judgment of the District Court decreeing that defendant acted arbitrarily and capriciously and awarding plaintiff penalties and attorney’s fees under Louisiana Revised Statute 22:657. This is the sole specification of error. We affirm.

Victor Benintende was issued a credit life, accident, and health policy at the time he purchased a new automobile, in June, 1977. The policy excluded coverage for pre-existing medical conditions. In September of 1977, plaintiff suffered an injury which was eventually disabling. An operative report and subsequent medical report referred to “several episodes of low back pain and muscle spasms” during the previous year; the reports also mentioned a back injury suffered by plaintiff in 1969. As a result of these reports, defendant First Protection Life Insurance Company in December of 1977 denied coverage under its policy. In January, 1978, plaintiff filed suit for his monthly benefits.

In June, 1978, there was apparently an aborted settlement as defendant filed a rule to enforce this settlement, which was denied. In November of 1978, plaintiff filed a supplemental and amending petition requesting additional payments under the policy, penalties, attorney’s fees, and general damages for humiliation and embarrassment, for a replacement vehicle, and for automobile rental charges. The supplemental petition grew out of a seizure and subsequent sale of plaintiffs auto for failure to pay the monthly notes due. Subsequently, another settlement was negotiated, for the policy limits, which plaintiff ultimately refused because the settlement check included the lienholder, GMAC, as a payee.

Defendant again sought to enforce the settlement in the trial court, depositing a check for the policy limits in the Registry of the court. The court found in favor of defendant in May 1980 and plaintiff appealed. The Fourth Circuit Court of Appeals reversed, on the issue that the compromise had not been reduced to writing so as to be enforceable.

In February, 1983, plaintiff filed a motion to set for trial. The trial was conducted in May 1983, at which time the following stipulation was entered:

MR. MARTINEZ: Well, if we are going to stipulate that he was injured on the job and that this injury was covered by the policy I have no need for that testimony. We can stipulate to this?
MS. BUSSOFF: Yes.
MR. MARTINEZ: Okay.
MS. BUSSOFF: Let me reserve for the record, I’m reserving my rights at the time this matter started we did not feel that way but at this point in time at the time of trial since we attempted to pay this we obviously would stipulate to the underlying reasons.

There is nothing in the record to indicate that First Protection had any other evidence, in addition to the aforementioned medical reports, to substantiate their stance that Mr. Benintende’s complaints were due to a pre-existing medical condition. The reports themselves do not attribute the injuries of September 1977 to prior back problems and not one doctor or witness of any kind was called to establish the defendant’s position. In fact, there is an absolute absence of evidence of any kind to establish their defense to plaintiff’s claim.

The defendant cites Hughes v. Colonial Life & Accident Insurance Company, 345 So.2d 239 (La.App. 3d Cir.1977) in which the court stated where an insured’s pre-ex-isting medical condition may serve as the proximate or principal cause of the disability, a bona-fide dispute exists which will serve as just and reasonable grounds such as would put a reasonable and prudent businessman on his guard and justifies a refusal to pay benefits under a policy of insurance. The same court in Smith v. Reserve National Insurance Company, 370 So.2d 186 (La.App. 3d Cir.1979) held, however, that an insurer does not have a reasonable basis for withholding hospitalization benefits where a claims manager informed the insured of the denial of her claims based upon grounds that the medical problem pre-dated the policy dates but no further investigation or testimony was presented in that connection.

During the lengthy period of time between the initial suit and the final trial, there is no indication that defendant undertook any further investigation to confirm or strengthen its conclusions. The mention of prior back problems, while possibly sufficient to justify an initial refusal of payment, cannot suffice to warrant the continuous failure to honor the policy over the next five years. Defendant had the obligation in the present case either to verify by competent medical evidence that the injury was caused by or at least related to a previous medical problem, or to pay under the policy. Failure to do one or the other subjects the insurer to the penal provisions of R.S. 22:657.

Whether the insurer denied plaintiff’s claim, on just and reasonable grounds, such as would put a reasonable man on his guard, is a question of fact. Poche v. Louisiana Health Services & Indemnity, 391 So.2d 17 (La.App. 3rd Cir. 1980). Each case must be considered on its own facts and circumstances. Lucito v. Louisiana Hospital Service, Inc. 392 So.2d 700 (La.App. 3rd Cir.1980).

Under the facts and circumstances of this case, and weighing defendant’s quoted stipulation in conjunction with the complete lack of any competent evidence and the long delay involved, we affirm the trial judge’s finding that defendant was arbitrary and capricious under R.S. 22:657.

Our holding that defendant lacked sufficient basis for its refusal to timely tender payment is determinative of the issue raised by defendant that it should be relieved of penalties, etc., because it attempted to settle the matter and placed the settlement decreed by the lower court into the registry of the Court without any restrictions on its withdrawal by plaintiff. The settlement check was deposited in the Court’s registry long after the 30-day grace period of R.S. 22:657. Also, such compromise efforts do not relieve defendant of the burden of proving just and reasonable grounds.

Additionally, we note that all such settlement drafts were directed to both plaintiff and GMAC. GMAC is not a party to this suit and we are not called upon to determine its rights in this matter. However, the policy in question was contracted between insurer and insured, and it is to the insured that defendant owes its primary obligation of timely payment. This obligation was not met, and defendant is consequently liable to plaintiff for penalties and attorney’s fees as assessed.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Benintende v. First Protection Life Insurance Co., (Slip Op. Feb. 16, 1982).


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Freddie ROSS.
    No. 83-KA-838.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Philip Boudousque, William C. Credo, III Asst. Dist. Attys., Gretna, for plaintiff/ap-pellee.
    Martha E. Sassone, Staff Appeals Counsel, Indigent Defender Bd., Gretna, for defendant/ appellant.

      Before BOUTALL, C.J., and KLIEBERT and BOWES, JJ.
   BOWES, Judge.

Defendant, Freddie Ross, appeals from a sentence imposed in the trial court following a plea of guilty to a violation of La.R.S. 14:69 (illegal possession of stolen things). We affirm.

A bill of information was filed against the defendant charging him with illegal possession of stolen property. Defendant pleaded guilty to the possession charge. Sentencing was deferred pending receipt by the trial court of a pre-sentence investigation report. Upon consideration of that report, defendant was sentenced by the trial court to eighteen months at hard labor.

On appeal, defendant urges only one assignment of error.

The sentencing judge’s lack of compliance with the sentencing guidelines under the C.Cr.P. Article 894.1 precluded the defendant from receiving full consideration of the sentencing criteria set forth in Article 894.1 and from receiving the consideration of the minimum sentence allowed by law for a conviction for [sic] attempt armed robbery.

We conclude that the reference to “at-' tempt armed robbery” is a typographical error, and that defendant meant instead “for possession of stolen property.” Presuming this is the situation, we find that under the circumstances of this case the assignment of error is without merit.

The maximum sentence defendant could have received was imprisonment at hard labor for 10 years or a fine of $3,000.00, or both. Defendant does not complain that his sentence is excessive, but only that the guidelines of 894.1 were not followed. In State v. Barge, 444 So.2d 735 (La.App. 5th Cir.1984) writs denied 446 So.2d 1229 (La.1984) this court has found:

One of the prime purposes of Art. 894.1 is for appellate courts to know the judge’s reasoning so that the propriety of the sentence can be evaluated. However, unless it is argued that the sentence was excessive, it matters little, for appellate purposes, whether the trial judge fully articulated the listed aggravating and mitigating circumstances.

Accordingly, since excessiveness of the sentence was not assigned as error, we find nothing further to consider in this case.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Blake P. ROGERS v. AMBASSADOR INSURANCE COMPANY.
    No. 83-CA-803.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Writ Denied Sept. 28, 1984.

      Joseph W. Rausch, Edward N. George, III, Stassi & Rausch, New Orleans, for Blake P. Rogers plaintiff-appellee.
    E. John Litchfield, O’Keefe, O’Keefe & Berrigan, New Orleans, for Ambassador Ins. Co. defendant-appellant.
    Before BOUTALL, CHEHARDY and MARCEL, JJ.
   BOUTALL, Judge.

This is an appeal from a summary judgment awarding the insured the policy limits of an uninsured motorists policy issued to him plus attorney’s fees.

Blake P. Rogers demanded of his insurer, Ambassador Insurance Company, the full limits ($5,000.00) of an uninsured motorists policy issued to him by Ambassador for damages he suffered as a result of the wrongful death of his mother, Elsie Marie Rogers, while the occupant of another vehicle. At the time, Mrs. Rogers lived in the same household with Blake. The stipulated facts show there is coverage under the policy.

Ambassador’s policy to Blake contained the following uninsured motorists coverage under Part C:

“We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
Any judgment for damages arising out of a suit brought without our written consent is not binding on us. ‘Covered person’ as used in this Part means:
1. You or any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. and 2. above.”

There is no dispute as to the facts and clearly the insurer must pay unless something else permits it to escape payment. While Mrs. Rogers was a passenger in one vehicle, she suffered injuries and died as a result of a collision caused by the driver of another vehicle stipulated to be negligent. The other driver, Fontenot, was underin-sured and Blake received only $2,250.00 from Fontenot’s insurer, the balance of that policy being divided amongst other heirs. It is further stipulated that Blake’s uncompensated damages are in excess of Ambassador’s policy limits of $5,000.00. Accordingly, the court below rendered summary judgment in favor of Blake for $5,000.00 against Ambassador, together with attorney’s fees for failure to pay in accordance with its policy.

Appellant Ambassador admits that there is coverage under the policy but denies that it has an obligation to pay in this case because the other children and heirs of Mrs. Rogers recovered the policy limits of uninsured motorists coverage in another policy of insurance carried by Mrs. Rogers' husband on the car in which she was a passenger. Thus they reason that Blake’s only remedy is to have entered into a settlement sharing, along with the other children, the policy limits applicable to the named automobile. This obligation they contend is binding under the statutory law relative to “stacking”, R.S. 22:1406, so that the insured is prevented from seeking to collect the obligation that is clearly owed under his policy.

We point out that this is not a case wherein an insured is seeking to recover under more than one uninsured motorist policy. The best that can be said from defendant’s standpoint is that there áre two policies under which plaintiff may seek to recover, one his own in which his mother is also a covered person and the other a policy belonging to his father which covered the named automobile.

The trial judge pointed out that there seemed to be a conflict in the principles underlying the case of Branch v. O’Brien, 396 So.2d 1372 (La.App. 2d Cir.1981), writ denied 400 So.2d 905 (La.1981) and the case of Breaux v. Louisiana Farm Bureau Mutual Insurance Company, 413 So.2d 988 (La.App. 1st Cir.1982), writ denied 420 So.2d 453 (La.1982) but resolved to follow the Branch case on the basis that “therefore, although Mr. Rogers is limited to only one policy, he is free to choose the policy most advantageous to him.”

Neither of those cases is factually conforming to this case, but we consider that the statute which requires uninsured motorists coverage cannot be interpreted so as to deny that coverage to those persons who sought it. We see nothing to prevent Rogers from choosing to proceed against his own insurance company under this factual situation. We believe this conclusion to be supported by the decision in the recent case of Taylor v. Tanner, 442 So.2d 435 (La.1983), which permitted a claimant to choose a provision or policy with the highest limits amongst those available to him. As pointed out by the court:

“... the primary objective of the uninsured motorists scheme is to protect innocent victims of the negligent and financially irresponsible motorist by providing such victims with full recovery. Booth v. Fireman’s Fund Insurance Company [253 La. 521] 218 So.2d 580 (La.1968); Bond v. Commercial Union Assurance Company, 407 So.2d 401 (La.1981).”

Because this matter is appealed to us from summary judgment, we feel compelled to emphasize the fact that the damages sought by the plaintiff in this case are not those under Civil Code article 2315 which are due to the mother as the injured party and may then be transmitted to her heirs. The damages sought here are the damages which the surviving son has sustained through the wrongful death of the mother. These damages are his right alone and should not be affected by whatever course of action other children may choose to take. We point this out because it is a disputed fact as to the precise nature of the amounts recovered by the other children under the other policy. They were also occupants of the automobile and suffered some personal damage and presumably, the estate of the decedent may be due some damages.

This brings us to the last issue, the award of attorney’s fees.

An insurer’s liability to pay penalties and attorney’s fees is to be decided based upon whether its action is arbitrary, capricious and without probable cause. (La.R.S. 22:658); Carney v. American Fire and Indemnity Company, 371 So.2d 815 (La.1979); Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir.1979), writ denied 381 So.2d 1233 (La.1980). The burden of proof is on the claimant to prove that the failure to pay was arbitrary and capricious. Thomas v. McInnis Brothers Const. Inc., 401 So.2d 522 (La.App. 2nd Cir.1981), writ denied 406 So.2d 608 (La. 1981). Whether refusal to pay benefits is arbitrary, capricious or without probable cause so as to warrant an award of penalties or attorney’s fees is a question of fact on which the Court of Appeal may not disturb the trial judge’s findings absent manifest error. Henson v. Handee Corp., 421 So.2d 1134 (La.App. 2nd Cir.1982); Meshell v. Insurance Co. of North America, 416 So.2d 1383 (La.App. 3rd Cir.1982).

Appellant urges that in light of the trial court’s description of the case at hand as res nova in this district, that its refusal to pay claimant was neither arbitrary or capricious, relying on Dortlon v. United Fidelity Life Ins. Co., 326 So.2d 383 (La.App. 3rd Cir.1976), and Stewart v. Louisiana Farm Bureau Mutual Insurance Co., 420 So.2d 1217 (La.App. 3rd Cir.1982).

However, the fact that an issue raised by an insurer in challenging policy coverage is one of first impression is not alone determinative of the issue of sanctions for unreasonably denying coverage. Boudreaux v. Fireman’s Fund Ins. Co., 654 F.2d 447 (5th Cir.1981). Although an insurer has a right to test its liability on an insurance contract and demand a judicial interpretation of its policy provisions, the insurer must do so at its own expense and not at the expense of the insured. Sanders v. General American Life Ins. Co., 364 So.2d 1373 (La.App. 3rd Cir.1978).

The case at hand can be distinguished from those cited above. The present controversy concerns the insurer’s interpretation of a statute, not of the insured’s policy. The policy clearly requires payment. The denial of payment is based solely on insurer’s interpretation of the statute, La.R.S. 22:1406 D (l)(c). As we have pointed out above, this insured claimed only his policy limit for his damages and that limit was not increased because of multiple motor vehicles covered under his policy nor was the limit increased because he had insurance available to him under more than one policy. We find the insurer’s interpretation to be inappropriate and arbitrary and the imposition of attorney’s fees justified.

For the reasons above, the summary judgment is affirmed at appellant’s costs.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Anthony J. PIZZOLATO v. STATE of Louisiana, Through the BOARD OF ELEMENTARY AND SECONDARY EDUCATION.
    No. 83 CA 0766.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Charles McCowan, Baton Rouge, for plaintiff-appellee Anthony J. Pizzalato.
    Jesse James Marks, New Orleans, for defendant-appellant State of La., Through the Board of Elementary & Secondary Education.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant appeals the trial court’s holding that defendant violated the Louisiana Teacher Tenure Laws, L.S.A.-R.S. 17:43, et seq., and awarding plaintiff $475.00 per month as a result thereof. Plaintiff, answering the appeal, seeks an increase in the award.

Plaintiff is the Assistant Superintendent for Instruction at the Louisiana School for the Visually Impaired and has attained tenure in this position. Prior to December 15, 1980, plaintiff had been provided with on-campus housing, one free meal per day, and other associated benefits (i.e., payment of utilities, insurance and maintenance costs on the house) since his employment at the school in 1968. The facts which gave rise to the termination of these benefits are as follows.

During the 1978-1979 school year, the two racially segregated Louisiana State Schools for the Blind were merged into the Louisiana School for the Visually Impaired. As a result of this merger, Mr. Maefield Kiper, formerly employed at the all-black school, was made Assistant Superintendent for Administration at the Louisiana School for the Visually Impaired. Although he and plaintiff were supposed to be on the same level of heirachy, Mr. Kiper was not provided with housing nor given a housing allowance. This differential treatment resulted in Mr. Kiper’s filing a complaint with the Equal Employment Opportunity Commission (EEOC), alleging discrimination.

Defendant compromised Mr. Kiper’s claim by agreeing to pay him a housing allowance of $475.00 per month, retroactive from July 19, 1979 until June 30, 1980, at which time the legislature would address his claim. The legislature subsequently appropriated an amount sufficient to compensate Mr. Kiper in conformity to the terms of the settlement.

On July 24, 1980, without prior notice to plaintiff or Mr. Kiper, the Board of Elementary and Secondary Education passed a motion eliminating both the housing and the housing allowance for the two assistant superintendents. Plaintiff was notified of this action by letter and given 90 days to vacate the house. On September 16, 1980, plaintiff submitted a request that the Board reconsider its action. The matter was never placed on the agenda nor considered by the Board at any regular meeting. Plaintiff’s deadline for relocation was subsequently extended to December 15, 1980, but the prior order to vacate was not reconsidered.

As a result, plaintiff filed suit against the State of Louisiana, through the Board of Elementary and Secondary Education, alleging violations of the Louisiana Teacher Tenure Statutes for certified teachers in special schools, L.S.A.-R.S. 17:43, et seq. Plaintiff contended that his rights as a tenured teacher were violated when defendant took away the on-campus housing and other associated benefits.

The trial court found that the defendant’s action resulted in a substantial reduction in plaintiff’s pay which was tantamount to a demotion. Further, it found that since the defendant failed to follow the procedural requirements of L.S.A.-R.S. 17:45 in reducing plaintiff’s pay, the action was null and void, and of no effect. The court went on to find that the violation amounted to a reduction in pay of $475.00 per month for plaintiff and ordered defendant to reinstate plaintiff with full back salary in that amount.

Defendant appealed, alleging the trial court erred in finding a violation of the Teacher Tenure Law and in failing to apply the law of contract. Plaintiff answered the appeal, requesting that the judgment be modified by increasing the award from $475.00 per month to $975.00 per month.

1. TEACHER TENURE LAW

L.S.A.-R.S. 17:45 sets forth the regulations for probation and tenure of teachers in special schools. It provides in pertinent part, that:

“(3) Whenever a teacher who has acquired permanent status, as set forth in this Section, in a special school is promoted from a position of lower salary or status in such special school to a position of higher status or salary, such teacher shall serve a probationary period of three years in the higher position before acquiring permanent status therein, but shall retain the permanent status acquired in the position of lower status or salary from which he or she was promoted.
“During the probationary period in the position to which promoted, a teacher shall not be disciplined, removed, or demoted to the lower position from which he was promoted except in compliance with the provisions of Subsection A(l) of this Section. At the expiration of the probationary period in the higher position, a teacher, unless removed or demoted in accordance with Subsection A(l) of this Section, shall automatically acquire permanent status in the higher position and thereafter may not be disciplined, removed, or demoted from such higher position in compliance with the provisions of Subsection A(2) of this Section.

We believe this statute should be interpreted in accordance with the interpretation of its counterpart, L.S.A.-R.S. 17:444, which provides for promotions of probationary and tenured teachers in parish and city schools.

The latter provision has been deemed to protect tenured teachers “from removal, demotion or reduction in pay under any and all circumstances save those specified in the statute.” (Emphasis added). McCoy v. Tangipahoa Parish School Board, 308 So.2d 382 (La.App. 1st Cir.1975), writ denied, 310 So.2d 856 (La.1975). Further, under that statute, a reduction in pay has been considered as a transfer to a lower position. Pasqua v. Lafourche Parish School Board, 408 So.2d 438 (La.App. 1st Cir.1981).

Likewise, we conclude that a reduction in “salary” will constitute a transfer to a lower position or a demotion within the meaning of L.S.A.-R.S. 17:45. In reaching this conclusion, we interpret the word “salary” in a broad sense to mean “a reward or recompense for services performed” and to include “emoluments” of the office.

The above conclusion requires us to determine whether the termination of plaintiff’s on-campus housing and associated benefits resulted in a reduction in “salary” within the meaning of the statute. We believe that it did.

The record reflects that as compensation for his services at the school, plaintiff was offered, and accepted, a monthly sum of money plus on-campus housing and one free meal per day. Particularly with respect to the on-campus housing, we note the testimony of Mr. K.N. Orillion, the retired superintendent of the school who recruited plaintiff. He testified that he offered plaintiff the house as an inducement for plaintiff to come to work at the school. Mr. Orillion stated that without the on-campus housing, he did not believe plaintiff would have accepted a position at the school. Further, Mr. Orillion admitted that the housing was taken into consideration in fixing the monthly sum that was paid to plaintiff. Plaintiff also testified that the on-campus housing was a part of his “salary.” The record reveals that at the time Mr. Orillion recruited plaintiff, plaintiff owned a home in Plaquemine and received from his teaching position in Plaquemine a monthly dollar amount greater than that offered by Mr. Orillion. In sum, plaintiffs testimony indicates that only the inclusion of the on-campus housing as part of his “salary” made the offer by Mr. Orillion an acceptable proposition. Further, the record discloses that the value of the housing was considered in calculating plaintiffs retirement benefits.

This evidence reflects that the on-campus housing and free meals were part of plaintiffs “salary.” Further, the record reflects that these emoluments were terminated by defendant on December 15, 1980. The termination of these emoluments resulted in a reduction in plaintiffs “salary” and, therefore, a demotion within the meaning of L.S.A.-R.S. 17:45(A)(3).

In order to demote a tenured teacher under L.S.A.-R.S. 17:45(A)(3), defendant is required to comply with the provisions of L.S.A.-R.S. 17:45(A)(2). There is no evidence in the record that defendant complied with that subsection nor does defendant contend that it did comply therewith. This failure to comply with the statute constitutes a violation by defendant of the Teacher Tenure Law.

2. LAW OF CONTRACT

Defendant argues hereunder that the trial court erred in not applying the law of contract in this instance. Defendant notes that plaintiffs petition stated that defendant provided plaintiff living quarters pursuant to an agreement. Further, defendant points out that the trial court concluded that Mr. Orillion promised the house to plaintiff only for as long as Mr. Orillion was superintendent of the school. Based thereon, defendant contends that once Mr. Orillion retired, which was prior to the termination of plaintiffs emoluments, plaintiff was no longer entitled to the on-campus housing.

We find no merit in this contention for several reasons. First, plaintiff testified that on-campus housing was being provided for him and his family. His testimony fails to reveal that he understood the housing to be provided only as long as Mr. Orillion was superintendent. Further, we find that such a limitation would be contrary to both parties’ testimony as well as to our conclusion that the housing was included within plaintiff’s “salary.” Secondly, the provisions of the Teacher Tenure Law are read into any such contracts and form a part thereof. See State ex rel. Nobles v. Bienville Parish School Board, 198 La. 688, 4 So.2d 649 (1941). To hold that the defendant could escape the provisions of the Tenure Law by contracting for a reduction in compensation at a future time would render the Teacher Tenure Law meaningless and permit the demotion of teachers in derogation of the provisions of that statute.

3. AWARD

The trial court awarded plaintiff $475.00 per month as a result of defendant’s violation of the Teacher Tenure Law. By answer to defendant’s appeal, plaintiff seeks to have this amount increased to $975.00 per month. Plaintiff argues the $475.00 award fails to include the insurance, utilities and maintenance costs. We find no error in the trial court’s award nor do we find merit in plaintiff’s argument. Mr. John LeJeune, who was accepted by the court as an expert in the field of real estate appraisal, testified that $475.00 was the monthly rental value of the property. Further, the record reflects that $475.00 per month was the amount paid to Mr. Kiper as a housing allowance. This amount presumably included the value of the above-mentioned associated benefits since the purpose of the housing allowance was to equalize Mr. Kiper’s compensation with that of plaintiff.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by the defendant, State of Louisiana, Through the Board of Elementary and Secondary Education, State Department of Education, in the amount of One thousand, one hundred sixty-four and 82/ioo ($1,164.82) Dollars.

AFFIRMED.

      . The Louisiana School for the Visually Impaired is a "special school.” L.S.A.-R.S. 17:43 and 17:4.1.

      . In brief, defendant set forth three assignments of error, to-wit:
      (1) The trial court erred in finding a violation of the Teacher Tenure Law; (2) the court erred in finding that defendant’s action constituted a demotion or removal from office; and (3) assuming the court correctly applied the Teacher Tenure Law, it erred in not applying the law of contract. Defendant’s first and second assignments of error go to the question of whether the Teacher Tenure Law was violated and will be addressed as one issue.

      . We note one relevant distinction between the two statutes. L.S.A.-R.S. 17:45 refers to promotions in terms of moving from a position of "lower salary or status ... to a position of higher status or salary"; whereas, L.S.A.-R.S. 17:444 defines a promotion only in terms of moving from a position of “lower salary to one of higher salary.” However, in the instant case, we are concerned only with the issue of salary.

      . Black's Law Dictionary 1200 (5th ed. 1979).

      . L.S.A.-R.S. 17:45(A)(2) provides, in pertinent part:
      “(2) A permanent teacher in a special school shall not be removed from office except upon written and signed charges of wilful neglect of duty, or incompetency, or dishonesty, and then only if found guilty after a hearing by the board or by a committee of the board, which hearing may be public or private at the option of the teacher. At least fifteen days in advance of the date of the hearing, the board shall furnish the teacher with a copy of the written charges, the
      teacher shall have the right to appear before the board, or committee of the board, with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board or committee of the board at the hearing. Any finding of a committee of the board shall be reviewed and acted upon by the full board. The board may set aside or modify the findings of the committee of the board. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.

      . Mr. Kiper was not being provided with housing as was plaintiff.


author: SEXTON, Judge. MARVIN, Judge,

text:
    Daniel R. WINTERROWD, Plaintiff-Appellant, v. The TRAVELERS INDEMNITY COMPANY, et al., Defendant-Appellants.
    No. 15969-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Granted Oct. 5, 1984.
    Writ Denied Oct. 5, 1984.
    See also, La.App., 440 So.2d 822.

      Hargrove, Guyton, Ramey and Barlow by Billy R. Pesnell and Joseph L. Shea, Jr., Shreveport, for Daniel R. Winterrowd,
    Blanchard, Walker, O’Quinn & Roberts by Roy S. Payne, Shreveport, for Burl N. Boswell and The Travelers Indem. Co.,
    Gold, Little, Simon, Weems & Bruser by Edward E. Rundell, Alexandria, for Rheem Manufacturing Co.

      Lunn, Irion, Switze.r, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for E.W. Bliss Co. and Aetna Cas. and Sur. Co.
    Before MARVIN, JASPER E. JONES, FRED W. JONES, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Plaintiff brought suit for personal injuries suffered in the malfunction of an electric powered mechanical press. The jury found in plaintiffs favor and against two defendants, and awarded judgment in the amount of $400,000. We amend, and as amended, affirm.

Plaintiffs action for the traumatic amputation of his fingers was filed on March 23, 1976. The action was brought against Burl N. Boswell, part owner and executive officer of Bosman Industries, Inc., the corporation that employed plaintiff at the time of his injury; Michael and Douglas Boswell, as executive officers of Bosman Industries, Iric.; E.W. Bliss, Co., the manufacturer that produced, constructed and marketed the mechanical press which injured plaintiff; Rheem Co., the manufacturing company that, as an owner/operator of the press, substantially altered it prior to plaintiffs injuries; Donald Brown, who owned the press briefly; and the respective insurers of the aforementioned.

Donald Brown was dismissed from the suit by a directed verdict granted by the trial court at the close of plaintiffs case-in-chief. The jury found in plaintiffs favor in the amount of $400,000 against Burl Boswell, Rheem, and their respective insurers. The jury denied recovery against Bliss and Michael and Douglas Boswell. The plaintiff, Rheem and Burl Boswell have appealed.

Plaintiff contends on appeal that the jury erred in failing to find that Bliss was soli-darily liable in causing plaintiffs injuries, and that the jury abused its discretion by granting an inadequate award. Defendant Rheem contends that the jury erred in holding it liable for plaintiffs injuries, and in failing to cast Bliss in judgment. Burl Boswell similarly asserts that the jury erred in finding him liable and in failing to cast Bliss. Thus the principal contentions on this appeal concern the liability of Bliss, Burl Boswell and Rheem, and the adequacy of the jurors’ damage award.

Plaintiff Daniel Winterrowd, age 31, was employed as a full-time firefighter by the Shreveport Fire Department in 1973. In his off hours plaintiff performed part-time labor for additional income. On December 23, 1975, Daniel Winterrowd accepted employment with Bosman Industries operating a power press in stamping and forming charcoal pans for outdoor Cajun Cookers. On January 8, the press traumatieally amputated the thumb, index and middle finger from plaintiffs left hand, and his right thumb, when it unexpectedly repeated a stroke while he was manually removing a newly trimmed charcoal pan from the dies in the bed of the press.

The mechanical press at issue was manufactured by E.W. Bliss Co. in 1907. It was a 4¾ ton metal forming mechanical press. The press itself was essentially a metal stumping device equipped with enormous mechanical power. Its principal component was a ram which stroked downward at high impact to effectuate the cutting and trimming of metal pans. The ram itself was powered by a revolving bull gear, which gear was itself turned by a narrow crankshaft, which was itself turned by an electrical engine. As the bull gear completed an entire revolution, the metal ram — which constituted the functional component of the mechanical press-performed a single, rapid and powerful downward stroke. The ram on the power press was utilized to trim and shape metal by the sheer downward force and impact of its stroke. To further facilitate the metal stamping or shaping process, interchangeable dies were placed on both the underside of the ram, and also on the bed of the press. When corresponding dies were placed on both the ram and the bed of the press, a single stroke of the press would produce metal shaped into the design consistently incorporated into both the upper and lower dies of the press.

After being manufactured by Bliss in 1907, the mechanical press was sold to Michigan Stamping Co. (MSC) in approximately 1908. This ownership was established at trial through the sales, registry, part orders, and other recorded data which were detailed in Bliss’s comprehensive business records tracing the ownership life of each of the power presses manufactured and marketed by it. It appears that between 1907 and 1925, MSC remained the owner of the press, buying several major replacement parts for it.

However, there is a gap in Bliss’s records with respect to the interval between 1925 and 1938. In 1938, it appears the mechanical press at issue was purchased by Rheem Manufacturing Co. from C.M. Lockwood, Inc. In 1938, Rheem purchased a new crankshaft to install in the mechanical press. In ordering the crankshaft, Rheem did not submit the registration number of the mechanical press and request a replacement part therefore. Rheem instead designed and drew up a blueprint of the crankshaft which they wished to purchase, and thus submitted their order in the form of a blueprint. Bliss complied with the blueprint sent by Rheem, sending to Rheem a crankshaft built in accordance with the specifications of the blueprint sent it by Rheem.

After receiving from Bliss the crankshaft that had been constructed by Bliss in accordance with Rheem’s blueprint specifications, Rheem attached this crankshaft to the mechanical press using a method of affixing the crankshaft which had not been utilized by Bliss in constructing the press.

After Rheem’s modification, Rheem sold the press to Donald Brown, a Houston businessman, in 1974. Brown did nothing to modify the press, and indeed there is no evidence that he even used the press. He instead kept the press in.storage at a warehouse in Houston.

Several months later, Boswell travelled to Houston and purchased the machine for Bosman Industries. Boswell placed a few safety guards on the press and utilized it in the Shreveport based Bosman Industries, in which corporation Boswell was a major stockholder as well as the president. Bos-man Industries was engaged in the manufacture and marketing of “Cajun Cookers,” smokers and other outdoor cookers. Bos-man Industries utilized the mechanical power press purchased from Brown to trim pans for the outdoor cookers.

I.

The Liability of Rheem

A manufacturer is liable for injuries caused by the defective products it manufactures when such injuries are caused by the product’s defective qualities and occur in the normal use or application of the product. A product is defective when it is unreasonably dangerous in normal use. In order to prevail in a products liability suit, a plaintiff must establish that the product is defective — unreasonably dangerous in normal use, and that his injuries were caused by the product’s defects in the course of the product’s normal or intended application. DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981); Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971); Llewellyn v. Lookout Saddle Company, 315 So.2d 69 (La.App. 2d Cir.1975).

It is not required, in a products liability suit, that the plaintiff establish that the manufacturer has been negligent in the design or manufacture of the product. The claimant is required to prove merely the existence- of a defect, and the causal link betwebn that defect and the injuries complained of. DeBattista v. Argonaut-Southwest Ins. Co., supra; Weber v. Fidelity & Casualty Insurance Co. of N. Y, supra; Llewellyn v. Lookout Saddle Company, supra.

To these principles must be added the corollary principle that the manufacturer of a product, for purposes of products liability, includes not only the original manufacturer, but also any entity that substantially modifies or materially alters the product after its original manufacture through the use of different components or methods of assembly. Thus a corporation or other entity may be cast in product liability for product modifications that engender injury-causing defects. See Le-Bouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (La.App. 5th Cir.1980); Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803 (La.1974).

The ram on the mechanical press was actuated by a hand lever operated by the employee. As the employee depressed the hand lever, the ram performed a single stroke. Plaintiffs fingers were amputated by a sudden, unexpected repeat or double stroke of the power ram of the mechanical press. This unexpected repeat stroke occurred while plaintiff manually removed from the die in the bed of the press a charcoal pan which had just been stamped and trimmed by a single stroke of the ram.

This repeat or double stroke of the ram occurred without an activation of the hand lever and was caused by a mechanical malfunction. This malfunction occurred in the following manner: A circular end cap was located on the end of the crankshaft to prevent the adjacent bull gear from slipping. However, the end cap slipped approximately one inch, nearly slipping off the end of the crankshaft. The bull gear thus moved laterally on the crankshaft, away from the body of the press, and towards the end of the crankshaft. The clutch mechanism is attached to, and an integral part of, the bull gear. When the bull gear slipped laterally on the crankshaft, the clutch moved also, and became disengaged because of its misalignment with the clutch latch. Because the clutch became disengaged, the crankshaft responded to the rotation of the revolving bull gear, and the continued rotation of the crankshaft caused a repeat stroke of the ram even though the hand lever had not been used. The nature of the press’s mechanical malfunction was established by the expert testimony adduced at trial, as well as by a post-accident inspection of the press, and was not seriously disputed by any of the numerous mechanical experts that testified.

Rheem had materially altered the mechanical press by modifying the method which had been previously utilized to affix the end cap to the crankshaft. Rheem’s modified technique of affixing the end cap to the crankshaft was implemented in 1938, upon Rheem’s purchase from Bliss of a new crankshaft. After installing the new crankshaft on the mechanical press, and placing the bull gear on the crankshaft, Rheem placed a new end cap on the crankshaft, which end cap had been purchased from Bliss at the same time the new crankshaft had been purchased. However, Rheem did not affix the end cap to the crankshaft by inserting a metal dowel all the way through the end cap and the core of crankshaft as had been previously done. Rheem instead affixed the end cap to the crankshaft by placing two set screws in a hole bored in the end cap. The set screws were placed one on top of the other in the same threaded bore. Evidently, it was envisioned that by tightening the outer screw into the threaded hole, pressure would be brought to bear upon the inner set screw so that it would in turn bind upon, and catch the crankshaft, thereby securing and stabilizing the position of the end cap on the crankshaft.

The outer set screw was not the same “thread” or bore as the hole into which it was placed, the outer set screw was in fact of a slightly larger diameter than the hole. Therefore the outer set screw could not reach or extend deeply enough into the bore to bring pressure on the inner set screw. Simply stated, the outer set screw “tightened up” in the hole before it penetrated to its intended depth. Also, expert testimony indicated that the combined length of the inner and outer set screws was not sufficient to extend all the way through the bored hole in the end cap and bind upon the crankshaft that ran through the center of the end cap.

We conclude that this method of affixing the end cap was defective and unreasonably dangerous precisely because it created a distinct possibility of a misalignment and malfunction of the press’s internal gear system, and caused an unexpected ram stroke of great and potentially crippling force in normal use which caused plaintiff’s injury. We therefore agree with the finding, implicit in the jury’s verdict, that Rheem’s method of affixing the end cap to the crankshaft constituted a defective or unreasonably dangerous alteration sufficient to impose liability on Rheem as a manufacturer under the rubric of products liability.

Furthermore, the evidence indicates that the parties that owned the press subsequent to Rheem’s attachment of the end cap by means of set screws, did not alter or modify this facet of the press’s composition. Neither Donald Brown, nor Bosman Industries modified this mode of attachment. Thus, the causal link between Rheem’s defective modification and plaintiff’s injuries was not broken by mechanical adaptations of subsequent owners.

Rheem further contends that in ordering a crankshaft and end cap by blueprint in 1938, it was merely reproducing the method of attachment that was already in place. However, we have already described in detail how Rheem so altered the method of affixing the end cap to the crankshaft, that the end cap was not securely affixed thereon, and could not be effective in preventing lateral slippage of the bull gear away from the body of the press, or even off the end of the crankshaft. This contention is thus without merit.

Rheem also contends that the trial court erred in refusing to render certain enumerated jury charges. In our view, the instructions requested were either incorporated in the charge actually given by the trial court or were an incorrect statement of the law. Moreover, assuming arguendo the correctness of appellants’ contention, errors in civil jury charges do not require a remand and retrial. It is our duty to review the entire record, and if the record supports the judgment, we are to affirm irrespective of the charge. Hunter v. Office of Health Services, Etc., 385 So.2d 928 (La.App. 2d Cir.1980); Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3d Cir. 1975). As we have previously indicated, we find the evidence is more than sufficient to substantiate a finding of. liability on the part of the defendant Rheem.

II.

The Liability of Burl Boswell

In analyzing the liability of defendant Burl Boswell, we have little difficulty in determining, in the first instance, that he is an executive officer of Bosman Industries. Mr. Boswell is the president and a major stockholder of Bosman Industries, and is on the board of directors thereof. Burl Boswell had express authority over plant and equipment purchases by virtue of corporate resolution. Mr. Boswell was responsible for the selection and purchasing of the metal dies used in power presses, for the safe operating condition of the presses, and for press safety guards. Mr. Boswell personally oversaw production at the Bos-man plant on a day to day basis, and supervised maintenance and safety measures with respect to the mechanical presses that manufactured his company’s products. Mr. Boswell personally acquired the presses used by Bosman Industries, and supervised their inspection and maintenance. See Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir.1978); Hadrick v. Diaz, 302 So.2d 345 (La.App 1st Cir. 1974).

An executive officer is liable to a plaintiff/employee for injuries suffered by him if:

(1) The employer owed a duty to the plaintiff, the breach of which caused plaintiff’s damages,
(2) The duty was delegated by the employer to the executive officer, and
(3) The executive officer breached this duty through his own personal fault.

Greene v. Wright, supra.

We similarly have little difficulty in determining that Burl Boswell is liable, as an executive officer, for plaintiff’s injuries. Using the test articulated above, we con-elude that plaintiffs employer, Bosman Industries, owed plaintiff a duty to provide him with reasonably safe working conditions. LSA-R.S. 23:13. Moreover, we find that this duty was violated by Burl Boswell in several respects.

The record indicates that Mr. Boswell had personally instructed the plaintiff to operate the machine with his hands, and remove the finished products and metal scraps from the bed of the die manually. Although Mr. Boswell was responsible for equipment acquisitions and safety, and personally purchased the press at issue, he never ordered or conducted a thorough inspection of the machine’s working parts before or after purchase. It is clear that an operator placing his hands within the moving parts of this large press possessing such great power is in serious danger if the machine repeats a stroke unexpectedly. Thus, if operators were instructed to use their hands in the placing and removal of products from the working parts of this machine, Boswell had a duty to be certain that the danger of a repeat stroke could not occur. However, the record shows that upon receipt, this machine was not inspected to rule out this possibility.

Also, the duty to provide safe working conditions where the machine’s reliability was not known, could easily have been discharged by providing hand tools to allow an operator, such as the plaintiff, to remove scraps and finished products from the bed of the die without placing his hands in the path of the machine, or by providing operation guards to prevent the operator’s hands from penetrating the path of the press’s stroke while the press was engaged.

Succinctly stated, this executive officer’s duty to provide safe working conditions required that the obvious danger of a repeat stroke be precluded or that operators be furnished tools and/or guards to prevent their hands from being caught in the path of the press while in operation. See Wilson v. Aetna Cas. & Sur. Co., 401 So.2d 500 (La.App. 2d Cir.1981).

We therefore find that the employer, Bosman Industries, breached a duty to plaintiff, Daniel Winterrowd, to provide him with reasonably safe working conditions, and that the breach of this duty was a cause of plaintiff’s injuries. It is clear that this duty to provide safe working conditions was delegated from the employer to this executive officer, a major stockholder, part owner and manager, who exercised complete authority over plant operations and safety. It is likewise clear that this officer was personally at fault as it was his own omissions and substandard actions which resulted in plaintiff manually operating the machine—which had the potential for a double stroke—without proper safety equipment. Therefore, the record amply supports the jury finding of liability on the part of the defendant Boswell.

III.

Liability of Bliss

A manufacturer must provide warning of any danger inherent in his product’s normal use which is not within the knowledge of an ordinary user. Hebert v. Brazzel, 403 So.2d 1242 (La.1981); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978); Braxton v. Georgia-Pacific Corp., 419 So.2d 125 (La.App. 2d Cir.1982). The manufacturer of a potentially dangerous instrumentality has a duty to instruct reasonably foreseeable users with regard to its safe use. This duty exists even though the product is not defective. Amco Underwriters of Audubon Ins. Co. v. American Radiator and Standard Corp., 329 So.2d 501 (La.App. 1st Cir.1976). See also Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir.1977). It is well established, however, that the duty to warn does not encompass dangers that are or should be obvious to the ordinary user. Foster v. Marshall, supra.

In order to recover for a manufacturer’s failure to warn, a plaintiff must establish that the product engenders a risk or danger of which the manufacturer has failed to warn and that that danger is not obvious to the ordinary user. However, the user must additionally establish by a preponderance the existence of a causal connection between the failure to warn and the occurrence of plaintiff’s injuries. Chappuis, supra.

We have little difficulty in finding, in the first instance, that the mechanical press here at issue engendered a substantial risk or danger. The risk or danger posed by the press was that which occurred here, an unactivated repeat or double stroke of the power ram. This danger constituted a palpable possibility because the machine was not equipped with a single stroke mechanism that might have effectively prevented a double stroke. The danger of an uninitiated double stroke was a distinct possibility for the added reason that a misalignment or disengagement of the clutch could foreseeably result in a double stroke. The conclusion that the press posed a danger is underscored by the enormously powerful and potentially crippling force of this press’s power stroke. Despite the presence of this risk or danger, which inhered even in ordinary use, under normal operating conditions, Bliss placed no warning of any kind on the press.

We also find that the danger of a repeat stroke is not obvious to the ordinary user. Bliss has vigorously contended on appeal that the danger of placing one’s hands in the path of the ram stroke of a mechanical press is obvious. However, this contention, although superficially accurate, is nevertheless misleading. The danger of placing one’s hands in the path of the power ram is obvious when the hand lever which operates the press has been activated. However, the danger of placing one’s hands in the path of the ram when the hand lever has not been activated is not obvious. The potential misalignment and disengagement of the clutch and a resulting uninitiated repeat stroke is not obvious to the ordinary user. Moreover, an ordinary user’s experience with the mechanical press would strongly indicate to that user that the press performs a stroke only when activated. In summary, the danger of placing one’s hands in the path of the ram stroke—when the press has not been activated by a triggering of the hand control lever—is not obvious to the ordinary user.

We find, in the last instance, that plaintiff has proved by a preponderance that Bliss’s failure to warn was a causal factor in his injuries. The plaintiff testified he would have abided by such warnings. We find it reasonable to conclude that this plaintiff, who had little experience with machines of this kind, would have heeded a warning from the manufacturer due to the machine’s obvious potential for great harm. But most importantly, compli-anee with warnings as to the dangers of operating the machine manually or without adequate safeguards would have prevented plaintiffs injuries. Thus, because compliance with a manufacturer’s warning would have prevented plaintiff’s injuries, we find that Bliss’s failure to warn was a causal factor in plaintiff’s injuries. It is not necessary that Bliss’s failure to warn be the sole factor in causing plaintiff’s injuries, in order for Bliss to be cast in judgment. Bliss’s substandard conduct is actionable if it is a substantial factor in plaintiff’s injuries without which the crippling injuries would not have occurred. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Amco Underwriters of Audubon Insurance Co. v. American Radiator and Standard Corp., supra.

We find for the foregoing reasons that Bliss is solidarily liable for plaintiff’s injuries because of its failure to warn of dangers which were not obvious to an ordinary user.

IV.

Quantum

Plaintiff contends that the $400,000 award granted him by the jury is so inadequate as to constitute an abuse of the jury’s broad discretion in determining damages.

Plaintiff, age 31, is married and has three children. He graduated from high school in 1970 as an average student. Plaintiff worked at various part-time jobs while attending junior high and high school. Upon graduating from high school, plaintiff worked at several different jobs until October of 1971, when he obtained a position as a firefighter with the Shreveport Fire Department. Plaintiff continued to work as a firefighter from the time of his employment in 1971, until he sustained the crippling injuries to his hands at Bos-man Industries’s Shreveport plant on January 8, 1976.

As a firefighter, plaintiff worked 24 hours and then was off work the following 24 hours in a pattern of alternating 24 hour intervals. This pattern of alternating a 24 hour work day with a day off continued for a ten day interval with plaintiff working for five days and having off five days during the ten day period. Following this ten day interval, plaintiff would have six days off before resuming a ten day period of alternating 24 hour blocks of work and off time. This work schedule is quite conducive to outside part-time employment, affording a firefighter approximately 20 off days a month on the average. Outside employment is thus a common practice among firefighters.

During the roughly four years between October of 1971 and January of 1976 that he worked as a firefighter, plaintiff performed various part-time jobs outside the Department. From October of 1971 until October of 1972, plaintiff worked part-time for a drapery hanging service. Plaintiff unloaded rail cars for the Kansas City Southern Railroad from October of 1972 until December of 1973, at which time plaintiff lost his job when the railroad laid off numerous workers in an employee cutback. Plaintiff performed no other part-time work until he was employed by Bos-man Industries on approximately December 15, 1975. Plaintiff proceeded to work for Bosman Industries for some three weeks at the rate of $3.50 an hour, until he sustained his injuries on January 8, 1976.

Following the January 8, 1976 accident, plaintiff remained out of work for an entire year, recuperating from his injuries. He resumed employment with the Shreveport Fire Department in January of 1977 as a communications and dispatch officer. Plaintiff earned approximately $22,100 at that position in 1982, but has not performed any part-time work since sustaining his injuries in the industrial accident at Bosman Industries in January of 1976.

Plaintiff obtained part-time earnings of $1,482 in 1972, $2,228 in 1973, no part-time earnings in 1974, ancl part-time earnings of $98 in 1975; his part-time earnings in the first eight days of 1976 totalled something less than $270.

Plaintiff has no post-high school education. Expert testimony established that he does not have the scholastic skills necessary to be a successful student on the collegiate level, and that his injury has drastically impaired his employability in the blue collar positions in which he previously labored on a part-time basis.

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., 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); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.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; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir.1982); Greene v. Wright, supra.

Since the jury award was not itemized, in order to determine whether plaintiffs award is the lowest acceptable amount which the jury could assess on the evidence, we first of all look to the proof of the specific items of special damage and subtract those from the total in order to evaluate the adequacy of general damages and wages lost from prospective part-time employment.

Plaintiff incurred proven medical expenses and lost wages of $10,374 and $11,-340, respectively, from the loss of his full-time earnings from the date of his injury on January 8, 1976, until he resumed employment with the Shreveport Fire Department in January of 1977.

These two sums equal just under $22,-000. Subtracting this total from the award of $400,000, leaves approximately $378,000. It is our task to determine if this sum is adequate to compensate plaintiff for loss of future part-time wages and general damages.

The burden is on the plaintiff to prove that because of his disability he will suffer a loss of income. 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 plaintiff’s 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).

Defendants’ expert set plaintiff’s loss of part-time earning capacity at $76,000. On the other hand, plaintiff’s expert estimated the loss of that capacity to be $420,000, and included in his projection the assumption that plaintiff would have worked full-time after retirement. Defendants’ expert discounted plaintiff’s award at the rather high rate of ten percent. The plaintiff’s expert assumed plaintiff would have utilized almost every day off in part-time labor.

The plaintiff contends that $200,-000 in general damages is the lowest supportable award. Assuming arguendo the correctness of this position, substracting this sum from the $378,000 left after special damages are deducted leaves a balance of $178,000 as an award for loss of future wages. We cannot say that this sum is inadequate as an abuse of discretion for the award of future wages here. Viator v. Gilbert, supra.

V.

Summary and Decree

In summary, we affirm the jury’s finding of liability on behalf of the defendant Rheem and the defendant Boswell and determine that the jury erroneously failed to find liability on the part of the defendant Bliss. We will therefore amend the judgment to east Bliss and its insurer, Aetna, in solido with the other defendants. It will furthermore be necessary to recast that part of the judgment reflecting contribution. The defendants Boswell and their insurer, The Travelers, and Rheem Manufacturing Company both filed third party demands against each other and Bliss. However, our search of the voluminous record indicates that Bliss only filed a third party demand against Boswell, and not against Rheem.

Therefore, the decree portion of the judgment herein will be amended to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that the aforesaid verdict be and is hereby made the judgment of this court; and that, accordingly, there be judgment herein in favor of plaintiff Daniel R. Winterrowd, and against defendants Burl N. Boswell, and his insurer, The Travelers Indemnity Company, and Rheem Manufacturing Company, and E.W. Bliss Company, and its insurer, Aetna Casualty and Surety Company, in solido, for the full sum of Four Hundred Thousand and No/100 ($400,000) Dollars, together with legal interest thereon from January 7, 1977, the date of judicial demand, until paid, and for all costs of these proceedings.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of defendants Douglas Merle Boswell and David Michael Boswell, and against plaintiff Daniel R. Winterrowd, dismissing the claims of Daniel R. Winterrowd at his cost and expense.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that interve-nor, The Travelers Insurance Company, is awarded the sum of Forty One Thousand Thirty-Three and 06/100 ($41,-033.06) Dollars for workmen’s compensation benefits and medical expenses paid to or on behalf of plaintiff through February 25, 1983, which sum is awarded in preference and priority out of the above mentioned judgment in favor of plaintiff Daniel R. Winterrowd, together with legal interest, to be paid from the date of judicial demand by intervenor as to the portion of said sum paid prior to December 8,1977, and with legal interest on the remainder of said sum to be paid from the date payment was made by interve-nor. Intervenor shall further be entitled to a credit, in the amount of any sums paid to plaintiff pursuant to the judgment herein, against any obligation for future payments to or on behalf of plaintiff under the workmen’s compensation laws.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there will be judgment herein in favor of the third-party plaintiffs Burl N. Boswell and The Travelers Indemnity Company, and against the third-party defendant Rheem Manufacturing Company; and against the third-party defendant E.W. Bliss Company and Aetna Casualty and Surety Company; for contribution of one-third each of the judgment herein rendered in favor of the plaintiff.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the third-party plaintiff Rheem Manufacturing Company and against the third-party defendant Burl N. Boswell and The Travelers Indemnity Company; and against the defendant E.W. Bliss Company and Aetna Casualty and Surety Company; for contribution of one-third each of the judgment herein rendered in favor of the plaintiff.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the third-party plaintiff E.W. Bliss Company and Aet-na Casualty and Surety Company, and against the third-party defendant Burl N. Boswell and The Travelers Indemnity Company for contribution of one-third of the judgment herein rendered in favor of the plaintiff.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all other claims and third-party claims be dismissed with prejudice at the cost of the parties asserting same.”
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs herein are to be borne equally by the defendants Rheem Manufacturing Company, E.W. Bliss Company, and Burl N. Boswell, and their respective insurers, as appropriate.”

AMENDED, AND AS AMENDED, AFFIRMED.

MARVIN, J., concurs in part and dissents in part, and assigns written reasons.

MARVIN, Judge,

concurring in part and dissenting in part.

I concur, in the majority opinion except insofar as it reverses the trial court judgment and holds Bliss solidarily liable with the other defendants.

The majority correctly states in the second paragraph under the heading “Liability of Bliss,” that in order for a plaintiff-user of the press to recover against Bliss because of its failure to warn of a non-obvious danger, the plaintiff

“must additionally establish by a preponderance the existence of a causal connection between the failure to warn and the occurrence of plaintiffs injuries.”

There is substantial evidence in this record upon which the jury could reasonably have concluded that this burden had not been met by plaintiff or by third party plaintiffs. There is considerable dispute over what caused the press to double stroke and certainly a reasonable mind could conclude that Bliss’s failure to warn was not a cause in fact or in law of the plaintiffs injury. We do not reverse a trier of fact in the absence of clear error.

I see no clear error in the jury verdict or judgment with respect to Bliss and would affirm in that respect.

      . LSA-R.S. 23:13 reads as follows:
      § 13. Employers’ duty as to safety
      Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate .to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.

      . The ANSI standards promulgated by the American National Standards Institute represent precautionary measures adopted through the consensus of government agencies, industrial concerns, labor representatives and insurance companies. Section 6.1.2 of ANSI Bll.l standards effective in 1976 with respect to "safety requirements for the construction, care, and use of mechanical power presses” provides in part that:
      "It shall be the responsibility of the employer to institute ... procedures that will eliminate ... the need for the operator to place his hands or fingers within the point of operation.”
      The comment to Section 6.1.2 states that "A primary objective of this standard is to eliminate exposure of operator’s hands or fingers to the hazards within the point of operation.” Such standards, while not definitive in assessing liability, do provide guidelines for determining negligence. See generally, Parker v. South La. Contractors, Inc., 370 So.2d 1310 (La.App. 1st Cir.1979).


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. William Roger WISENOR, Appellant.
    No. 16028-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Kidd, Jones & Kidd by Paul Henry Kidd, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph Mickel and Michael D. Brown, Asst. Dist. Attys., Monroe, for appellee.
    Before PRICE, C.J., MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

With three assignments of error, Wise-nor appeals his conviction by jury of two counts of distribution of marijuana and his sentence on each count to five years at hard labor to be served consecutively.

Defendant’s first two assignments do not relate to the trial, but to his motion for a continuance, which was denied, and to the colloquy between the court and his counsel which occurred after the continuance was denied when his counsel told the prospective jurors that he would not “participate” in the trial for reasons that he could not discuss with them. Defendant’s third assignment relates to the sentences.

The transcript of the trial was not designated by defendant as a part of the record in this appeal. Defendant was convicted for selling marijuana to undercover narcotics agents on two occasions on November 8, 1982. He was billed for these crimes on November 29 and a lawyer was appointed for him on December 3, 1982. Appointed counsel promptly filed motions for discovery and for a preliminary hearing.

On January 10, 1983, at the scheduled preliminary hearing, hired counsel appeared for defendant and was granted a continuance. After a further continuance, preliminary hearing was held January 19, with hired counsel participating and appointed counsel being formally relieved.

The trial of the case was continued on the dates of February 4, March 14, 15, and April 4. Trial was held on April 6, 1983. The minutes of the court show that on Tuesday, April 4, defendant’s counsel was granted a continuance when he “indicated to the court that he was not prepared for trial and requested a continuance until Thursday [April 6] ...” The April 6 minutes show that defendant’s counsel “indicated ready for trial, but thereafter moved for continuance, [stating] unpreparedness (see record).”

At the hearing on the motion for continuance, defendant’s counsel made these remarks:

“I saw [defendant] in jail on January the 6th, 1983. Now I recall, ... talking to [defendant] once, perhaps twice, maybe even three times, in jail concerning the possibility of a plea bargain. It was my opinion that this was a matter that had to be plea bargained, and I think I relayed that to the state. Primarily my efforts up until sometime in March were geared totally to negotiation of a plea_ I simply ... had gotten busy on a number of matters, and perhaps I’m handling more work than I ought to be handling and through my own workload I failed to really do what was necessary to get ... prepared for trial. I don’t in any way indicate that the state misled me. They did not mislead me_”

Denying the continuance, the court said:

“The only grounds for this motion alleged is ... that defense counsel, because of pressure of his practice ... feels that he has not adequately prepared for trial.... in fact, it is admitted that it is not the fault of the state and the Court also takes cognizance of the fact that Mr. Paul Kidd is both a reputable and experienced attorney of the bar, has tried many criminal cases and the Court frankly can’t conceive that defense could have any better counsel than Mr. Paul Kidd. * * *
"... [T]he Court recalls that on both times, April 4th, you indicated in court, whether or not it appears on the record, that you felt unprepared. But on April 4th if you felt unprepared then that should have been notice to begin preparation and the allegations you allege that you feel that the District Attorney — other members of the District Attorney’s Office, other than the trial attorney, are pushing the matter to trial because of some vendetta with you then that should have forewarned you long ago to be ready for trial on this matter or any other matters. The Court simply cannot allow counsel on the last minute to come in on the day that has been set for trial for ... at least two months and say we feel unprepared, therefore, we want a continuance. Matters- would never be reached for trial if defense counsel were allowed to escape until such time as they announce that they feel completely ready — prepared for trial ...”

Jury selection then began. After the first prospective juror was tendered by the state to the defense, defendant’s counsel stated:

“... I address all members of the jury. You are about to witness an unusual trial and for reasons that I cannot discuss with you, and you may not understand, I will not participate in this trial because I feel that there are reasons that I should not and to do so would lend credence and acceptance and validity to that which I believe should not. So consequently I will not accept or reject, I will simply sit quietly.”

After the jury was retired, the court inquired:

“Mr. Kidd, are you aware that the Court can find you in contempt for this activity?”

Counsel answered:

“In all due respect, I believe I have a very valid motion ... that I should not be forced to trial.... If I participate I know what will happen. It will color the motion because I will be aggressive.... ”

The court concluded:

“[T]he Court feels that ... by your ... omission to act, you’re obstructing or interfering with the orderly administration of justice and impairing the dignity of the Court and respect for its authority. You are an officer of the Court, ... and ... you have taken the position that since your motion has failed and you feel that you are being made to try a case that you don’t wish to try at this time that you are going to assure that the defendant does not get a — complete representation by your refusal to act. If that’s not contempt of Court I don’t know what contempt of Court is. * * *
“Now this Court is going to be in recess until 1:30.... Be back here at 1:30 and we will decide then what your actions are going to be; at that point and what the Court’s actions will be if you persist in refusing to do your duty as defense counsel. This Court perceives that your duty is to defend this man to the best of your ability. If you have — if your motions are correct, and they may well be, you have the appellate process to protect your client. You have this Court, because I am not trying to force you to trial for [just] any reason. I have merely stated that I feel that you have had the time to prepare this case for trial and the fact that you ... feel or say that you have not done so is no grounds for a continuance in this case. This Court is also aware of the fact that you are very able counsel and that you could try one of these cases easily. You have much more experience at the bar than the counsel for the state. You have almost as much experience at the bar as the Court. So I do not perceive that any argument you have given this Court means that you are not able to proceed with this trial, and if you have been wronged by any decisions^ or orders of this Court there is the appellate process. The defendant will be amply protected by the appellate procedures of the judicial system. If he has not been granted a fair trial then that can be the finding of the Court, perhaps even the finding of this Court. The Court is going to be in recess until 1:30. At that time a decision will be made on this matter ... be prepared at 1:30 to tell the Court ... if you’re going to persist in the actions you have just demonstrated or whether you are going to proceed with this trial and do your duty as defense counsel.”

Counsel replied:

“Judge, I do want to note my objection to the ruling of the Court that I must proceed ... and I would also like to give ... oral notice of my intent to apply to the Second Circuit Court of Appeals to the ruling of this Court on the proceedings that have happened today, ... I hope that the Second Circuit will accept writs and then stay it.”

Defendant concedes that denial of a continuance is not grounds for the reversal of a conviction in the absence of a showing of specific prejudice or abuse of discretion. Certainly this counsel’s preparation time (January 10 to April 6) is not so minimal that the basic fairness of the proceeding is obviously questionable. See State v. Guidry, 432 So.2d 1118 (La.App. 3d Cir.1983), writ den., cases cited therein, and State v. Brooks, 431 So.2d 865 (La.App. 2d Cir. 1983). Defendant’s argument on his first assignment is that the principle of those cases should not be applied “mechanistically” to these circumstances because his constitutional right to competent counsel is “implicated.”

In his second assignment relating to the court’s threat to hold his counsel in contempt, defendant argues that the court created an inherent conflict of interest between him and his counsel which was to his “obvious detriment” because it caused his counsel to have “divided loyalties.”

The essence of these contentions, which urge reversal and remand for new trial, is that, without “competent” counsel, he did not get the fair trial guaranteed him by the state and federal constitutions. Without the transcript of the trial having been designated as a part of this record by defendant in this appeal, we simply cannot say that his counsel did not competently represent him or that he was not afforded a fair trial. These issues hinge on his counsel’s preparedness in the light of what defenses may have been available to defendant. These issues are properly raised in an application for post conviction relief. State v. Burkhalter, 428 So.2d 449 (La.1983).

Prom this record, we can, and do, determine that the trial court did not err either in denying the continuance or in threatening to hold defendant’s counsel in contempt.

As a lawyer and officer of the court, counsel should have known that the court has a duty to require that its proceedings be conducted in an expeditious manner. CCrP Art. 17. Counsel had asked for and obtained a continuance two days before on the grounds that he was unprepared. On April 4, he asked for a continuance until Thursday, April 6, and cannot complain that he was suddenly, and without warning, called to trial on April 6, especially when the case had been set for trial and continued four times. Defendant has not alleged or shown specific prejudice. He knew or should have known that a trial court, in its wide discretion, may or may not grant a continuance on the general grounds of lack of preparation. CCrP Art. 712, State v. Robinson, 423 So.2d 1053 (La.1982).

Moreover, once the trial court heard and denied his motion, counsel knew or should have known, contrary to his assertion, “I believe I have [or hadl] a very valid motion ... ”, that his remedy was either to apply for writs or to obey the court’s ruling.

“The correctness of a court order or ruling is not contested by deciding to willfully disobey it, without suffering the consequences of that disobedience. Respect for judicial process is a small price for the civilizing hand of law. Absent a showing of transparent invalidity or patent frivolity surrounding the order, it must be obeyed until stayed or reversed by orderly review_” Kidd v. Caldwell, 371 So.2d 247 at 252 (La.1979).

Defendant’s counsel here was the relator there. In the circumstances here shown, counsel’s claim of detriment to his client is not obvious and is without specificity and his claim of inherent divided loyalty is remote and tenuous.

In this record, we find no error in the trial court’s denying a continuance or threatening defendant’s counsel with contempt.

SENTENCE ASSIGNMENT

A PSI report was prepared for the court and was reviewed by defendant’s counsel, who stated, “there are no inaccuracies in it.” This 23-year-old defendant was exposed to consecutive sentences totaling 20 years. He was sentenced to 10 years. The PSI noted three burglary convictions and one conviction for possession of marijuana. Defendant was on parole and probation when he committed the crimes for which he was charged. The court articulated the sentence in accord with CCrP Art. 894.1. The sentence is individualized and is not excessive, in our opinion.

Defendant’s complaint that he was sentenced to the Louisiana State Penitentiary contrary to LRS 15:824 is a matter which, if error, may be corrected on appeal. See State v. Siegel, 354 So.2d 525 (La.1978). That language in the sentence may be mere surplusage because § 824 refers to his commitment and not to the sentence. See Haynes v. Henderson, 480 F.2d 550 (CA5, 1973), rehearing denied. Out of an abundance of precaution, we recast the sentence to delete the reference to the Louisiana State Penitentiary.

Conviction affirmed. Sentence recast and affirmed.

      . Counsel did not apply to this court for writs.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Doak E. COLLINSWORTH, Appellant.
    No. 16071-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Ford E. Stinson, Jr., Benton, for appellant.
    Henry N. Brown, Jr., Benton, for appel-lee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Doak Collinsworth, appeals a sentence of thirty five years at hard labor without benefit of parole, probation or suspension of sentence after a plea of guilty to the crime of armed robbery in violation of La.R.S. 14:64 assigning three errors:

1. Defendant was deprived of effective assistance of counsel at his sentencing;
2. Defendant was deprived of a sentencing hearing; [and]
3. The sentence was excessive and constitutes cruel and unusual punishment.

FACTS

Defendant was originally charged with armed robbery. Pursuant to a plea bargain, the defendant pled guilty as charged on February 11, 1980, with the understanding that the State would not file a multiple offender bill and would not prosecute him on an unrelated charge of auto theft. A presentence investigation was ordered and the defendant was remanded to the custody of the Sheriff pending sentencing. During the interim between the plea and sentencing, the defendant escaped and was later arrested in Georgia on unrelated charges. The defendant was returned to Bossier Parish for sentencing on August 17, 1983.

ASSIGNMENT OF ERROR NO. 1

Although the minute entry of August 17, 1983 indicates that defendant was present in open court represented by Ford Stinson, Jr. of the Indigent Defender Board, the sentencing judgment signed by the judge affirmatively states that the defendant was represented by the Indigent Defender Board, and the state’s brief filed in connection with this appeal states that defendant was represented at the time of the sentencing. Stinson, as appellate counsel, argues that not only was he not present in court to represent this defendant at sentencing but also he was not even aware that his office represented this defendant until after the sentence was actually imposed when the prosecutor stated:

For the record, Mr. Stinson is here representing the public defender’s office, which was appointed to represent Mr. Collinsworth.

Article I, § 13 of the Louisiana Constitution of 1974 provides that a defendant has a right to assistance of counsel at every stage of the proceedings. The Sixth Amendment to the United States Constitution guarantees assistance of counsel at every critical stage of the proceedings, including sentencing. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be vacated. State v. Williams, 374 So.2d 1215 (La.1979); State v. White, 325 So.2d 584 (La.1976).

Because this record does not affirmatively show that defendant made a knowing and intelligent waiver of counsel at his sentencing [See State v. Tellifero, 337 So.2d 1173 (La.1976)], the relevant inquiry becomes whether defense counsel’s assertion that defendant was not represented by or had no assistance of counsel at his sentencing is supported by this record.

Our review of this record reveals that over three years had elapsed since the last contact of record by the indigent defender staff with this defendant. The record also indicates that Stinson’s first record contact with this defendant was at the end of the sentencing. On the other hand, the record does not indicate that the Indigent Defender Office ever withdrew of record from its representation of this defendant.

From the outset of the sentencing hearing, the trial judge addressed himself directly to the defendant. There is no affirmative indication that any attorney was present with defendant through the trial judge’s questioning of the defendant in connection with the facts on which he based his sentence and the actual imposition of the sentence. In fact, when, after imposition of sentence, the defendant asked if he could speak, the trial court told him he could not. To the point where the,defendant was instructed to leave with the Sheriff, the colloquy lends support to defendant’s assertion that he was unrepresented by or had no assistance of counsel.

Conversely, the record does not state affirmatively that defendant was unrepresented or unaccompanied by counsel, but rather for the record it was stated at the end of the sentencing proceeding by the district attorney that Stinson was present representing the Indigent Defender Board who represented the defendant. We find no statement from Stinson at that point either affirming or denying this assertion. The trial judge’s sentencing judgment is consistent with the minute entry which indicates that defendant was represented by counsel at sentencing.

Under these circumstances, we conclude that a contradictory hearing should be held in the trial court to determine if the defendant was in fact assisted or represented at his sentencing by counsel who was present in court with defendant for that purpose. Art. I, § 13, La.Const. (1974). See also La.C.Cr.P. Art. 3 and compare State v. Senegal, 333 So.2d 639 (La.1976).

ASSIGNMENT OF ERROR NO. 2

Defendant next argues that he was denied a sentencing hearing because of his deprivation of the assistance of counsel at his sentencing.

No full scale evidentiary hearing is required at sentencing in a non capital case. State v. Bosworth, 360 So.2d 173 (La.1978). However, a sentencing must be conducted in open court [La.C.Cr.P. Art. 871] and in compliance with La.C.Cr.P. Art. 894.1. Upon proper request and appropriate allegation in order to avoid an excessive sentence improperly resulting from materially false information, a defendant is entitled to an opportunity to deny or explain prejudicial or derogatory information made available to the sentencing judge. State v. Trahan, 367 So.2d 752 (La.1978). See also State v. Telsee, 388 So.2d 747 (La.1980).

There has been no allegation made here that there was materially false information which was withheld. In fact, the argument is that because counsel was unaware of the sentencing he had no opportunity to converse with the defendant or the trial judge regarding the contents of the presentence report. Consequently, there has been no request made to the sentencing judge for such information.

Accordingly, in the posture in which this assignment is presented, in actuality, there is nothing for us to review.

ASSIGNMENT OF ERROR NO. 3

Defendant finally argues that the sentence imposed is excessive although he does not contend that La.C.Cr.P. Art. 894.1 was not complied with.

Article I, § 20 of the Louisiana Constitution of 1974 protects a defendant against the imposition of excessive punishment. A sentence constitutes excessive punishment if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). To prevent the possible imposition of excessive punishment and to guide the trial court in its sentencing tasks, the legislature enacted La.C.Cr.P. Art. 894.1 which sets forth factors which justify a sentence of imprisonment and other factors which tend to indicate suspension of sentence or probation as appropriate. State v. Smith, 430 So.2d 31 (La.1983).

Our review of this record reveals that the trial court meticulously complied with Article 894.1. When Article 894.1 has been complied with, a sentence will not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentence within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). No such abuse is present in this case.

First of all, armed robbery is considered to be an extraordinarily serious offense in the State of Louisiana. State v. Jones, 412 So.2d 1051 (La.1982). The penalties provided by law for armed robbery are severe and the actual sentence imposed here is within the lower range provided for by La.R.S. 14:64. It is fully supported by the defendant’s propensity for criminal behavior as reflected by his behavior both before, during and after this offense.

Defendant was 23 years old at the time of sentencing. At the time of the instant offense, he was classified as a second felony offender. The factual circumstances surrounding this offense reveal that the defendant went to a used car lot and accompanied by a salesman took a vehicle for a test drive during which he ordered the salesman out of the vehicle at gunpoint and took the vehicle. The defendant was arrested the next day after a high speed chase during which it was necessary to shoot him in order to effect his capture. Five and one half months after this incarceration, the defendant escaped from authorities while he was being taken for medical treatment. After this escape, he traveled to Georgia where he kidnapped and killed a victim taking his credit cards and automobile. Prior to the instant offense, the defendant acquired a juvenile record including shoplifting, simple theft and robbery. Although he was only nineteen years old at the time of the instant offense, he had adult convictions for illegal possession of alcoholic beverages, possession of marijuana, forgery and theft. He was on probation when the instant offense occurred.

As did the trial judge, we find no mitigating factors which would compel a lesser sentence. This extended imprisonment is not needless and purposeless but rather is imposed to negate defendant’s opportunity to commit crimes in the future. This sentence. is adequately particularized and is not excessive.

For the foregoing reasons, this case is remanded to the district court for an evi-dentiary hearing. Should the trial judge find that defendant was not assisted or represented by counsel at the time of the sentencing, he is ordered to vacate his original sentence and re-sentence him in light of the principles articulated in this opinion and in accordance with law. If the trial judge determines after contradictory hearing that the defendant was assisted or represented by counsel, the right to appeal from that ruling is reserved to the defendant. Absent such an appeal, the conviction and sentence will be affirmed.

CASE REMANDED WITH INSTRUCTIONS.

      . However, we would note parenthetically that if, after remand, the trial judge determines that re-sentencing is required, upon proper request and allegation, the trial judge should afford defendant an opportunity to traverse or explain any allegedly false or invalid information of a substantial nature on which any future sentence is based. State v. Parish, 429 So.2d 442 (La.1983). See also State v. Telsee, supra.

      . The penalty provision of this statute provides:
      Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Anthony STEVENS, Appellant.
    No. 16142-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Kidd, Jones & Kidd by Jerry L. Jones, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph Mickel, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The defendant, Anthony Stevens, pled guilty to conspiring to distribute marijuana in violation of LSA-R.S. 40:966 and LSA-R.S. 14:26 and was sentenced to 3½ years at hard labor. He appeals his conviction and sentence relying on three assignments of error. We affirm.

Facts

Defendant was charged by bill of information with distribution of marijuana on December 20, 1982. He agreed to plead guilty to attempted conspiracy to distribute marijuana pursuant to a plea bargain agreement. The plea was accepted by the trial court on March 14, 1983. At that time the trial judge explained to defendant the maximum possible sentence on the reduced charge was 2lk years. Prior to defendant’s sentencing the state moved to vacate the guilty plea on the grounds that defendant pled guilty to a nonexistent offense under Louisiana law. A defendant cannot be charged with a combination of inchoate offenses such as attempted conspiracy. State v. Fames, 365 So.2d 1361 (La.1978); Note, 9 La.L.Rev. 413 (1949); Comment, 28 La.L.Rev. 543 (1968) (See footnote 115 at p. 544). At a hearing on the motion, the plea was ordered vacated.

The bill of information was subsequently amended to charge defendant with conspiring to distribute marijuana and he pled guilty to that offense on May 6, 1983.

Defendant’s three assignments of error are:

(1) the trial court erred in ordering the plea of guilty to attempted conspiracy to be withdrawn;
(2) the trial court erred in sentencing him to 3V2 years when he had previously pled guilty to an offense carrying a maximum exposure of 2V2 years; and
(3) once the plea of guilty to attempted conspiracy was accepted by the trial court, the doctrine of double jeopardy estopped the state from charging defendant with a crime carrying a longer maximum sentence.

Assignment # 1

While defendant concedes that an accused may not be found guilty of the nonexistent offense of attempted conspiracy, he, nevertheless, argues that he could validly plead guilty to the offense and that his consent was required before the plea could be vacated. His claim that he could plead guilty to a nonexistent offense is based upon the principle that guilty pleas are not subject to the same restrictions as verdicts. He relies upon State v. Green, 263 La. 837, 269 So.2d 460 (1972). That case requires the lesser offense to which the guilty plea is accepted to contain no element not included in the crime charged. It does not permit a plea to a nonexistent crime. See State v. Eames, supra; LSA-C.Cr.P. art. 558.

The court is without jurisdiction ratione materiae to accept a guilty plea to a nonexistent offense. State v. Cook, 372 So.2d 1202 (La.1979). See 9 La.L.Rev. 413 (1949). In Cook it was held that the trial court was without jurisdiction to accept a guilty plea to a crime which contained an essential element not included in the crime charged. The court here was without jurisdiction to accept a guilty plea to a nonexistent crime. Jurisdiction ratione materi-ae is nonwaivable and without it, a court’s action is an absolute nullity and may be attacked at any stage of the proceedings, including appeal. State v. LaBorde, 233 La. 556, 97 So.2d 393 (1957). We find no error in the trial court’s action of vacating the guilty plea without defendant’s consent.

This assignment of error lacks merit.

Assignment # 2

Defendant argues that once the trial court accepted the guilty plea to attempted conspiracy, the. maximum sentence he could receive was set at 2½ years which is the maximum sentence for that offense. This argument is untenable. Since the law does not recognize the offense of attempted conspiracy, there is no penalty for such an offense. The trial court’s appraisal of the maximum penalty was sheer conjecture.

We also note that when the trial judge told defendant what the maximum penalty was, the judge was merely explaining to defendant what rights he was giving up by pleading guilty and the possible consequences of doing so. The court’s assessment of the maximum penalty was not an agreement with defendant to only sentence him to 2½ years.

This assignment of error lacks merit.

Assignment #3

Defendant’s double jeopardy argument also lacks merit. Under Louisiana law, when a defendant pleads guilty jeopardy does not begin until a valid sentence is imposed. LSA-C.Cr.P. art. 592. Not only had no sentence at all been imposed upon defendant, if one had been it would have been invalid since the offense was nonexistent. Jeopardy never attached.

This assignment of error lacks merit.

Defendant’s conviction and sentence are AFFIRMED.

      . The trial judge made the maximum sentence determination by combining the attempt and conspiracy statutes, R.S. 14:26 and 27. In relevant parts each provides that the maximum sentence to which a defendant is exposed is ½ of that for the prescribed offense. The trial judge decided that when combined, these statutes limited defendant’s exposure to ¼ of the 10 years he could have received for distribution of marijuana under R.S. 40:966.