text:
    STATE of Louisiana v. Daniel E. BECNEL, Jr.
    No. 84-KA-467.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Daniel E. Becnel, Jr., Barry J. Landry, William B. Birner, Becnel, Landry & Bec-nel, Reserve, for defendant-appellant.
    John Crum, G. Charles Lorio, Asst. Dist. Attys., Edgard, for plaintiff-appellee.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   KLIEBERT, Judge.

This matter is before us on the grant of an application for writs of review by defendant Daniel E. Becnel, Jr. from his conviction under La.R.S. 32:63(A) to-wit: Operating an auto in excess of the established speed limit. The defendant was issued a speeding ticket on December 2, 1983 while driving his automobile near East St. John High School in Reserve, La. The ticket filed into the record, bearing No. 0427, apprised the defendant that he was being charged with proceeding at a rate of speed of 73 mph in an area designated as a 55 mph zone. The ticket was signed by Deputy Waguespack as complainant, and witnessed by Deputy Meche. Defendant signed the ticket promising to appear in the Twenty-ninth Judicial District Court to answer the charges on March 12, 1984.

On March 12,1984 the defendant entered a plea of not guilty, at which time a trial date of May 15, 1984 was set. On May 15, 1984, trial was held before the Honorable C. William Bradley in the Twenty-ninth Judicial District Court. At trial, Mr. Becnel, Deputy Waguespack and Deputy Meche testified as to the events which occurred on December 2, 1983. At the conclusion of the trial the court found the defendant guilty and imposed a sentence of $35.00 plus court costs.

Here the defendant contends the trial court committed manifest error in concluding defendant was speeding, in violation of R.S. 32:63(A). The testimony presented on speeding at trial was conflicting and required a determination of credibility. The trial judge resolved the discrepancy on the issue of the defendant’s speed in favor of Deputy Waguespack. This was a factual determination resting partly on the credibility of the witnesses. The evidence supports the determination made by Judge Bradley that the defendant was guilty of speeding, in violation of La.R.S. 32:63(A).

Under Louisiana law, when there is conflicting testimony as to a factual matter, the question of credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless contrary to the evidence. State v. McSpaddin, 341 So.2d 868 (La. 1977); State v. Cobbs, 350 So.2d 168 (La. 1977). Since the trial court, looking at live witnesses, was in a better position to judge credibility than we who are looking at a written record, we cannot say the trial court erred.

Further, Deputy Waguespack’s tes- • timony alone is sufficient proof of the defendant’s speed and the fact that Deputy Meche offered no testimony as to the defendant’s speed is of no consequence. It is apparent that Deputy Meche was listed as a witness because he observed Deputy Waguespack pursuing the defendant’s vehicle.

From our review of the record, therefore, we cannot say the trial judge erred in making his factual determination.

However, in the course of reviewing the record, although not urged by the defendant, we found an error patent on the face of the record which falls within the scope of appellate review prescribed by La. C.Cr.P. Article 920(2), i.e., the ticket issued to the defendant, although signed by the officer who issued the ticket, was not sworn to or made under oath.

La.R.S. 32:398.4 provides for the use of a citation as a lawful complaint as follows:

§ 398.4. When copy of citation shall be
DEEMED A LAWFUL COMPLAINT
In the event the citation form provided for in this Part is sworn to and includes the necessary information required under the general laws of this state with respect to a complaint which charges commission of the offense alleged in said citation to have been committed, then such citation, when filed with a court of proper jurisdiction, shall be deemed to be a lawful complaint for the purpose of prosecution under this Part.

In State v. Kimble, 411 So.2d 430 (La. 1982) the supreme court held:

La.R.S. 13:1894.1 requires that “[a]ll ... charges ... shall be on affidavit.” See also La.Code Crim.P. art. 382. La. Code Crim.P. art. 385 provides:

An affidavit is a written accusation of crime made under oath and signed by the affiant. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof. (Emphasis added.)
In the instant case, defendant was never charged by affidavit. Under R.S. 32:398.4, a traffic ticket may be sufficient to institute prosecution if it is -“sworn to” and includes information necessary to charge a person with an offense. The Uniform Traffic Ticket and Complaint Affidavit issued to defendant is in the form of an affidavit. It is a written accusation of crime which adequately informs defendant of the crime for which he is charged. However, the accusations in the ticket, although signed by the arresting officers, were not made under oath or sworn to. Hence, the traffic ticket is not an affidavit and is thus insufficient for the purpose of instituting prosecution. The fact that defendant was arrested and ticketed is of no moment.

Furthermore, Article 382 of the Code of Criminal Procedure provides the methods of instituting criminal prosecution in the district court as follows:

Art. 382. Methods of instituting criminal prosecutions
A prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.
A prosecution for violation of an ordinance shall be instituted by affidavit. Other criminal prosecutions in a city court and prosecutions in a parish court shall be instituted by affidavit or information. Criminal prosecutions in a juvenile court or family court shall be instituted by affidavit, information, or indictment.

Accordingly, the conviction and sentence of the defendant is set aside and the case is remanded to the trial court for the proper institution of prosecution and a retrial.

SET ASIDE AND REMANDED.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    Charles S. WILLIAMS v. JOHNS-MANVILLE SALES CORPORATION, a/k/a Johns-Manville Products.
    No. 84-CA-486.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      Sheila C. Myers, New Orleans, for plaintiff-appellant.
    Joseph L. Lowenthal, Jr., Vivian L. Madison, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellee.
    Before BOUTALL, KLIEBERT and BOWES, JJ.
   KLIEBERT, Judge.

This is an appeal by plaintiff-workman, Charles S. Williams, from a summary judgment in favor of defendant, Johns-Manville Sales Corporation, dismissing his petition for workman’s compensation medical benefits. On appeal plaintiff Williams contends that the trial court erred in granting summary judgment in that defendant’s supporting affidavit did not resolve all issue of material fact and that the defendant was not entitled to a judgment as a matter of law. For the reasons hereafter stated, we set aside and remand the trial court judgment.

The instant litigation commenced when plaintiff filed a petition for workman’s compensation benefits. After limited discovery was conducted, the defendant filed a motion for summary judgment which said:

“NOW INTO COURT, through undersigned counsel, comes Johns-Manville Sales Corporation, defendant, who brings this Motion for Summary Judgment based on the fact that there will be no genuine issue as to material fact when after considering the Affidavit of Clint Williams, Employee Relations Manager, and the entire file herein, that Charles S. Williams has already received full workmen’s compensation benefits and that accordingly, he has no further rights in this matter.”

In support of the motion for summary judgment an affidavit of defendant’s employee relations manager was attached. The affidavit stated that the employee had received the maximum amount of weekly compensation benefits due under the applicable law. The only reference to medical benefit payments to the employee was the following:

“Affiant has also checked company records and has determined that medical expenses for the treatment of the pulmonary condition have been paid by the company, the last bill being submitted on 3-4-63, for a total of $76.00.”

The affidavit does not refer to the total amount of medical benefits paid by Johns-Manville. Under our law, even though full weekly workman’s compensation benefits have been paid, the employee is entitled to continued medical benefit payments provided his claim is timely filed and he has not exhausted the maximum amount payable under the applicable statute. Beverly v. State through Dept. of Health, 424 So.2d 446 (5th Cir.1982); Lester v. Southern Casualty Co., et al, 458 So.2d 654 (3rd Cir.1984); Brown v. Travelers Ins. Co., 247 La. 7,169 So.2d 540 (1964). The motion for summary judgment was predicated on the contention all benefits due under the compensation act had been paid. Since the uncontested affidavit of the employer did not state the amount of the medical benefits paid, there is an unresolved issue of material fact. Although the defendant’s argument that the claim for medical benefits has prescribed may be correct, there is no exception of prescription before us nor was prescription the basis for the motion for summary judgment. Under the provisions of La.C.C.P. Article 927 the court cannot supply the objection of prescription.

Accordingly, the judgment of the district court is set aside and the case remanded for further proceedings.

SET ASIDE AND REMANDED.


author: BOWES, Judge.

text:
    Raymond LILLY, Jr., et al. v. CONOCO, INC., et al.
    No. 84-CA-178.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Writ Denied March 15, 1985.
    Cameron C. Gamble, New Orleans, for plaintiff-appellant, Raymond Lilly, Jr.
    René A. Curry, Jr., New Orleans, for plaintiffs-appellants Leonard, McElwee & Lee.
    Russell M. Cornelius, Normann & Nor-mann, New Orleans, for defendants-appel-lees.
    Before BOUTALL, KLIEBERT and BOWES, JJ.
   BOWES, Judge.

Plaintiffs, the driver of an automobile and three guest passengers, sued for damages they sustained when the vehicle in which they were occupants collided with a tank truck owned by Conoco and driven by defendant, Junior L. Prater. At the conclusion of a six day trial, a twelve-person jury returned a verdict in favor of the defendants. From that verdict, the plaintiffs appeal. We affirm the judgment of the trial court.

This case arises out of an automobile-truck collision, which occurred at approximately 11:55 p.m., Friday, June 6, 1980, on U.S. Highway 61 (Airline Highway), just north of its intersection with Louisiana Highway 626. Immediately preceding the accident, a tank truck, carrying more than 8,000 gallons of gasoline, owned by Conoco, Inc. and being driven by Junior L. Prater, was north bound on U.S. 61. At this location, U.S. 61 is a four-lane roadway, divided by a grassy median about five feet in width. South bound, on the other side of the median, was an automobile being driven by Raymond Lilly, Jr. and further occupied by his three guest passengers: Calvin McElwee, Johnny Lee Bryant and Kelvin Leonard.

Plaintiffs claim that the accident occurred when the Conoco truck crossed the neutral ground and struck the Lilly vehicle. However, the defendant, Prater, and several independent eye witnesses, all maintain that the Lilly vehicle crossed the median and crashed into the truck, while it was in its proper lane, causing the truck to jackknife, roll down the highway, and burst into flames. The latter account of the accident is corroborated by the report of State Trooper Wallace Gettys, who investigated the accident.

The case was tried to a jury who found that the defendant, Junior Lee Prater, was not negligent in causing the accident and that damages were not due to the plaintiffs from the defendants.

Plaintiffs took this appeal assigning the following as errors:

ERROR NO. 1 — The Jury’s Verdict was based on incorrect and confusing charges given to it by the Court.
ERROR NO. 2 — The Trial Court erred in allowing into evidence a recorded statement of defendants’ witness, Daniel Murphy, whose testimony was offered by defendants via deposition at trial.
ERROR NO. 3 — Whether, based on the erroneous and confusing charges given by the Court, or otherwise, the verdict of the jury was manifestly erroneous and clearly contrary to the law and the evidence produced at trial.

Our exhaustive examination of the multi-volumed record reveals the following comments by the trial judge:

I’ve explained the charges that we are going to give. We are going to file into the record the requested charges which were denied. And you put that in the record and we’ll note the objections of both parties whatever which one is denied. So every body has got their records safe.

Although the trial court alludes to objections to the jury charges given, we find no such objection(s) in the record.

Article 1793 of the Louisiana Code of Civil Procedure states in pertinent part:

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

We, therefore, decline to consider any “error” alleged by the plaintiffs which relate to the jury charges. See Cruso v. Greater Lakeside Corporation, 425 So.2d 953 (La.App. 5th Cir.1983) and cases cited therein. To do otherwise would not only contravene the law and jurisprudence of this state but would also unfairly allow a party in a suit “two bites at the apple” — he simply would not object to any charge and, if he obtained a judgment he liked, he would remain silent; if not, he could complain of the alleged “error” on appeal and have a second chance.

As to assignment of error number two, we find it wholly lacking in merit. Daniel Murphy, an independent eye witness, could not be located at the time for trial. Therefore, his deposition, taken during discovery, was offered into evidence, as per La.C.C.P. art. 1450(3)(d). Additionally, a recorded statement, taken from Mr. Murphy after the accident, was played for the jury and a statement taken by plaintiff’s counsel was also read to the jury. In this assignment, plaintiffs complain only that the recorded statement was admitted. They raise a smoke-screen of objections to the recorded statement: no proper foundation was laid as to whether the statement was recorded in person or over the telephone; what was said to Mr. Murphy prior to the recording of the statement; did the tape run continuously throughout the interview; plaintiffs had no opportunity to object to any questions asked; and there are some opinions and speculation by Mr. Murphy on the tape.

We have examined the taped statement closely (it is transcribed in the record) and compared it to the two written statements given by the witness. We find nothing in the taped statement which would have resulted in the plaintiffs’ case being prejudiced. In fact, all three statements are generally consistent. We did note that the witness’ estimation of the Conoco truck’s speed varied from 55 m.p.h. to 70 m.p.h. We do not find this variance significant. It simply presents a credibility evaluation to the jury for it’s consideration under the judge’s charge. (Yol. 9, pg. 103). This assignment lacks merit.

Plaintiffs’, in their last assignment of error, argue that the jury verdict was manifestly erroneous and clearly wrong. We do not find this to be the case. There were five truly independent, disinterested, witnesses to the accident. The testimony of all of these witnesses is overwhelmingly in favor of the defendants.

It is evident from their verdict that the members of the jury accorded more credibility to the testimony of these independent witnesses than it did to the testimony of the plaintiffs, which is usually the case with any trier of fact. It is well settled in this state that jury determination of credibility shall not be disturbed on appeal unless manifestly erroneous. See Stevens v. Allstate Insurance Company, 428 So.2d 834 (La.App. 5th Cir.1983) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). This assignment also is without merit.

We find that the entire evidence establishes by a clear preponderance of the evidence that the defendant driver of the tank truck was completely without fault in this accident.

Accordingly, for the reasons assigned, we affirm the judgment of Jhe trial court. Appellant shall bear all costs in this appeal.

AFFIRMED.


text:
    STATE of Louisiana v. Michael COCHRAN.
    No. 84-KA-426.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    John M. Mamoulides, Dist. Atty., Dorothy Pendergast, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    John H. Craft, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   BOWES, Judge.

Defendant-appellant, Michael Cochran, along with two co-defendants, Napoleon and Pam Bueno, was charged by a Bill of Information with violating La.R.S. 40:967(F)(3), possession of more than 400 grams of cocaine. Trial of the matter was set for May 3, 1983. Prior to that date, defendant, Napoleon Bueno, entered a plea of guilty as charged. The morning of the trial, before jury selection began, the State, in accordance with La.C.Cr.P. art. 704, elected to try appellant, Michael Cochran, separately from defendant, Pam Bueno. Upon the court granting the prosecution’s motion for severance, the defense objected and the following colloquy ensued:

MR. SWANSON: [Defense Attorney]
I would move for a continuance at this time, Your Honor, because this is going to affect my defense in this matter.
THE COURT:
How will it affect your defense?
MR. SWANSON:
Well, I have to think about this whole matter. I really think that this is a last minute change of strategy by the District Attorney. I don’t know why this wasn’t done long ago if they wanted to try them separately.
THE COURT:
Absent any positive effect recited by this court on your defense the court is going to deny the motion to continue.
MR. SWANSON:
I note my objection for the record.

Immediately following the above exchange, a jury was picked and the defendant was tried and found guilty as charged. On May 13, 1983, appellant was sentenced to fifteen years at hard labor, without benefits, the statutory minimum sentence.

It is from that conviction the defendant now appeals, assigning the following as errors:

1.The court erred in denying defendant’s motion for a continuance following severance of defendant from his co-de- ’ fendant for trial on the morning of trial.
2. The court erred in sentencing defendant to an excessive sentence.
3. Also assigned as error are any and all errors patent upon the face of the record.

We note that defendant does not assign as error the court’s granting of the State’s last minute motion to sever over defendant’s objection.

Defendant’s first assignment of error, the denial of his oral motion to continue, is without any merit. La.C.Cr.P. article 712 states: “A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” (emphasis ours). The Louisiana Supreme Court, in State v. Benoit, 440 So.2d 129, 133 (La.1983), stated:

A denial of a motion for a continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Johnson, 343 So.2d 155 (La.1977).

The defense, when questioned by the trial judge as to the grounds for his objection to the court’s denial of the continuance requested, did not articulate any reason which would show prejudice to his case.

In his brief, appellant states that trial counsel’s “planned strategy, evidently, was to use the presence of the two co-defendants at trial to appellant’s advantage, pointing out Napoleon Bueno as the greater offender. From his opening argument, it is clear that appellant intended to put forth the theory that he was forced, under threat of death or great bodily harm, to take part in the drug transaction.”

We have examined the record with this hypothetical defense in mind and we find no evidence that Cochran was prejudiced in any way by the trial judge’s ruling — Napoleon Bueno, one of the former co-defendants, testified at trial, and Pam Bueno, the other former co-defendant, was not called by the defense.

Assignment of error number two was not briefed by appellant. “An issue not discussed in his brief must be considered abandoned. See Rule 2-12.4, Uniform Rules, Courts of Appeal .... ” State v. Williams, 449 So.2d 60 (La.App. 5th Cir.1984).

Our careful review of this matter reveals no errors patent upon the face of the record.

Accordingly, the conviction and sentence imposed by the district court upon Michael Cochran are affirmed.

AFFIRMED.


text:
    Mary Elizabeth NEELLEY, widow of Andrew J. Barnewold, Jr., individually and as natural tutrix of the minor children, Andrew J. Barnewold, III, and Steffan K. Barnewold v. NEW ORLEANS SHIPYARD, INC. and Employers Insurance of Wausau, a Mutual Company.
    No. 84-CA-457.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Dale C. Wilks, New Orleans, for plaintiff s-appellees.
    Louis M. Kiefer, Jr., Lynn L. Lightfoot, Metairie, for defendants-appellants.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   BOWES, Judge.

Defendants, New Orleans Shipyard, Inc. and Employers Insurance of Wausau, appeal a judgment of the trial court awarding the plaintiff, Mary Elizabeth Neeley, widow of Andrew J. Barnewold, Jr., benefits under the Workmen’s Compensation Act, R.S. 23:1231 et seq., and R.S. 23:1210 (widow and burial benefits). The defendants assert to this court that the plaintiffs failed to show a causal link between the heart accident, the fatal heart attack, of Mr. Barnewold and his employment.

The case was submitted to the trial court by way of depositions and stipulations. In the record are the depositions of plaintiff, Mrs. Barnewold, Louis Santiago, Mr. Barnewold’s co-worker, and Dr. Alvaro Hunt, a forensic pathologist who performed the autopsy on Mr. Barnewold, the decedent.

Andrew Barnewold was a 38-year old diesel mechanic, weighing approximately 300 pounds or more, employed by New Orleans Shipyard. On June 10, 1982, he worked in the engine room of the M/Y Ann Gladders. At approximately 6:30 p.m., he left work for the day and returned home, complaining to his wife that he had a stomach ache and was not hungry, refusing supper. At about 2:00 a.m., plaintiff was awakened by the sound of her husband choking. He was rushed to Ochsner Foundation Hospital where he was pronounced dead at 3:10 a.m.

Andrew Barnewold died as a result of an acute myocardial infarction of the left ventricular wall of the heart. He also suffered from coronary arteriosclerosis — there were areas of up to 80% narrowing of the right coronary artery and 50% narrowing of the left coronary artery. Mr. Barne-wold’s heart was markedly enlarged.

The autopsy further revealed that there was a recent death of part of the heart muscle resulting from occlusion of a small vessel. This occlusion occurred within 24-48 hours before Mr. Barnewold died. The pathologist could not be certain whether that particular occlusion was the fatal factor. There was also a large area of scarring which indicated that the decedent had had some previous death of myocardial fibers at some remote time, undeterminable by Dr. Hunt. Dr. Hunt suspected that Mr. Barnewold suffered from the disease of hypertension, as well as from coronary artery disease.

Dr. Hunt stated that given the decedent’s weight, size, and medical problems, he would have recommended that he not engage in strenuous physical activity. He indicated that it would be necessary to prevent significant elevations of heart rate in such a case, and that overheating and/or extremely heavy muscular work increases the heart rate. He went on to opine that given Mr. Barnewold’s acute arteriosclerosis, the physical activity referred to above (the work performed) and the heat factor could have precipitated the fatal myocardial infarction.

In this reasons for judgment, the trial judge found: that Mr. Barnewold, who had a history of heart disease, worked for ten hours in a cramped area doing heavy manual labor when the outside temperature was 93 degrees; that he was a prime candidate for a heart attack; that Dr. Hunt had stated given the condition of the heart, a physician would suggest plaintiff not do the kind of work he was doing and quoted Dr. Hunt’s opinion that temperature extremes and the like increases the work done by the heart and could precipitate the “final event.” The trial judge also found that Mr. Barnewold had died the same night of his strenuous activity in a very overheated, cramped, work place, and that the evidence sufficed to uphold plaintiff’s contention that this was a work-related accident.

Under the facts and circumstances of this case, we cannot say that the trial judge was manifestly erroneous.

In Delhommer v. Boh Brothers Construction Company, 435 So.2d 1036 (La.App. 5th Cir.1983), writs denied 438 So.2d 1106 (La.1976), this court stated that the correct legal principle applicable to heart cases, as derived from Guidry v. Sline Industrial Painters, Inc., infra, is as follows:

When the final heart failure comes as a result of possible employment involvement or could have or might be, it is sufficient to merit death benefits.

The Supreme Court in Schneider v. Strahan, 449 So.2d 1338 (La.1984) reiterated that whether or not there is a personal weakness or disease, the claimant must also establish medically that employment exertion contributed to that heart attack.

When the employee has a preexisting heart disease, a heart accident may be found to arise out of employment if the work exertion is of a degree greater than that generated in everyday nonemployment life. Guidry v. Sline Indus. Printers, Inc., 418 So.2d 626 (La.1982). Thus, if there is a personal causal contribution (in the form of a diseased heart) to the heart accident, the employment causal contribution must take the form of an exertion greater than that of non-employment life. IB A. Larson, Workmen’s Compensation § 38-83, 7-233 (1980). However, whether or not there is a personal weakness or disease, the claimant must also establish medically that employment exertion contributed causally to that heart attack. Larson, above.
Schneider, supra at p. 1341.

In Guidry v. Sline Industrial Painters, Inc. 418 So.2d 626 (La.1982), the Court emphasized the necessity of a causal relationship:

... A heart accident must be causally related in part, however slight, to the employment ...

In stating the plaintiffs burden of proof, the Court went on:

This burden of plaintiffs is to show by a preponderance of the evidence that the work effort, stress or strain in reasonable probability contributed in some degree to the heart accident.

Then the Court formulated a rule in such cases:

For the heart accident to arise out of or be connected with the employment, the exertion stress or strain, acting upon the pre-existing disease, must be of a degree greater than that generated in everyday non-employment life16 (e.g., as compared to the more or less sedentary life of the average non-worker).
In other words if the activities in which the worker with a pre-existing heart disease is engaged, whether for his job usual and customary or not, entail exertion, stress or strain greater than wo,uld be involved in everyday non-employment life and he experiences a heart accident, he has made a prima facie showing that the accident arose out of or was connected with, the employment.16

In such cases as these, stress or physical exertion is the triggering factor in determining whether the accident is work-related:

However, simply being at work on the job is not enough, since at the time of and for an appreciable period before the accident such worker (i.e., with a pre-ex-isting heart disease) may not have been engaged in his usual stressful activities, or his usual work may have been of a sedentary nature, or may have involved no physical stress or exertion beyond that generated in everyday non-employment life.17 In either of these latter eases, it is difficult to say that the accident arose out of the worker’s employment rather than that the accident arose out of or was prompted simply by the pre-existing heart disease.
Guidry, supra.

The decedent in this case was a diesel mechanic. On the day preceding the evening that he died, he worked an extended shift of about 10½ hours, at least 2 hours more than usual. On that day he was engaged in overhaul work on the diesel engine of the M/V Ann Gladders. Inserts in the engines were being changed — the decedent had to use a four-by-four piece of wood, six feet long, to pound down on the inserts. The job required climbing atop the engine to pound the inserts. It was extremely hot, at least 93 degrees Farenheit on the outside. Mr. Barnewold sweated profusely. There were two blowers in the hull of the ship, and a window fan, but no air conditioning. There was one break for lunch. The foregoing is the very epitomy of hard physical work — an extreme of exertion, stress and strain — certainly far greater than that involved in everyday non-employment life.

The defendant underscores the fact that the deceased did not complain of pain, nausea, or other signs of illness while at work. The only complaint he registered was upon returning home when he told his wife that he had a stomach ache, was not hungry, and refused supper. While complaints can be significant, we do not find support for the contention that a plaintiff must exhibit specific or particular symptoms. Although severe chest pains are a strong indicator of a heart attack, Dr. Hunt stated that a small percentage of patients who suffer attacks never have any pain. We find that the apparent absence of pain or other “classic” symptoms is not dispositive of the question of when or where Mr. Barnewold suffered the final attack. There was indisputedly an occlusion some 24-48 hours before he died, of which no complaint of pain is evident from the record.

Similarly, the finding of partial myocardial muscle death at some more remote time apparently also occurred without complaint of pain from the decedent. While these symptoms, when present, obviously are excellent manifestations of coronary occlusions, the lack of such complaints do not prove that such an event is not taking or has not taken place.

We are of the firm opinion that the record supports the trial judge’s finding that plaintiff established medically that employment exertion contributed causally to Andrew Barnewold’s fatal heart attack.

Additionally, we remand this case to the trial court for consideration of the right of plaintiff to penalties and attorney’s fees under La.R.S. 23-1201.2, which plaintiff prayed for but which the trial judge failed to rule upon.

Accordingly, the judgment of the trial court is affirmed and the case is remanded for further consideration in keeping with this opinion. Costs of this appeal are taxed to defendants-appellants.

AFFIRMED AND REMANDED.


author: CURRAULT, Judge.

text:
    STATE of Louisiana In the INTEREST OF Darren TATOM.
    No. 84-CA-477.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      John M. Mamoulides, Dist. Atty., Andrea Price, Asst. Dist. Atty., Twenty-Fourth Judicial Dist., Gretna, for plaintiff-appellee.
    Ann M. Keller, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before CHEHARDY, CURRAULT, and DUFRESNE, JJ.
   CURRAULT, Judge.

On February 16, 1983, the District Attorney’s office for the Parish of Jefferson petitioned the Juvenile Court to adjudicate the minor, Darren Tatom, delinquent for having committed an aggravated assault in violation of LSA-R.S. 14:37. The adjudication hearing commenced on September 7, 1983; and, at the close of the victim’s testimony, the defense moved for a directed verdict of acquittal. The trial judge preter-mitted the issue, stating that the motion was procedurally premature prior to the completion of the state’s case. Following the testimony of two additional witnesses, the state concluded its case and the defense again moved for a directed verdict, alleging that the evidence presented by the state was insufficient to prove the offense charged. The trial judge denied the motion and the defense sought writs. This court denied writs on October 13, 1983, concluding relator would be adequately protected on appeal.

The adjudication recommenced, was eventually submitted, and the trial judge found the juvenile delinquent based on the offense charged in the petition. At the disposition hearing, the juvenile was ordered to be committed to the Department of Corrections for a period of six months. The execution of that sentence was suspended pending the outcome of this appeal.

Counsel for the minor filed this appeal, asserting one assignment of error:

The Honorable Jack A. Grant erred in denying the defendant’s motion for acquittal because the state failed to produce any evidence that the alleged victim of the alleged aggravated assault had been placed in reasonable apprehension of having a battery committed on his person by the defendant.

During the latter part of November, 1982, the daughter of Jerry Freeman ran away from home. Mr. Freeman began canvassing the neighborhood in search of her whereabouts. On the evening of November 25, he saw the girl standing with three young men outside of a small townhouse complex in Kenner. Upon seeing him, all the youths, including his daughter, scattered. He initiated a pursuit and managed to catch Darren Tatom as Tatom came around the corner of the building. Freeman grabbed the juvenile by the throat, pushed him up against a parked car, and “tried to get out of him where his daughter was.” A struggle between the two ensued as the juvenile attempted to secure his release. Tatom’s father came upon the scene and questioned Freeman as to what he was doing to his son. Freeman responded that he was looking for his daughter and the younger Tatom had run from him. The incident ended as Mr. Tatom returned to his residence accompanied by his son.

On the following day, Mr. and Mrs. Freeman knocked at the door of the Tatom residence after being informed that their daughter was, in fact, staying there. Darren Tatom answered the door, and in response to the Freemans’ inquiry regarding the presence of their daughter in the house, replied that he had left her at a store known as the “Breadbasket.” Mr. Freeman indicated that he didn’t believe Tatom and threatened to call the police. Tatom shut the front door and ran back upstairs to where several other juveniles, including Freeman’s daughter, were waiting. Freeman got in his car and left the immediate vicinity, apparently to call the police. He returned shortly and standing outside the fence began watching the back of the townhouse while his wife maintained a surveillance on the front.

From a second floor window, Tatom pointed a rifle at Freeman and threatened to “blow [his] f... .ing brains out” if he did not leave the area. Freeman responded that “he [Tatom] didn’t have the guts to shoot me.” At this time the police units were heard in the area and the juveniles, except for the victim’s daughter, left the residence. Tatom was subsequently placed in custody when he returned to the townhouse pursuant to a request by Patrolman Frederick Kirby, relayed to Tatom through another juvenile.

In an adjudication proceeding, the State must prove beyond a reasonable doubt that the minor committed a delinquent act as alleged in the petition and that the burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof standard required in an adult proceeding. LSA-C.J.P. art. 73, State of Louisiana in the interest of Pigott, 413 So.2d 659 (La.App. 1st Cir.1982). That standard, as articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. This standard was adopted and made applicable to juvenile proceedings by the court in Pigott, supra. Thus, when reviewing juvenile proceedings, this court is obligated to ascertain whether the State has presented sufficient evidence to prove beyond a reasonable doubt an essential element of the crime charged. Pigott, supra.

The underlying offense, LSA-R.S. 14:36 reads:

“Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

The elements of assault are:

(1) the intent-to-scare mental element (general intent);

(2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm; and

(3) the resulting apprehension on the part of the victim.

At the trial, elements 1 and 2 were proven. However, element 3 was not. In fact, the victim explicitly testified he was never afraid throughout the entire confrontation and further that when defendant pointed the gun at him he challenged defendant to shoot him because he did not believe defendant had the guts to do it. Neither the State nor the record provides any circumstantial evidence that the victim exhibited any behavior indicative of apprehension. It is quite apparent from the record that the State did not satisfy its burden of proof by sufficiently proving all essential elements of the crime charged.

For the above stated reasons, the adjudication of Darren Tatom as a delinquent based on the commission of a delinquent act alleged in the petition must be reversed and a judgment of acquittal entered.

REVERSED.


text:
    Patricia Portier, Wife of Stephen Howard GROS v. Stephen Howard GROS.
    No. 84-CA-222.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Writ Denied Feb. 15, 1985.

      Constant G. Marquer, Jr., New Orleans, for defendant-appellant.
    Ross P. La Dart, Gretna, for plaintiff-ap-pellee.
    Before CURRAULT, GAUDIN and DU-FRESNE, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “L”, Parish of Jefferson, wherein the Honorable Lionel R. Collins denied the father’s rule to reduce child support payments. We affirm.

Stephen Howard Gros, by prior judgment, was ordered to pay child support in the amount of Five Hundred Dollars ($500) per month. This support order was based upon Mr. Gros’s income of Four Thousand, Eighty-Seven Dollars ($4,087) (Net income; $3,267) per month.

On May 23,1983, Mr. Gros filed a motion to reduce his child support obligation to Two Hundred Fifty Dollars ($250) per month. This motion was based upon Gros’s present gross income of Seven Hundred Forty-One Dollars and Eighty Cents ($741.80) (Net income; $582.76) per month. A hearing on this motion was held June 17, 1983 with the motion denied from the bench.

Mr. Gros has appealed alleging abuse of discretion on the part of the trial judge in that there was a significant change of circumstances (mover’s ability to pay), and that parents have a mutual obligation of the support of their children.

Appellant bases his appeal upon his reduced income, asserting such income to be insufficient to meet his current child support obligation. At the time the support order complained of was decreed, appellant had a gross income in excess of Four Thousand Dollars ($4,000) per month. However, at the time his rule to reduce was brought, his gross monthly income was Seven Hundred Forty-One Dollars and Eighty Cents ($741.80). Appellant claims this reduction was brought about by hard economic times. Appellee, countering at trial and on appeal, alleges that appellant voluntarily quit his job and allowed his truck to be repossessed in an attempt to avoid paying his child support obligation.

Appellant had been employed by Packard Truck Lines as a driver with his own tractor-trailer making in excess of Four Thousand Dollars monthly gross. Appellant testified though that it was Packard who had discharged him.

Appellant also testified upon cross-examination that he was later able to secure employment with Brown Transportation where he earned One Thousand, One Hundred Dollars ($1,100) gross for five days of actual work (on one trucking run). He further testified that after making this run he decided his employment with Brown Transportation was not cost efficient so he “... shut it down, I quit the company.” Appellant’s truck then sat idle at a nearby shopping center for two months before finally being repossessed. Appellant remained unemployed for those two months until finally securing a job with his present employer, Nicholson and Loup, where he is employed as a stock clerk with a monthly gross income of Seven Hundred, Forty-One Dollars and Eighty Cents ($741.80).

In addressing the issue of voluntary dismissal of employment which results in a change of financial conditions affecting one’s ability to pay alimony and child support, it is well established that a paying spouse may not avoid such obligations by simply quitting work. McKenna v. Steen, 422 So.2d 615 (La.App.3d Cir.1982); Mosley v. Mosley, 348 So.2d 225 (La.App.3d Cir. 1977); Rakosky v. Rakosky, 275 So.2d 421 (La.App. 4th Cir.1973); Viser v. Viser, 179 So.2d 673 (La.App.2d Cir.1965).

If we were only concerned with appellant’s present income and his ability to pay his child support, we might be inclined to agree with appellant. However, when considering this matter in toto, we are not moved by appellant’s arguments.

It is quite apparent from the record that the appellant is of a contemptible nature. From just a cursory review of the record, we find ample evidence establishing appellant’s unwillingness to cooperate with the court in the support of his minor children, to wit:

(1) the trial court has found appellant to be in contempt of its order for failure to pay on at least three occasions; judgments dated October 12, 1982; April 12, 1983, and March 9, 1984;

(2) at the outset of the hearing sub judi-ce, the trial judge verbally reprimanded appellant for his willful and deliberate attempts to undermine the court’s authority by sending his support payments in the name of his children which was a direct contravention of previous court orders; and

(3) appellant testified he told his sister, with whom he lived, that if anyone came to serve papers on him to tell them he was no longer there.

The record in the case before us reveals that although appellant was able to secure employment which apparently paid well, he chose instead to quit. We do not believe appellant’s decision to quit work was made in good faith, but was instead a deliberate attempt on his part to voluntarily lower his economic status so that he would be able to reduce his child support payments.

Trial judges have wide discretion when setting alimony and child support payments and such awards will not be disturbed unless there is a clear showing of abuse of discretion. Danforth v. Dan-forth, 422 So.2d 544 (La.App. 5th Cir.1982). When considering the record in its entirety, the inescapable conclusion is that there was no abuse of discretion on the part of the trial judge in denying appellant’s rule to reduce.

Accordingly, for the above foregoing reasons, the judgment appealed is hereby affirmed at appellant’s cost.

AFFIRMED.


author: GRISBAUM, Judge.

text:
    Carol L. CLARK v. John HILL, City of Kenner, and American Druggists’ Insurance Company.
    No. 84-CA-172.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Writ Denied March 15, 1985.

      Clyde A. Ramirez, New Orleans, for plaintiff-appellant.
    McGlinchey, Stafford, Mintz, Cellini & Lang, William F. Bologna, New Orleans, for defendants-appellees.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

This action arises out of a car accident involving three vehicles. The plaintiff, Carol L. Clark, filed suit against the defendants, John Hill, Transit Company, Inc. of the City of Kenner and American Druggist Insurance Company, alleging John Hill negligently caused an automobile accident in which Ms. Clark was injured. Following the conclusion of the plaintiff’s case, the trial judge granted a directed verdict in favor of the defendants and dismissed the plaintiff’s lawsuit. From this judgment, the plaintiff devolutively appeals. We affirm.

We are called upon to decide two issues:

(1) whether the trial court erred in invoking the sudden emergency doctrine thereby relieving the defendant of liability; and

(2) whether the trial court erred in granting a directed verdict dismissing the plaintiff’s action.

John Hill’s testimony reflects the following: On December 15, 1980, the plaintiff, Carol Clark, while employed as an airport shuttle van driver, was driving a 1974 Ford van on the exit road at the New Orleans International Airport. Ms. Clark was traveling in the left lane of traffic, and to her right was a Louisiana Transit Company, Inc. bus driven by the defendant, John Hill. The two vehicles were stopped together at an intersection. Mr. Hill began to move forward, slightly sooner than did Ms. Clark. The bus was traveling at approximately 10 miles per hour; the van was traveling slightly faster and to Mr. Hill’s left. The vehicles proceeded down the ramp from the main terminal toward the airport exit at Airline Highway, and at the same time, a small red sports car was approaching the intersection from the long-term parking lot located to the right of the two vehicles. Mr. Hill observed the sports car some distance down the parking lot driveway proceeding slowly towards the main airport exit road, at which time he removed his foot from the accelerator of his bus and proceeded cautiously. He was traveling on the favored roadway, and as he was nearing the intersection of the airport exit road and the parking lot exit, he observed the driver of the sports ear stop. Suddenly, without warning, the car pulled into the bus’ path at a time when the bus was no more than a few seconds from the intersection. Upon realizing he would strike the small vehicle broadside at the driver’s door if he did not take evasive action, Mr. Hill quickly applied his brakes and turned his vehicle to the left. As a result, he slightly sideswiped the plaintiff’s van and avoided hitting the small car.

Neither the plaintiff’s deposition nor her trial testimony refute Mr. Hill’s version of the accident with the exception that the plaintiff testified at trial she did not see a red sports car.

The plaintiff contends the defendant failed to exercise reasonable care in that he did not come to a complete stop upon seeing the sports car approaching the stop sign. The trial court found, however, that the plaintiff wholly failed to prove John Hill was negligent. We agree with the trial court that the defendant exercised reasonable care in the operation of his vehicle. It would be unreasonable to expect the bus driver to come to a complete stop upon seeing the sports car approaching the stop sign, particularly when the small car was approaching the intersection at a slow rate of speed. Moreover, the defendant’s testimony was uncontroverted that he was driving cautiously and at a safe rate of speed of approximately 10 miles per hour.

The law governing sudden emergency is stated by our Louisiana Supreme Court in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972), which in pertinent part provides:

One who suddenly finds himself in the position of imminent peril, without sufficient time to consider and weigh all circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. 262 So.2d at 389.

In light of our finding that the defendant did not in any way contribute to the emergency which he confronted in this accident, the defendant cannot be said to have been negligent for swerving into the plaintiff’s lane.

The plaintiff stated at trial that she did not see the sports car which allegedly created the sudden emergency situation. Upon cross-examination, however, she admitted that the front of her van was positioned, at the time of the accident, even with the middle of the bus, and thus, it is possible she was unable to see the small car which was, according to the defendant, on the other side of the bus. We find the defendant’s testimony was believable, convincing, and consistent with all of the evidence presented, and the trial court’s determination that the car in fact did exist will not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, the trial court did not err in invoking the sudden emergency doctrine relieving the defendant of liability.

We turn now to the second issue. The record reflects that after the plaintiff had completed the presentation of her evidence, the defendant moved for a directed verdict, which the trial court granted. We note that a motion for a directed verdict is applicable only in a jury trial whereas an involuntary dismissal pursuant to article 1672(B) of our Code of Civil Procedure is applicable in a bench trial. However, the legal effect of either motion is the same; namely, if upon the presentation of" the facts and the law the plaintiff has shown no right to relief, his action is dismissed by the motion being granted. The trial judge was eminently correct in stating in his reasons for directed verdict dismissing the plaintiffs action that a motorist who is traveling on a favored street, as was the defendant, John Hill, may reasonably assume that a motorist on a less favored street, by virtue of a stop sign, will obey that stop sign by not only bringing her vehicle to a complete stop, but further that she will not proceed until safe to do so. Therefore, after reviewing the record, the facts and the law being considered, we find the plaintiff failed to prove the defendant was negligent and, thus she showed no right of relief. Accordingly, we find the trial judge did not err in dismissing the plaintiffs action.

For the reasons assigned, the judgment of the trial court is affirmed; all costs of this appeal are to be assessed against the appellant.

AFFIRMED.


text:
    STATE of Louisiana v. Lee SMITH.
    No. 84-KA-199.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      John H. Craft, Gretna, for appellant.
    John M. Mamoulides, Dist. Atty., Stephen J. Wimberly, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for appellee.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

The defendant, Lee C. Smith, was indicted by a grand jury for first-degree murder in violation of Louisiana Revised Statute 14:30. On May 3, 1983, he pled guilty to manslaughter, a violation of Louisiana Revised Statute 14:31, and at that time, a pre-sentence investigation was ordered. The trial court subsequently sentenced the defendant to 18 years at hard labor with credit for time served, and the defendant appeals the conviction and sentence. We affirm.

The defendant, Lee Smith, met his victim, Mr. Hardy, at a lounge in Pat City on November 19, 1982. Mr. Smith said the victim invited him to his apartment where they each had a beer. According to the defendant, Hardy began making sexual advances toward him and was “pushing very hard” in that regard. Mr. Smith said he had not known Mr. Hardy would do such a thing, and he (Smith) became unnerved. He testified that the advances progressed to the point where the victim pulled a knife; Mr. Smith was at that time standing between the victim and the door. The defendant said he took the knife away and killed the .man by cutting his throat, and that after the killing, he was scared and left the apartment in a hurry. He later returned to the apartment and disconnected a video recorder, by cutting a wire, and took the recorder along with some tapes from the apartment.

The defendant assigned as error the sentence, imposed by the trial court, which he claims is an excessive sentence.

Our jurisprudence provides several principles as an aid in exercising our standard of review for sentencing. First of all, it is necessary in reviewing a sentence to view the trial court record to ensure the trial court adequately complied with Louisiana Code of Criminal Procedure article 894.1 and accorded proper weight to all the relative sentencing factors. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Tompkins, 429 So.2d 1385, 1388 (La.1982). The articulation of these factors by the trial court facilitates our review and assures sentences imposed are not arbitrary or based on impermissible factors. State v. Douglas, 389 So.2d 1263, 1267 (La.1980) as cited in State v. Jack, 448 So.2d 725, 727 (La.App. 5th Cir.1984).

In viewing the trial court record, and in particular the colloquy at the sentencing hearing, we find adequate compliance with Louisiana Code of Criminal Procedure article 894.1. The record reflects the trial judge considered as mitigating factors the fact that the defendant had no juvenile record, no prior record of arrest, and no convictions. In addition, many letters were written by friends and relatives of the defendant and reviewed by the trial judge, along with interviews included in the pre-sentence investigative report. The trial judge further considered that the defendant had a job offer outstanding and living accommodations promised to him in the event he was released on probation. Moreover, the defendant and his attorney were given ample opportunity to present all mitigating circumstances.

Along with the mitigating circumstances, the trial judge considered several other guidelines under Louisiana Code of Criminal Procedure article 894.1 and found: (1) there was an undue risk of the defendant committing another crime; (2) the defendant needed a custodial environment; (3) a lesser sentence would deprecate the seriousness of the crime; (4) the defendant would not respond affirmatively to probationary treatment; (5) there would be no excessive hardship to the defendant’s family resulting from the sentence to be imposed; and (6) the defendant did not act in self-defense nor was he significantly provoked by the victim.

In finding the trial court complied with Louisiana Code of Criminal Procedure article 894.1, we must now decide whether the trial judge abused his sentencing discretion in imposing this particular sentence. The Louisiana Constitution permits the courts of this state to determine whether the sentence of a particular offender is excessive, even though within the statutorily prescribed range. Louisiana Constitution Article I, Section 20; State v. Telsee, 425 So.2d 1251, 1253 (La.1983); State v. Ratcliff, 416 So.2d 528, 533 (La.1982); State v. Sepulvado, 367 So.2d 762, 764 (La.1979). The trial court is given wide discretion in imposing a sentence within the statutory limits, and an appellate court should not set aside a sentence in the absence of manifest abuse of its discretion, particularly where the factual basis and individual considerations upon which the sentence is based appear in the record. State v. Prados, 404 So.2d 925 (La.1981); State v. Cox, 369 So.2d 118 (La.1979). Within the statutory range, the most onerous sentences are properly reserved for the most serious violations and worst kind of offenders. State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981).

The trial judge found the defendant had not acted in self-defense nor was he significantly provoked by the victim. As the trial judge stated at the sentencing hearing, the defendant on several occasions on the night of the murder could have escaped the victim without killing him. As a matter of fact, the defendant was standing behind the victim at the time he cut the victim’s throat. The trial judge noted at the sentencing hearing that the defendant’s actions subsequent to the alleged murder, including taking the victim’s video cassette recorder home with him and lying to police officers on at least one occasion, are inconsistent with the defendant’s assertion that he acted in self-defense.

Additionally, the trial judge found that while there had been some provocation by the victim, the provocation was not significant and certainly not substantial enough to induce the commission of a killing. As the trial court noted, the defendant killed his victim with a knife, which, unlike a gun, does not go off easily in a struggle between two people. The trial judge found, and we agree, that the defendant had contemplated the extreme harm which he perpetrated.

The appellate function is not to substitute our judgment for that of the trial judge but to determine whether the court abused its broad discretion in its sentence. State v. Murdock, 416 So.2d 103, 106 (La.1982). Because the defendant was not significantly provoked by the victim and because it was his intent to commit great bodily harm, the defendant’s crime is obviously among the most serious violations of Louisiana Revised Statute 14:31. Therefore, the 18-year sentence imposed by the trial court for a violation which carries a possible penalty of 21 years is not apparently excessive.

We have inspected the pleadings and proceedings in the record on appeal, and our inspection has failed to reveal any errors patent on the face of the record.

For the reasons assigned the conviction and sentence are affirmed.

AFFIRMED.

      . Louisiana Revised Statute 14:31 provides in pertinent part:
      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed ...


text:
    “BUGS” BURGER BUG KILLERS, INC. v. Richard G.M. KEISER.
    No. 84-CA-215.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Frilot, Mary Ann Coffey, Albert H. Hanemenn, Jr., New Orleans, for plaintiff-appellant.
    Thomas A. Kehoe, Metairie, for defendant-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

This is an appeal by a former employer against a former employee to enforce a nonsolicitation agreement. The trial court denied the preliminary injunction, and the plaintiff, employer, appeals. We affirm.

“Bugs” Burger Bug Killers, Inc. filed a petition for writ of injunction to enforce an employment agreement between itself and its former employee, Richard G.M. Keiser, to enjoin its former employee from soliciting, contracting, and providing pest control services to Burger’s customers. Keiser’s employment with Burger began on November 22, 1977 at which time he agreed to the following contract, which, in pertinent part, states:

The party of the first part [Keiser] agrees not to solicit or service directly or indirectly, or in any way molest or attempt to damage the relationship between the party of the second part [Burger] and any and all of its customers for a period of two years following termination of his or her employment.

Reiser had been hired by Burger to sell pest elimination services to restaurant and hotel industries. His responsibilities were to solicit potential customers and to followup on requests for information or services received in Burger’s national Florida offices. (Burger is a national pest elimination company licensed to do business in Louisiana. During Reiser’s employment, Burger had carried out an extensive national advertising campaign, and Reiser had responsibility for customer response in Louisiana.) Reiser left Burger’s employ on April 22, 1983 and began employment with Academy Pest Elimination Service Technical, Inc. on July 1, 1983. In an effort to solicit Burger’s customers, Reiser sent out mailings and made personal contacts.

One primary issue is presented:

whether the statutory prohibition of non-competition agreements (Louisiana Revised Statute 23:921) applies to nonsolicitation clauses.

Our statutory law in Louisiana Revised Statute 23:921 provides:

' No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years.

Our jurisprudence has found no distinction between noncompetitive and nonsolicitation agreements by holding that Louisiana Revised Statute 23:921 is applicable to a nonsolicitation clause. They have further stated that such a clause which prohibits former employees from soliciting their former employer’s customers are unenforceable unless the statutory proviso applies that the employer show expenditures of substantial sums in the training of the employee or in advertising the employee’s connection with his business. National Motor Club of Louisiana, Inc. v. Conque, 173 So.2d 238 (La.App.3d Cir.1965), certiorari denied, 247 La. 875, 175 So.2d 110; Napasco International, Inc. Western Division v. Maxson, 420 So.2d 1276 (La. App.3d Cir.1982); National Oil Service of Louisiana, Inc. v. Brown, 381 So.2d 1269 (La.App. 4th Cir.1980); ADR v. Graves, 374 So.2d 699 (La.App. 1st Cir.1979); Orkin Exterminating Company, Inc. v. Broussard, 346 So.2d 1274 (La.App.3d Cir.1977); Alexander & Alexander, Inc. Simpson, 370 So.2d 670 (La.App. 4th Cir.1979). We agree with this jurisprudence and its rationale as given in Alexander & Alexander, Inc. v. Simpson, 370 So.2d 671, supra, which states that:

An examination of the wording of the statute confirms this position by use of the word “any” before “competing business.” This phrasing convinces us that the prohibition was intended to be broad enough to include not only the operation of a similar business, but also components of the business operation, such as solicitation of customers. Solicitation of business is certainly a part of competition.

We now consider whether this employer showed expenses of substantial sums in the training of this employee or in advertising this employee’s connection with his business which would then make this nonsolicitation agreement enforceable. In this regard we are guided by our Louisiana Supreme Court in Orkin Exterminating Company v. Foti, 302 So.2d 593 (La.1974), which states, in pertinent part:

If an employer extensively advertises a particular employee as the man to go to for the employer’s type of services, it is not unfair to protect the employer’s investment in this particularized asset by authorizing a limited non-competition agreement to prevent the advertised employee from misusing it. If an employer spends a substantial sum affording special training to an employee, it may not be unfair to protect the employer by authorizing a limited non-competition agreement to prevent the employee from using this specialized training for the benefit of another in competition with his former employee.
However, as the Conque line of cases holds, normal expenses of administration and supervision — such as employee sales and training meetings, the time spent breaking in a new employee, training courses in the administrative needs of the employer itself — cannot be considered the sort of “training” expense intended to justify the heavily disfavored non-competition agreement. Almost any employer could so tie his employees to their present employment by exacting a non-competition agreement. As Conque noted, 173 So.2d 241: “What the legislators must have intended, it seems to us (since they did not repeal the basic prohibition against such contracts as void as against the public policy of the state), was to protect the investment of those employers who afford special training of a substantial nature to their employees, and to encourage them to do so.”

The trial judge in his oral reasons for judgment found:

There has not been one iota of evidence that’s been presented to this court, — not one — a single fact was brought to show that there was any expense paid by Mr. Burger for the train (sic) of Mr. Reiser.

Our review of the testimony reveals that during Reiser’s employment, although Burger had carried out an extensive national advertising campaign, there was no advertisement linking Reiser and the business, nor was there any testimony demonstrating substantial sums which afforded special training for Reiser. Therefore, we find no manifest error in the trial court’s factual findings. See, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the reasons assigned, the judgment of the trial court is affirmed; all costs of this appeal are to be assessed against the appellant.

AFFIRMED.


text:
    Andrew L. COLLIER v. PELLERIN MILNOR CORPORATION.
    No. 84-CA-454.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      McGlinchey, Stafford, Mintz, Cellini & Lang, Michael S. Guillory, New Orleans, for defendant-appellant.
    William R. Mustian, III, Metairie, for plaintiff-appellee.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a retaliatory discharge case involving an injured worker seeking recovery under our anti-discrimination statute, Louisiana Revised Statute 23:1361. From a judgment finding discriminatory discharge under Louisiana Revised Statute 23:1361 and awarding plaintiff recovery provided by the statute of one year’s earnings ($17,-062.83, together with interests and costs from date of judicial demand) and attorney fees ($2500), defendant takes this suspen-sive appeal. The plaintiff answered the appeal seeking an increase in attorney’s fees, along with an increase in the amount of earnings to include insurance premiums paid by the employer on behalf of the plaintiff in the amount of $1425.65, plus profit sharing bonuses of $820. We amend, and as amended, affirm.

Initially, we are called upon to determine whether the trial court erred in finding that the employee had been discriminatorily discharged.

Louisiana Revised Statute 23:1361, in pertinent part, states:

B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with a reasonable attorney’s fee.

Under our statutory scheme, we will determine whether there was a reasonable, factual basis for the trial court’s determination that the discharge of this employee was because the employee asserted a claim for his compensation benefits. The defendant (employer) presented the testimony of Mr. Gondolfi, Mr. Blake, and Mr. Hodgson who stated that the discharge of employees who sue the company is no longer company policy. Additionally, Mr. Gondolfi testified that the plaintiff (employee) was placed on a leave of absence because of his occupational injury and further that the plaintiff was terminated because his leave of absence had expired and an employee who does not then return to work after one year is terminated. He stated that the leave of absence occurred on July 8, 1981 and that the plaintiff was terminated on February 28, 1983.

The record indicates the trial judge, in his reasons for judgment, stated:

After hearing the evidence it is clear to the court that it was indeed the policy of Pellerin Milnor Corporation to fire any employee who filed a lawsuit against the company. It is equally evident to the Court that this was the basis upon which Andrew L. Collier was terminated from his employment with the company.
The Court is not convinced that the plaintiff was terminated because of the expiration of his leave, inasmuch as the plaintiff had not requested and was not granted a “leave of absence” as indicated in the company manual.
The Court therefore, finds that Andrew Collier, the plaintiff in this matter was terminated in violation of R.S. 23:1361 and is entitled to one year’s earnings in the amount of $17,067.83, and to an additional $2,500.00 for attorney’s fees.

We note in the 1978 employee handbook, which was used during the plaintiff’s employment, there was the provision that employees who filed suit against the company would be fired. Although the employer maintains that in November 1981, which was prior to the plaintiff’s termination, this provision was excluded from the revised handbook, we note the record indicates this revised handbook was not actually printed and used. Therefore, we view this unwritten new policy did not (in fact) amend the old discriminatory policy, especially without a showing that the plaintiff and other employees were aware of this new policy.

Regarding the contention that the plaintiff was placed on a one-year leave of absence and that the company terminated him only after it received a medical report indicating he was capable of returning to work, we find, as the trial court found, that the employee was never formally placed on a leave of absence but rather was only notified of that fact, along with a concurrent notification of termination. Significantly, the termination occurred one and one-half years after the employer claimed the employee was placed on a leave of absence, rather than the policy time limit of one year. Coincidentally, the decision to ultimately terminate the employee came just four months after the employee had filed his suit for worker’s compensation.

In view of the preceding record facts, we find the trial judge had a reasonable, factual basis for his finding; therefore, we cannot say he was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Finally, we are called upon to determine whether the trial court erred by not including insurance premiums paid by the employer on behalf of the plaintiff and profit-sharing bonuses as earnings. We note that counsel stipulated the insurance premiums paid on the plaintiff’s behalf in 1982 were $1677.24, and the profit-sharing bonus the plaintiff would have been entitled to in 1983 was $820. We also note, in plaintiffs brief, his concession that the appropriate figure for the insurance premiums should be $1425.65, instead of the $1677.24 figure since the employer only paid 85 percent of the stipulated figure.

Louisiana Revised Statute 23:1361(C) states:

a civil penalty which shall be the. equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of discharge, as the case may be, but not more than one year’s earnings, together with a reasonable fee.

Our jurisprudence in interpreting what constitutes “earnings” states in Richmond v. Weiss & Golding, Inc., 124 So.2d 601 (La. App. 3d Cir.1960) and Smith v. State of Louisiana, Department of Highways, 370 So.2d 1295 (La.App. 3d Cir.1979) that bonuses, as well as wages, are to be considered in computing earnings under the Workmen’s Compensation Statute.

In Richmond, the court cited 2 Larson, Workmen’s Compensation Law (1952), section 60.12, which states:

In computing actual earnings as the beginning point of wage basis calculations, there should be included not only wages and salary but anything of value received as consideration for the work, such as tips and bonuses.

The Richmond court also cited Malone, Louisiana Workmen’s Compensation (1951), section 329, page 446, which states:

Any money paid the employee which can be regarded as remuneration or reward for his services should be included in fixing his compensation, irrespective of whether or not the payment was in the form of wages.

Considering the stipulation entered into by counsel just prior to the start of the trial of this matter and our jurisprudential interpretation of the definition of “earnings,” we find the trial court erred in not including the profit-sharing bonus which would have been payable in the amount of $820 to Mr. Collier in 1983 as part of the earnings he would have been entitled to had he not been discharged. However, with regard to the claimed amount of insurance premiums, a reading of the record does not indicate what the paid insurance premiums related to; therefore, we cannot address the question of whether they constituted a form of remuneration or earnings.

The record finally reflects the district judge awarded the plaintiff $2500 for attorney’s fees. The plaintiff has answered the appeal and requested an increase in this award to the sum of an additional $1000 for further work on this appeal. Our jurisprudence is clear in stating that the amount of attorney’s fees is based on the attorney’s time, skill and effort and rests largely within the discretion of the district judge. From the record before use, we find the trial judge’s award for attorney’s fees was more than adequate. Additionally, the record before use does not give us a reasonable basis for increasing that award.

For the reasons assigned, the judgment of the trial court is amended by increasing its award of earnings to an additional amount of $820. In all other respects, the judgment of the trial court is affirmed; all costs of this appeal are to be assessed against the appellant.

AMENDED AND AFFIRMED.


author: DUFRESNE, Judge.

text:
    STATE of Louisiana v. Louberta ROBINSON.
    No. 84-KA-453.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      John M. Mamoulides, Dist. Atty., Dorothy Pendergast, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    John H. Craft, I.D.B., Gretna, for defendant-appellant.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The defendant, Louberta Robinson, was charged with public bribery, R.S. 14:118. She was arraigned and entered a plea of not guilty. The defendant waived her right to a trial by jury and trial was held on May 1, 1984. She was found guilty as charged and after a pre-sentence investigation, was sentenced to one year in Parish Prison. The sentence was suspended and she was placed on active probation for one year, special condition being that the defendant maintain her children, have no contact with the person she attempted to bribe and pay court costs and fees of $127.50 within 90 days. From this conviction and sentence she now appeals.

FACTS

The defendant’s husband was charged with the armed robbery of a Texaco Service Station. Myron Walker was an employee of the service station and was present when the alleged armed robbery took place. While the robber actually confronted the manager of the station, Walker noticed what was taking place and got a good look at the perpetrator.

Approximately two weeks before the trial on the armed robbery commenced, the defendant twice approached Walker and offered him $300.00 on the condition that he testify that her husband was not the perpetrator of the armed robbery. Walker, who did not know Robinson and had never seen her before, refused to accept her proposal.

On the morning of the trial of the armed robbery, Walker informed the Jefferson Parish Sheriff’s Office that he had seen the woman who had made the proposal in the hallway outside the courtroom. As there were several people outside the courtroom, Walker was asked to identify the woman who made the proposal to him. Robinson was then arrested on charges of public bribery.

On appeal, the defendant assigns as error any and all errors patent on the face of the record.

ASSIGNMENT OF ERROR

In an error patent review, the record is reviewed for any error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. See C.Cr.P. art. 920.

The record in the present case reveals that the defendant appeared at a sentencing hearing and before the hearing began, presented a motion for a new trial. The motion was denied and Robinson was sentenced. A review of the record and sentencing transcript does not indicate that Robinson waived sentencing delays as required by La.C.Cr.P. art. 873.

Art. 873 provides as follows:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Jurisprudence prior to 1980, had consistently held that failure to comply with the twenty-four hour delay was error which voided a sentence, requiring that the defendant be resentenced. See State v. Bell, 377 So.2d 275 (La.1979); State v. Hopkins, 351 So.2d 474 (La.1977). Later cases have moved away from such a strict application of the twenty-four hour delay requirement, holding that a defendant is entitled to resentencing only when there is a showing of prejudice as a result of failure to comply with the rule. See State v. White, 404 So.2d 1202 (La.1981).

In the present case, over a month passed between Robinson’s conviction and sentence. In light of the fact that a pre-sen-tence investigation report was ordered, there are no indications that the defendant’s sentence was hurriedly imposed without due consideration. Furthermore, Robinson does not argue or in any way show that she was actually prejudiced by the failure of the trial court to observe the waiting period.

As held in State v. Brogdon, 426 So.2d 158 (La.1983), unless the defendant shows actual prejudice, failure to observe the 24 hour delay is harmless error.

Further review of the record does not reveal any other error on the face of the record.

Although not assigned as error, we have reviewed the record for sufficiency of evidence as required by State v. Raymo, 419 So.2d 858 (La.1982).

Robinson was charged with violating R.S. 14:118, which provides in pertinent part:

Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(4) Witness, or person about to be called as a witness, upon a trial or other proceeding before any court, board, or officer authorized to hear evidence or to take testimony.

Therefore, to uphold Robinson’s conviction, this court must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the prosecution proved beyond a reasonable doubt that Robinson offered something of value to Walker with the specific intent to influence his testimony at the trial of Robinson’s husband.

Walker testified that the defendant offered him $300 in exchange for testimony that the perpetrator of the armed robbery was not her husband.

The defendant testified that she was married to the alleged armed robber and knew that he might be sent to jail for a very long time if convicted. She stated that she did not offer Walker $300 to change his testimony, but that he offered not to testify if she “went to bed” with him. Under cross-examination, she testified that if she thought giving Walker $300 would save her husband, she would have paid it.

The trial judge accepted Walker’s version of the events as correct. The defendant was the one who had reason to lie; she knew her husband faced a long prison term and stated she would do anything to help him.

Robinson’s conviction was based on a credibility choice by the trier of fact. On appeal, our function is not to reassess the credibility determination of the fact finder, but only to determine if the evidence offered was sufficient to support the conviction as required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Accordingly, we conclude that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of the offense of public bribery.

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

AFFIRMED.


text:
    Clarence P. FORET, Sr. v. Charles C. WILSON, Sheriff of St. Charles Parish, State of Louisiana.
    No. 84-CA-209.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Clarence P. Foret, Sr., in pro. per.
    Jack R. Crais, Hahnville, for defendant-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Clarence P. Foret, Sr., plaintiff-appellant, brought suit pro se in district court seeking to compel Charles Wilson, Sheriff of St. Charles Parish, defendant-appellee, to adjudicate to him a piece of property sold at auction, or in the alternative for damages. The legal theory of this suit was that plaintiffs bid of one “silver dollar” was the only bid made in “lawful money”, and therefore that the sheriff improperly sold the parcel to the next highest bidder for 1.4 million dollars. On motion of the sheriff, summary judgment in his favor was granted.

Foret now appeals. The single issue urged here is that Louisiana’s procedural device of summary judgment is unconstitutional in that it violates the right to a civil jury trial as guaranteed by the Seventh Amendment to the United States Constitution. This allegation is without merit. The Seventh Amendment is not applicable to state court proceedings, Minneapolis & St Louis R.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1915).

For the foregoing reasons, the judgment appealed from is affirmed, all costs of this appeal to be borne by appellant.

AFFIRMED.


author: KNOLL, Judge.

text:
    INTERDICTION OF Pinkard WHITE, Sr. Pinkard WHITE, Jr., Plaintiff-Appellant, v. Pinkard WHITE, Sr., Defendant-Appellee.
    No. 83-1082.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Lawrence N. Curtis, Lafayette, for plaintiff-appellant.
    Robert Broussard, Lafayette, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Pinkard White, Jr. brought an action for interdiction against his father, Pinkard White, Sr., alleging that because of his infirmities, he was incapable of taking care of his person and administering his estate; Pinkard Jr. also requested that he be appointed curator. The trial court granted Pinkard Sr.’s motion for a directed verdict and dismissed the suit declaring Pinkard Sr. legally and mentally competent in handling his personal and business affairs. Pinkard Jr. brings this appeal on the sole issue of whether the trial court erred in granting the motion for a directed verdict. We affirm, finding there was insufficient evidence for the interdiction of Pinkard Sr.

FACTS

The facts are undisputed. Pinkard Sr. is eighty-seven years of age and has been married three times, the third of which ended in divorce. He has three sons and four daughters, all of whom have bought land from their father. Pinkard Sr. has a sizable estate consisting mainly of land, investments in the money market, oil royalties, and rental income. He has no outstanding debts.

Pinkard Sr. had three heart attacks since August 1981, and has been hospitalized three times since January 1983. Pinkard Sr. lives with his daughter, Audrey, and assists with chores, including feeding the chickens and cutting the weeds. He shaves, bathes, dresses, and takes his medication, all without assistance.

In addition to managing his personal life, Pinkard Sr. takes care of all his business affairs. He pays his bills and signs his checks. In April 1983, he sold Audrey an undivided one-half interest in approximately eight acres of land for $20,000 plus 7% interest. She pays him in monthly installments.

Pinkard Sr. executed a general power of attorney in favor of Audrey in January 1983, but later revoked it. He has since executed another general power of attorney in Audrey’s favor but she has never exercised it.

Three family members testified that Pin-kard Sr. has been “slow about remembering things” since he had his first heart attack. Pinkard Jr. testified that: his father had problems remembering things and recognizing people; he would start a conversation and could not finish it; and he repeated things over and over. In addition, Pinkard Jr. said his father did not understand what he was signing when he granted Audrey the power of attorney.

Dr. Thomas G. Latour, a court-appointed psychiatrist, examined Pinkard Sr. and opined that he had no psychological disorder. Dr. Latour felt Pinkard Sr. was mentally and legally competent to conduct his own business affairs and manage his own life. Although Pinkard Sr. did not recognize Dr. Latour at the trial, Dr. Latour explained that this was not unusual for a man Pinkard’s age because a person’s recent memory is usually affected by the aging process. After observing Pinkard Sr. during the trial and listening to his testimony, Dr. Latour again opined that he felt Pinkard Sr. was capable of fulfilling his legal responsibilities and managing his own affairs. Dr. Latour further stated that if he compared Pinkard Sr. to a group of 100 people who were 86 years old, Pin-kard Sr. would probably be in the upper 10% in terms of mental functioning, memory, and thought processes.

The Louisiana Civil Code sets forth two causes which compel the interdiction of a person and the appointment of someone to manage his estate, which are as follows:

Article 389.

“No 'person above the age of majority, who is subject to an habitual state of imbecility, insanity or madness, shall be allowed to take care of his own person and administer his estate, ...”

Article 422.

“Not only lunatics and idiots are liable to be interdicted, but likewise all persons who, owing to any infirmity, are incapable of taking care of their persons and administering their estates. ”

In interpreting these articles, the Louisiana Supreme Court stated that as prerequisite to the rendition of a judgment of interdiction, it must be shown that the person to be interdicted is mentally incapable of administering his or her estate and unable to take care of his or her person. Matter of Fabre, 371 So.2d 1322 (La.1979); Interdiction of Scurto, 188 La. 459, 177 So. 573 (1937). Moreover, reviewing courts have required a third element — a showing that an actual necessity for the interdiction exists. Doll v. Doll, 156 So.2d 275 (La.App. 4th Cir.1963); In re Corbin, 187 La. 968, 175 So. 636 (1937); Landry v. Landry, 171 La. 280, 130 So. 866 (1930).

Our jurisprudence recognizes that mental infirmities vary greatly in nature and degree, thus, each interdiction must depend upon its own particular facts. Interdiction is a harsh remedy and should be pronounced only where the proof is clear and conclusive. In re Adams, 209 So.2d 363 (La.App. 4th Cir.1968). In an interdiction proceeding the plaintiff has the burden of establishing the incapacity of the defendant to care for himself and his property. In re Ohanna, 230 La. 384, 88 So.2d 665 (1956).

In a well reasoned and considered opinion, the trial court stated:

“After considering all the evidence in the case, the Court finds that Mr. Pin-kard White, Sr. is capable of caring for his own person, as well as administering his estate.
* * * * * *
The Court would like to say a few things about this case, and that is, first of all, the testimony was uncontradict-ed that Mr. White certainly takes care of his own person. He is able to dress himself, he’s able to eat, he’s able to handle his daily needs, even to the point of feeding his chickens.
The other point in the case is whether or not he can administer his estate or his affairs. Taking into consideration the age of Mr. White, eighty-six (86) years old, together with the fact that at the present time he has no debts, he does have money in the bank, he also is very concerned about payment of any future expenses that he might incur in connec tion with his heart condition, I think all demonstrates to the Court that Mr. White, even though he is old, even though at times he may be forgetful, he is not to the point where his freedom to do with himself and with his property should, in the Court’s opinion, be removed from him. The law is clear that when a petition to have a person be declared incapable is filed, the person or persons who filed the suit must carry the heavy burden of proving to the Court that the person is incapable of handling himself or his affairs. I do not feel in this case that the petitioners have done so.

After a careful review of the record, we find the trial court’s determination is well supported. Pinkard Jr. failed to carry his burden of proving his father unable to care for himself and mentally incapable of administering his estate. On the contrary, the record supports that Pinkard Sr. is able to care for his person and administer his estate. The record contains no evidence to the contrary. Accordingly, we find the trial judge properly granted the motion for a directed verdict.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Pin-kard White, Jr.

AFFIRMED.


author: LABORDE, Judge.

text:
    Stephen D. LOGAN, Plaintiff-Appellant, v. Louis W. ROCHESTER, et al., Defendants-Appellees.
    No. 84-12.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Jerald R. Harper, Cook, Yancey, King & Galloway, Shreveport, for plaintiff-appellant.
    Blanchard, Walker, Quinn & Roberts, L. David Cromwell, Shreveport, for defendants-appellees.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff-appellant, Stephen D. Logan, was injured within the course and scope of his obligation as a Louisiana National Guardsman, during the annual training exercises at Fort Polk. At that time, on June 10, 1981, he was riding in a military Jeep that was being driven by defendant-appel-lee, Louis W. Rochester. After the vehicle accelerated while overtaking and passing other vehicles in a convoy, the vehicle suddenly overturned, resulting in serious injuries to Logan, including a cracked vertebra, broken pelvis, broken sacrum, and other serious back and spinal injuries. Since the time of his injury, Logan has been required to undergo hospitalization and other treatment, and he has suffered extensive pain and loss of a normal range of activities. Logan filed suit against the driver of the Jeep, Louis W. Rochester, the State of Louisiana, and the manufacturer of the Jeep, alleging several causes of action which include tort, strict liability, products liability, and workers’ compensation. Subsequently, Louis W. Rochester and the State of Louisiana filed a motion for partial summary judgment, arguing that Logan has no remedy in tort against them, but rather that his remedy lies solely in worker’s compensation. The motion was sustained by the trial court and Logan appeals from this ruling. He argues that he has a remedy in tort against defendants-appellees. We affirm the judgment of the trial court.

ISSUE

The issue is whether the trial court was correct in sustaining defendants’ motion for a partial summary judgment, thereby denying the plaintiff a remedy against these defendants in tort.

DISCUSSION

Defendants-appellees argue that, under La.R.S. 23:1211 , Logan may only recover worker’s compensation benefits. Conversely, Logan argues that this statute is applicable only during “a state of emergency declared by the governor.”

In Chapman v. Belden Corp., 414 So.2d 1283 (La.App. 3d Cir.1982), rev’d in part on other grounds, 428 So.2d 396 (La.1983), the plaintiff suffered a heart attack at home some five hours after completing his national guard duties. He argued that, under R.S. 23:1211, he was entitled to workmen’s compensation benefits. Conversely, the State argued that workmen’s compensation was applicable only during “a state of emergency declared by the governor.” The trial court denied defendant’s motion for summary judgment, and subsequently awarded workmen’s compensation benefits to plaintiff. In affirming the trial court on this issue, this court stated:

“As we construe it, the act was intended to allocate the liability for workmen’s compensation benefits between the state and federal governments, depending upon in whose service the member was acting at the time of the injury, and to expand state coverage to those situations where a state of emergency has been declared by the governor. In reaching this result we rely particularly on the last section of sub-section (c) which provides that ‘Otherwise, the provisions of the workmen’s compensation law apply.’ Affording R.S. 23:1211 a liberal construction, as is proper with all remedial statutes, requires us to conclude that the trial court’s action in this respect was appropriate.”

414 So.2d at 1288.

This interpretation is in accord with the policy behind the workmen’s compensation law, which favors the adequate compensation of all injured employees regardless of fault over full compensation in tort damages to employees injured as a result of fault and no compensation for those injured without any assignable fault.

Under the holding in Chapman, any national guard member injured in the course and scope of his duty must be adequately compensated regardless of fault. See also Harrell v. The Military Department, State of Louisiana (Army National Guard), 457 So.2d 314 (La.App. 3d Cir. 1984).

It is noted that the statute which was supplanted by section 1211 provided benefits for injury or death of a guardsman arising out of his commonplace duties, and this coverage was not limited to any state of emergency. See Constant v. State, 272 So.2d 675, 676 & n. 4 (La.1973).

For the above reasons, the judgment of the trial court is affirmed. Costs are assigned to plaintiff-appellant, Stephen D. Logan.

AFFIRMED.

      . La.R.S. 23:1211 states:
      "A. Every member of the national guard who is accidentally injured, or his dependents if he is accidentally killed, while on active duty during a state of emergency declared by the governor and for the duration of such emergency as declared by the governor, shall be compensated by the state in accordance with the worker’s compensation law, including but not limited to such medical, surgical and hospital services and medicines and such disability and death benefits as are authorized by said worker’s compensation law.
      B.No compensation shall be paid by the state for injury or death occurring while in the service of the United States of America or while going to or returning from this service.
      C. No compensation shall be paid unless the injury or death arose out of and in the course of the service. Before any claim is certified for payment, proof that the applicant is entitled to payment shall be made in accordance with regulations prescribed by the adjutant general. The amount payable as compensation may be commuted to a lump sum settlement by agreement of the parties. In computing the weekly benefit hereunder, either the weekly wages from the member's principal civilian employment or his weekly military wages, whichever is larger, will be used. Otherwise, the provisions of the worker’s compensation law apply.
      D. Except as provided in Subsection C hereof, the provisions of this section and of no other law shall govern the compensation benefits payable to members of the national guard."