text:
    John McSWEENEY, et al. v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT OF LOUISIANA, et al.
    No. 83 CA 0193.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Orlando G. Bendana, New Orleans, for plaintiff and appellee.
    Grady C. Weeks, Houma, for defendant and appellant.
    Timothy G. Schafer, New Orleans, for defendant United Services Auto Ins.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

This is a “strict liability” case (La.Civ. Code art. 2317) involving the condition of Louisiana Highway 659 near Houma, on March 17, 1980. The Department of Transportation and Development (DOTD) concedes proof has been made of the defect and its custody of the “thing.” At issue is whether or not the defective condition of the highway, including its adjacent shoulder, was causative of the injuries sustained by four minor children when the car in which they were traveling left the highway, went onto the shoulder, and subsequently hit a utility pole. Our standard of review requires us to determine if the trial court was clearly wrong in resolving affirmatively this factual issue. The secondary issue in the case is the adequacy- of the amounts awarded for damages.

FACTS

The undisputed facts giving rise to this litigation are as follows. On March 17, 1980, at approximately 8:30 P.M., Karen McSweeney, the sixteen year old daughter of John McSweeney, was driving in a northerly direction on Louisiana Highway 659 near Houma, Louisiana. Karen’s sisters, Peggy and Maureen McSweeney, and her nephew, Scott O’Rourke, were passengers in the car. It was raining and Karen had on her lights and windshield wipers. At one point Highway 659 is a two-lane roadway accommodating only northbound traffic, and at a point north of Houma, it changes suddenly to accommodate both north and southbound traffic. At the time of the accident, the double yellow lines were off center, reducing the width of the northbound lane by approximately fourteen inches. Along the shoulder of the narrowed northbound lane in which Karen was driving were ruts or depressions, containing holes of approximately four and one-half inches and six inches in depth. This was immediately adjacent to the main roadway, creating an abrupt difference in elevation between the roadway and the shoulder, which constitutes the conceded defect. Whether or not Karen left the highway at the location of this defective condition (drop-off) is disputed.

After the car left the roadway and the shoulder, it traveled through a muddy, grassy area and finally hit the utility pole. Karen and all of the passengers were injured.

PROCEDURAL HISTORY

John McSweeney and Mary Ann O’Rourke (mother of Scott O’Rourke), individually, and on behalf of the minor children, brought suit against DOTD and United Services Auto Insurance (USAI). The plaintiffs claimed DOTD was solely liable under La.Civ.Code art. 2317 for the defective and unreasonably dangerous condition of Highway 659. Alternatively, USAI, the insurer of the McSweeney vehicle, was joined as a party defendant on behalf of Karen McSweeney, for medical pay coverage primarily; and, as a party defendant on behalf of Peggy McSweeney, Maureen McSweeney, and Scott O’Rourke, for liability coverage; in the event Karen McSwee-ney was found to be a negligent driver.

After a trial on the merits, the court held DOTD liable under article 2317. It concluded it was more likely than not the McSweeney vehicle left the roadway at the location of the six inch deep rut and the narrowing of the highway by the yellow lines. The court found the plaintiffs had satisfied the burden of proving the highway-shoulder defect caused the vehicle to go out of control, resulting in the injuries received by its occupants. Since the court found the defect to be the main cause of the accident and found no fault on the part of the driver, the plaintiffs’ demand against USAI and DOTD’s third party demand against John McSweeney were dismissed with prejudice.

The court rendered judgment in favor of plaintiffs and awarded John McSweeney $3,000 on behalf of Peggy McSweeney; $1,000 on behalf of Karen McSweeney; $30,000 on behalf of Maureen McSweeney; and $11,480.65 individually. Mary Ann O’Rourke received $35,000 on behalf of Scott O’Rourke, and $9,127.93 individually.

DOTD appealed, alleging the trial court erred in: (1) finding the defect in the shoulder of Highway 659 to be the cause in fact of the accident, (2) finding the defect in Highway 659 to be the legal cause of the accident, (3) according more probative value to the testimony of interested parties who were not eyewitnesses than to the testimony of disinterested eyewitnesses, (4) allowing an expert in traffic engineering to testify out of his tendered field and (5) failing to find the driver, Karen McSwee-ney, at fault in causing the accident.

John McSweeney, individually, and on behalf of Maureen McSweeney and Peggy McSweeney; and Mary Ann O’Rourke, individually, and on behalf of Scott O’Rourke; answered the appeal alleging the trial court was incorrect in not finding USAI liable jointly with DOTD, and was further incorrect in that the amount of damages awarded was inadequate.

LIABILITY

To establish liability under article 2317, a plaintiff has the burden of proving three facts. First, the property which caused the plaintiff’s damage was in the custody of the defendant. Second, the property which caused the plaintiff’s damage was defective. Third, the damages incurred by plaintiff were caused by the defective thing. Loescher v. Parr, 324 So.2d 441 (La.1975), rehearing denied (1976). DOTD, having conceded the first two requirements are proven in this case, leaves for our consideration the third requirement, i.e., causation. See, Pitre v. Aetna Life and Cas. Co., 434 So.2d 191 (La.App. 3d Cir.1983).

In considering appellant’s first argument that the defect in Highway 659 was not the cause in fact of the accident, it must first be determined whether or not the vehicle left the roadway at the location of the deep ruts.

Karen McSweeney testified the vehicle inadvertently left the highway where there were two deep ruts in the shoulder. DOTD contends, due to the fault of the driver, the vehicle skidded on the paved portion of the highway and left the road at a point past the ruts. The appellees contend the ruts caused the driver to lose control of the car and thus DOTD is liable for failing to maintain the highway shoulder in a safe condition. The trial court, relying upon the testimony and photographs of witnesses who visited the scene of the accident concluded the McSweeney vehicle left the roadway at the location of the six inch deep rut, causing the driver to lose control of the vehicle. Appellant argues the trial court erred in relying on the testimony of these witnesses because they were business'associates of John McSweeney. In support of their testimony that the vehicle left the roadway at the location of the rut, they maintained car tracks could be traced from the utility pole back to the six inch deep rut. Although the tracks did not show up in the photographs taken the day after the accident, the trial court found no reason to doubt the veracity of plaintiffs’ witnesses.

In considering the probative value arid credibility of plaintiffs’ witnesses the court noted their testimony was likely to be more reliable than the recollections of DOTD’s witnesses. DOTD’s witnesses were traveling in a van behind the McSweeney vehicle. The driver, Ricky Bader, gave inconsistent statements as to whether the McSweeney vehicle was on the shoulder or on the main highway when it went out of control. Elton Landry, the passenger in the van, testified he could not tell whether the McSwee-ney vehicle was completely or only partially on the paved portion of the highway when it suddenly veered off onto the shoulder. The investigating officer, Anthony Galli-ano, Jr., testified his investigation was not comprehensive because of his concern over a nearby fatal accident. He did not make any measurements to determine the point of departure.

Considering the above testimony and the great discretion vested in the trial court in determining the credibility of witnesses, we can not say the trial court erred in placing more probative value on the testimony of the plaintiffs’ witnesses than that of the defendants’ witnesses.

In resolving the fact question, the trial court also relied on the testimony of Dwayne T. Evans, an expert in traffic engineering. Mr. Evans testified there were chips on the roadway surface near the deep ruts which he believed resulted from vehicles going off the roadway at that point for a period of years. In Mr. Evans’ opinion, the existence of these chips, coupled with the narrowed northbound lane, evidenced the probability reasonably careful drivers had been leaving the highway at that point.

DOTD contends the trial court erred in giving more weight to Mr. Evans’ testimony than to the deposed testimony of Dr. Olin K. Dart, Jr., an expert in accident reconstruction. Dr. Dart testified the vehicle left the roadway after reaching the location of the ruts. He based his opinion primarily on his interpretation of photographs taken within a few days of the accident, a method not as reliable as personal observations. We can not say the trial court erred in affording more weight to Mr. Evans’ opinion than it did to Dr. Dart’s opinion. “[Wjhere there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon re-view_” Canter v. Koehring Company, 283 So.2d 716 at 723 (La.1973), rehearing denied 1973.

Furthermore, we find DOTD’s contention that Mr. Evans testified out of his tendered field (traffic engineering) to be without merit. The trial court is to be granted much discretion in determining a witness’s qualifications and competence to testify as an expert. As a reviewing court, we will not disturb the trial court’s ruling unless the error is clear and involves a misunderstanding of law. Hunnicutt v. Kent, 434 So.2d 91 (La.App. 5th Cir.1982).

The trial court was correct in concluding the vehicle left the highway at the location of the narrowed lane and deep rut. Furthermore, we find the defect in the highway shoulder to be the cause in fact of appellees’ injuries. Causation is a question of fact as to which the trial court’s determinations are entitled to great weight and cannot be disturbed absent manifest error. Smith v. State, Through Dept. of Transp., etc., 412 So.2d 685 (La.App. 2d Cir.1982), writ denied, 413 So.2d 907 (La.1982); Rivet v. State, through Dept. of Transp., 434 So.2d 436 (La.App. 3d Cir.1983).

We next consider whether or not the defective shoulder was the “legal or proximate cause” of the accident. It is well established that DOTD is charged with the duty of maintaining highway shoulders in a safe condition. Durrett v. State, 416 So.2d 562 (La.App. 1st Cir.1982), rehearing denied 1982. We find DOTD’s duty of maintaining the shoulder of state highways encompasses the risk that a driver who encounters a lane narrowed by off-center yellow lines will inadvertently leave the main roadway, drop off into a rut in the shoulder and lose control of the vehicle. In Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979), rehearing denied 1979, the Supreme Court held at page 1199:

“[Tjhe Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder.”

The risk encountered by the appellees, the loss of control of a vehicle after dropping off in a rut in the shoulder, is exactly the type of danger to be expected from such road conditions and is exactly the reason such conditions must be repaired. Durrett, supra; see also, LeBlanc v. State, 419 So.2d 853 (La.1982). Therefore, the defective shoulder was the “legal or proximate cause” of the accident. Plaintiffs have borne the burden of proving the defective thing in the custody of DOTD caused their damages.

DOTD attempts to escape strict liability by establishing the defenses of “fault of the victim” and “fault of a third person.” The first defense would bar Karen McSweeney from recovery and the second defense would bar her guest passengers from recovery. Alternatively, DOTD argues solidary liability should be imposed against it and USAI (Karen McSweeney’s insurer) as regards the guest passengers. This defensive thrust is based upon DOTD’s contention the true cause of the accident was Karen McSweeney’s failure to control her vehicle while on the travel portion of the roadway, or her failure to maintain control was at least a substantial cause of the accident. See, Hessifer v. Southern Equipment, Inc., 416 So.2d 368 (La.App. 1st Cir.1982), writ denied, 420 So.2d 982 (La.1982), for a theoretical analysis of fault concepts underlying DOTD’s position.

We find no merit in DOTD’s contention Karen McSweeney’s conduct caused the accident or contributed substantially to the accident. Miss McSweeney was driving within the speed limit and had on her windshield wipers and lights. Because of the off-center yellow line and narrowed northbound lane, she inadvertently steered into the rut and lost control of the vehicle. In Rue, supra, a motorist who inadvertently drove off the highway and lost control of her vehicle upon striking a deep rut in the shoulder was held not to be at fault.

The holding in Rue, supra, was narrowed in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), rehearing denied 1980. In Sinitiere, the court held if a motorist has knowledge of a shoulder defect his action in leaving the roadway is a breach of his duty to himself and to his passengers.

DOTD contends Karen had knowledge of the defective condition of the shoulder and therefore is barred from recovery. We again disagree. Karen testified Highway 659 was not her daily route home from school. She was somewhat familiar with the road but was unaware of the drop off until her tire fell into the six inch rut. No warning signs or signals were in the vicinity of the defective shoulder. In Cullivan v. State Farm Mut. Auto. Ins. Co., 428 So.2d 1231 (La.App. 3d Cir.1983), writs denied 433 So.2d 180, 181 (La.1983), a motorist, who had driven a road three times monthly and ridden on the road at least twenty times prior to the accident, was held not to have had actual or constructive knowledge of the defective shoulder.

We can not say the trial court was clearly wrong in finding Karen McSweeney free of fault in causing the accident. Since DOTD has not proven a defense to article 2317, strict liability applies affording recovery for plaintiffs’ damages. Public bodies, such as DOTD, may be held liable under article 2317 for damages caused by defective things in their custody. Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980); Scott v. State, Dept. of Transp., etc., 392 So.2d 482 (La.App. 1st Cir.1980), writ refused, 396 So.2d 921 (La.1981).

Considering the above evidence, we find no error as to the trial court’s conclusions on liability.

QUANTUM

The initial inquiry in reviewing an award of damages is directed at determining whether or not the trial court’s award for the particular injuries is a clear abuse of the trier of facts “much discretion.” Reck v. Stevens, 373 So.2d 498 (La.1979). We are here concerned with the injuries to Maureen McSweeney and Scott O’Rourke. The appeal was not answered on behalf of Karen McSweeney and, although is was answered on behalf of Peggy McSweeney, the objection to award adequacy was not briefed for her. See Rule 2-12.4, Uniform Rules — Courts of Appeal. Because we find the trial court’s reasons for judgment to be articulate and complete, we adopt that portion which deals with the quantum issue, as a part of our opinion herein.

The trial court stated as follows:

“Although the lasting effect of the injuries received by these children was somewhat disputed, the medical testimony was basically unchallenged. The opinions of the several doctors who testified at trial and by depositions, along with this Court’s observations of the children, can be summarized as follows: * * * ¥ * *
“MAUREEN ‘BEANEE’ McSWEE-NEY: — She arrived at Terrebonne General Hospital unconscious and convulsing. Because of the deep and jagged laceration of the forehead, with some scalp exposed, a serious head injury was suspected. She was transferred immediately to Ochsner Foundation Hospital in New Orleans, where she was hospitalized for 11 days. She has a ‘Y’ shaped scar on the forehead about one inch from the hairline which is about one-half inch in diameter. There are three scars ranging in size from one-half inch to two inches from the top of the nose to the eyebrows.
“Maureen also suffered a broken femur which required the surgical insertion of a hip plate. Forty-three days after the accident she was ambulatory on crutches, 50% weight bearing. A month after that she was put on single crutch ambulation, 90% weight bearing. Since the accident she has complained about some pain in the knee, but this is not an extremely serious problem.
“Fourteen months after the accident, the hip plate was surgically removed. The surgeon estimated it would take from six months to one year for the screw holes in the bone to refill. This second surgery was followed by some limping and discomfort. She has an eight inch surgical incision scar running from the hip toward the knee.
“At the same time as the removal of the hip plate, a dermabrasion was performed to improve the appearance of the facial scars. Except for some minor improvement with another procedure under local anesthetic, the facial scarring present at trial is expected to remain.
“An award of $30,000.00 will compensate Maureen for her injuries.
“SCOTT O’ROURKE: — Scott was the most severely injured of the four children. An intensive left front temporal fracture and a cervical concussion placed him in critical condition. He was transferred to Ochsner’s, where he was kept in intensive care for two days.
“Scott’s mother and grandmother both testified that the bruising and swelling of his entire face, along with the severe lacerations, made it impossible for him to open his eyes for some time. Although damage to his sight was eventually ruled out by the Ochsner staff, he was unable to open his eyes sufficiently to observe much around him or to watch television. During his convalescence at Ochsner’s, his pain was evidenced by marked irritability; he was often incoherent.
“Although there is no presently apparent damage to brain tissue, another head injury was noted by the treating physician at Ochsner’s: pheumoencephalus, ‘air in the brain.’ This condition can lead to infection, specifically meningitis. (See deposition of Dr. Richard Coulon, page 17.)
“Approximately one month following the accident, Scott was again hospitalized for eight days with spinal meningitis. The treating physician, Dr. Robert Hay-del, testified that the meningitis was consistent with a spinal fluid leak stemming from the head injury received in the accident. Although Scott was critically ill at the onset of the meningitis, there has been no recurrence. The chances of increased susceptibility to epilepsy, although slight, have not been ruled out.
“The numerous lacerations to Scott’s face left observable scarring. At the time of trial Scott had a one inch T-shaped scar on the side of his face near the nose. There was a one-half inch scar and a one-and-one half inch scar near the hairline. Six small scars near his right upper lip were brownish in color. A small scar in the right eyebrow created a cowlick effect, disrupting the natural line of the eyebrow.
“During June, 1982, Scott underwent a dermabrasion to improve the scars. This Court, with agreement of counsel, received further photographic evidence to view the results of this subsequent treatment.
“An award of $85,000.00 will compensate Scott for his injuries.”

While we consider the awards for Maureen and Scott to be less than we would have granted, we find the trial court did not abuse its discretion in determining the quantum of damages. The awards are sanctioned by the guidelines of Reck v. Stevens, supra.

For the foregoing reasons, the judgment of the trial court in favor of the appellees is hereby affirmed in all respects. Costs in the amount of $4,812.95 are to be paid by appellant.

AFFIRMED.

      . Two suits were actually filed. Suit number 63,971 was filed by John McSweeney, individually, and on behalf of his minor children, Peggy and Maureen McSweeney and by Ann O’Rourke, individually, and on behalf of her minor son, Scott O’Rourke. Suit number 63,972 was filed by John McSweeney, individually, and on behalf of his minor daughter, Karen McSweeney, the driver of the car. Because both suits arose out of the same accident and involved substantially the same issues of law and fact, the cases were consolidated for trial.

      . Art. 2317 reads in pertinent part as follows: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

      . DOTD filed a “third party demand” against John McSweeney. Because of our ultimate decision we need not discuss this claim.

      . For purposes of clarity, we will hereafter refer to DOTD as appellant and to the plaintiffs as appellees.

      . There is confusion in the jurisprudence as to the proper analysis for causation under articles 2317 and 2315. We see no difference in the causation analysis under either article. The only difference in the analysis of the two theo-ríes is the claimant is relieved of proving the custodian’s knowledge of the defect under article 2317. See, Hessifer v. Southern Equipment, Inc., 416 So.2d 368 (La.App. 1st Cir.1982), writ denied, 420 So.2d 982 (La.1982).

      . Karen McSweeney testified it was her rear tire that hit the rut or hole. She could not explain this seemingly incongruous fact. If indeed it was that tire and not her front tire, the possibility this could happen was explained adequately by plaintiffs’ expert witness.


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rodney J. LEDAY.
    No. 83 KA 0196.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Bernard E. Boudreaux, Jr., Dist. Atty., James R. McClelland, Asst. Dist. Atty., Franklin, for appellee.
    Gary L. Newport, Berwick, for appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Rodney Leday, a/k/a Robert J. Leday, was charged by bill of information with armed robbery in violation of La.R.S. 14:64. He pled not guilty, was tried by a jury and was found guilty as charged. The trial court sentenced defendant to be committed tó the Department of Corrections for thirty years, without benefit of parole, probation or suspension of sentence. In the sole assignment of error briefed, defendant urges that the sentence is excessive and that the trial court failed to enumerate its reasons for sentencing as required by La.C.Cr.P. art. 894.1.

In the early morning hours of July 7, 1982, John W. Broadnax, an employee of Gas World in Patterson, Louisiana, was closing up his gasoline station. After he had locked the doors and activated the alarm system, Broadnax turned to go to his car when he was hit over the head with an unknown weapon and robbed of a duffle bag carrying over three hundred dollars of the business’ money. Although the blow stunned him and knocked him to his knees, he did see a tall, slender, bushy-headed black man with a yellowish-looking shirt run to a car parked nearby, start the car and drive off. Broadnax returned to the store and set off the alarm system. Because the alarm was connected to the police station, the police responded quickly and an officer on routine patrol was notified of the robbery.

Almost immediately thereafter, the police officer spotted a car stopped near the shopping center where Gas World is located. Although the car had only one individual in it, soon thereafter another man appeared and jumped in. The car then took off. The officer testified that the two men kept looking back and watching to see if they were being followed. The officer followed the car for awhile and finally pulled it over. He advised them of the robbery, told them he was suspicious of their activity, and asked them if they would go back to Gas World with him to see if the attendant could identify them. They complied with the request. Although the employee had not seen the assailant’s face, he was able to make a positive identification of defendant from the shirt he was wearing. After the two men were arrested, a warrant was obtained to search the car and the duffle bag was found therein. As noted above, the defendant was tried and convicted of armed robbery. Later, the defendant was sentenced to 30 years in prison without benefit of parole, probation or suspension of sentence. The sole issue on appeal is the excessiveness, vel non, of defendant’s sentence.

Excessive sentences are prohibited under the provisions of Article 1, section 20, of the Louisiana Constitution of 1974. An excessive sentence has been defined as one which is grossly out of proportion to the severity of the crime, or if it is nothing more than purposeless and needless imposition of pain and suffering. State v. Parkerson, 415 So.2d 187 (La.1982).

In determining whether a penalty is grossly disproportionate to the crime committed, the reviewing court should consider the punishment and the crime in light of the harm caused to society and determine whether the penalty is so disproportionate as to shock the sense of justice. State v. Reed, 409 So.2d 266 (La.1982).

The trial court has wide discretion in the imposition of a sentence within statutory limits, and a sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion. However, a sentence may be excessive and still be within the statutory limits. State v. Willis, 420 So.2d 962 (La.1982).

Defendant also contends that the trial court failed to comply with part C. of La.C.Cr.P. art. 894.1 which mandates that the trial court state for the record the considerations taken into account and the factual basis therefor in imposing sentence. It is clear that the trial court need not articulate every aggravating and mitigating circumstance; but, the record must reflect that he adequately considered the guidelines enunciated in La.C.Cr.P. art. 894.1. State v. Grey, 408 So.2d 1239 (La.1982); State v. Mathews, 428 So.2d 988 (La.App. 1st Cir.1983).

From our review of the sentencing hearing, we find that the trial court adequately complied with art. 894.1. He stated that he had considered the sentencing guidelines in the article and found that: (1) there is an undue risk that during any period of suspended sentence or probation the defendant would commit another crime; (2) the defendant is in need of correctional treatment or a custodial environment; and (3) a lesser sentence would deprecate the seriousness of the crime committed.

Under the penalty provisions of La.R.S. 14:64, the defendant could have received as much as 99 years. Thus, appellant’s sentence of 30 years is less than one-third of the maximum statutory penalty for armed robbery. We also note that the gas station attendant was struck a deliberate, planned and vicious blow to the back of his head, requiring approximately 20 stitches. This blow to a very fragile and crucial area of the body exhibited a total unconcern on the part of the defendant for the life of Broad-nax. Defendant’s conduct demonstrated an attempt to do serious harm to the victim and there is nothing in the record to suggest defendant would not engage in this type of activity again should he be given a suspended sentence. Out of the eleven factors in La.C.Cr.P. art. 894.1 B. which might weigh in defendant’s favor, appellant only qualifies for one: the record does not reflect that defendant has had any prior criminal activity. Although we realize this one factor may be enough to suggest a less lengthy or suspended sentence in some cases, it does not raise in our minds such a suggestion given the facts in the record in this particular case. The character of the crime in this case demonstrates that the defendant may be on the road to a lifetime of habitual criminal activity. Correctional treatment may hopefully show defendant the need to improve. Finally, and less ideally, we think the total unconcern for the life of Broadnax completely supports the sentence in this case and we therefore reject this assignment of error.

Having found no merit in the single assignment of error briefed, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . In his brief, the defendant’s attorney noted that the arguments contained in assignments of error numbers 1-4 were meritless and he would not pursue them. Because defendant has abandoned these assignments by not briefing them, this court will not give them consideration on appeal. Uniform Rules Courts of Appeal 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983).


author: COVINGTON, Judge.

text:
    Edna Zeringue EGLE, et al. v. Roland KIDD, Jr., et al.
    No. 83 CA 0202.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Victor J. Versaggi, Patterson, for plaintiffs-appellees.
    Edward M. Leonard, Jr., Morgan City, for D.C. Walsh Co., appellee.
    Edward J. Milligan, Jr., Lafayette, for Roland Kidd, Jr., et al., defendants-appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal by Roland Kidd, Jr., Robert C. McHugh, Clifford Dressel and D.C. Walsh Company, Inc., plaintiffs, from a judgment in favor of Nell Egle Brown and Marilyn Egle Sonnier, defendants, dismissing plaintiffs’ petitory action.

The trial court, assigning written reasons, granted defendants’ motion for directed verdict, and dismissed plaintiffs’ suit.

On appeal, plaintiffs argue that the trial court erred in granting a directed verdict, and in failing to find that plaintiffs had proved their title to the disputed property. We affirm the decision of the trial court.

This appeal arises out of a possessory action that was converted into a petitory action by the Kidd group, and involves a 100-acre tract of land in Assumption Parish, described as:

That certain tract or parcel of land containing One Hundred (100) acres, more or less, and more fully described as being the south one-half (S/2) of the southwest one-quarter (SW/4) of Section Thirty-six (36) and a fractional portion of Section Thirty-five (35), Township 13 South, Range 12 East, East of Belle River, and bounded on the North by lands of Gas-par, South by lands of Sulia Gaudet and/or M. Michel (now or formerly), West by Belle River and East by lands now or formerly of Brownell-Drews Lumber Company, Ltd.

This controversy centers around a disposition in the will of Gus Drews. In his last will and testament, Gus Drews made a testamentary disposition to R.E. Kidd, of “Birnley Place” or Plantation, which was located in Assumption Parish, Louisiana, and named his brother, William Drews, and his sister, Ella Drews Kidd, the residuary legatees.

Ella Drews Kidd was married but once, and then to R.E. Kidd, and of this marriage six children were born, Hugh Kidd, Roland Kidd, Arleigh Kidd, Douglas Kidd, Margaret Kidd Siener and Ella Kidd. Two of the six children born to Ella Drews Kidd and R.E. Kidd had children of their own. Hugh Kidd, had one son, Hugh Kidd, Jr. Roland Kidd (Sr.) had two children, Margie and Roland Kidd, Jr. Douglas, Arleigh, and Ella Kidd were never married and they had no children. Margaret Kidd Siener was married once, divorced, and had no children. William Drews was married but once and to Gazina Becker, and of this marriage three children were born, William Drews, Jr., Edna Drews Cox and Grace Drews Lehmann. Ella Drews Kidd and R.E. Kidd died intestate survived by their six children who were sent into possession by judgment dated June 29, 1945.

Before evaluating the facts and the law to make a determination of the issues involved herein, we observe that the motion for directed verdict in this non-jury case was filed and granted at the close of the plaintiffs’ presentation of evidence.

Pursuant to LSA-C.C.P. art. 1810 B, in an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party may move for dismissal of the action on the ground that upon the facts and law, the plaintiff has failed to show a right to relief. The court may, after determining the facts and applying the law, render judgment in favor of the mover.

In non-jury cases, such as the instant case, the appropriate standard for the trial court’s determination of a motion for directed verdict is whether plaintiff has presented sufficient evidence on his case-in-chief to establish his claim by a preponderance of the evidence. In making its determination on such a motion, the trial court is not required to review the evidence in the light most favorable to plaintiff, but may, based upon a preponderance of the evidence, render judgment in favor of the mover. Moreover, the directed verdict in a non-jury case should not be reversed in the absence of manifest error. Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir.1981), writ denied 412 So.2d 85 (La.1982).

In Bradley v. Hunter, 413 So.2d 674, 676 (La.App. 3rd Cir.1982), writ denied 415 So.2d 952 (La.1982), the Court stated:

When a motion for a dismissal is filed under this provision, the proper standard to be applied by the trial court, in ruling upon the motion, differs from the standard to be used when a motion for a directed verdict is filed in a jury trial. In a non-jury trial, the trial judge, upon a motion under art. 1810(B) for a judgment of a dismissal (upon completion of the plaintiff’s ease), must weigh and evaluate all of the evidence presented up to that point in the trial and must grant dismissal if the plaintiff has not established proof by a preponderance of the evidence. Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir. 1982); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir.1981). (footnote omitted.)

The burden of proof in the petitory action is provided in LSA-C.C.P. art. 3653 as follows:

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

Plaintiffs in a petitory action must recover on the strength of their own title, not on the weakness of that of their adversaries. Schutten v. Orleans Parish Levee District, 320 So.2d 605 (La.App. 4th Cir.1975), writ denied 323 So.2d 806 (La.1976).

At trial, the plaintiffs introduced a number of exhibits and elicited testimony in their attempt to prove title. The exhibits and testimony reveal that the property in dispute was acquired by Gus Drews from Newton J. Foote in December of 1901. The ownership of Gus Drews is undisputed, and he is the common author in title. The will of Gus Drews, in olographic form, dated September 16, 1919, was filed in evidence. Gus Drews died testate on January 13, 1923, leaving property described as the “Birnley Place” to his brother-in-law, R.E. Kidd. The remainder of the deceased’s property was left to his brother, William Drews, and his sister, Ella Drews Kidd, the wife of R.E. Kidd. By instruments referred to as Acts of Relinquishment and Ratification in November, 1936, the heirs of William Drews, the surviving spouse of William Drews and heirs of Ella Drews Kidd (but see footnote 4, infra) conveyed to R.E. Kidd, his heirs and assigns, “Birnley Place” and included the disputed 100 acres of land on Belle River.

Plaintiffs proof of their record title consisted of the following:

(1) Deed dated December 28, 1901, from Newton J. Foote to Gustave Drews (Gus), several tracts of land in Assumption Parish, including the subject property.

(2) Judgment putting universal legatees in possession dated March 14, 1923. William Drews and Ella Drews Kidd, in the proportion of one-half each, are named universal legatees.

(3) Judgment of possession dated June 29, 1945, recognizing the children of Robert E. Kidd and Ella Drews Kidd as the heirs of the decedents. Roland Kidd, Sr., Hugh Kidd, Douglas Kidd, Ella Kidd and Margaret Kidd Siener, undivided one-fifth each, were put in possession of the estates of the decedents. Tracts of land in a number of parishes, including Assumption Parish, are listed. The judgment specifically recognizes them as owner only as to an undivided one-half interest in the mineral rights in the subject property (It does not recognize any interest in the land as belonging to the decedents).

(4) Judgment of possession dated February 18, 1957, in the Successions of Roland Kidd, Sr. and Annie Talbot Kidd, recognizing Roland Kidd, Jr. and Margie Kidd Price as the heirs of the decedents. The property described includes property in St. Mary, Assumption and St. Martin Parishes, but does not include the disputed property. (An amended judgment of possession which described certain corporate stock, dated July 27, 1977, was made a part of this exhibit).

(5) Act of Relinquishment of Title dated November 17, 1936, from William Drews, III, Edna Drews Cox, and Grace Drews Lehmann, heirs of William Drews, Jr., deceased, recognizing the ownership of Robert E. Kidd in “Birnley Plantation,” and included the 100-acre tract in dispute herein. The grantors relinquished and quit-claimed any rights they might have had in the described property. They acknowledged also that Kidd was in possession thereof and had been in open, undisputed and continued possession of the tract, as owners, since on or about February 29, 1923.

(6) Act of Relinquishment of Title dated November 23 and 29, 1936, from Arleigh Kidd, Ella Kidd, Roland Kidd, Margaret Kidd Siener, Douglas Kidd and Hugh Kidd, heirs of Ella Drews Kidd, recognizing the ownership of Robert E. Kidd in “Birnley Plantation”, and included the subject property. The grantors relinquished and quit-claimed any rights in the property and acknowledged R.E. Kidd’s possession thereof. The instrument recited the same statement regarding said possession as did the November 12, 1936, act.

(7) Cash deed dated January 14, 1958, from Ella Kidd and Margaret Kidd Siener to Roland Kidd, Jr. conveying an undivided 44.87 acres in: Southeast Quarter of Section 36, Township 13 South, Range 12 East, containing 161.74 acres more or less, and 17.75 acres, more or less, in the Southwest Quarter of the same section, all in Assumption Parish.

(8) Agreement between Roland Kidd, Jr. and D.C. Walsh, dated January 17, 1958, affecting an undivided 33 acres in the same property described in the paragraph immediately above. The agreement does not purport to transfer the described property.

(9) Sale from William Drews, Grace Drews Lehmann and Edna Drews Cox to Rcland Kidd, Jr., dated June 11, 1958, of their undivided interest. The described land, containing 395 acres, more or less, purports to be redeemed by Kidd from the grantors. The purchase is limited to the surface rights, the minerals are reserved, and the property is warranted only to the extent of return of the purchase price.

(10) Sale dated April 11, 1960 from William Drews, Grace Drews Lehmann and Edna Drews Cox to Roland Kidd, Jr., a one-eighth undivided interest in numerous parcels of land, with warranty limited to the extent of the purchase price.

(11) Sale dated February 7, 1961, from David C. Walsh to Roland Kidd, Jr., a one-eighth undivided interest in numerous parcels of land, without any warranty.

(12) Cash deed dated April 16, 1964, from Nick J. Arcemont, Jr. to Roland Kidd, Jr. of vendor’s undivided interest in the surface rights to a tract of land in Section 36, Township 13 South, Range 12, East, Assumption Parish, Louisiana.

(13) Sale from Nick J. Arcemont to Roland Kidd, Jr., dated April 1964, of an undivided interest, without warranty, in numerous tracts of land.

(14) Release and quitclaim affecting the South half of Sections 35 and 36, Township 13 South, Range 12 East, Assumption Parish, dated June 29, 1971, from Cyrus Giroir (judgment creditor) to Roland Kidd, Jr. (judgment debtor).

(15) Deed from Julia B. Walsh, Dewey B. Walsh and D.C. Walsh, Jr. to D.C. Walsh Co., Inc., dated July 14, 1964, conveying an undivided interest in numerous tracts of land.

(16) Deed from Roland Kidd, Jr. to Gran-ville Alpha, dated August 25, 1958, of an undivided one-half interest in tracts of land, including tracts in Section 36, Township 13 South, Range 12 East, Assumption Parish.

(17) Cash deed dated January 12, 1978, from Roland R. Kidd to Clifford G. Dressel, of undivided one-sixteenth interest in vendor’s rights in a tract of land in Southwest Quarter of Section 36, Township 13 South, Range 12 East (and portions of Section 35). The deed is not recorded in Assumption Parish.

(18) Act of transfer from Roland Kidd, Jr. to Robert C. McHugh, dated January 20, 1976, conveying an undivided one-sixteenth interest in the South half of Section 36 and parts of Section 35, Township 13 South, Range 12 East. Also, there is a deed dated February 20, 1976, purporting to be act of correction, transferring an undivided one-sixteenth of vendor’s undivided right, title and interest in the surface rights of the property.

(19) Purports to be original records of the attorney who handled the Successions of Roland Kidd, Sr. and Annie Talbot Kidd, Douglas Kidd, and Ella Drews Kidd.

(20) Copy of letter from J.Y. Gilmore to Raymond Egle, dated September 6, 1948, concerning the subject property.

The plaintiffs attempted to prove their case by showing a record title; they do not claim ownership by virtue of acquisitive prescription. The evidence in the record does not establish an unbroken chain of valid transfers to the Kidd group from an ancestor in title common with the Egles. See Crown Zellerbach Corporation v. Heck, 407 So.2d 770 (La.App. 1st Cir.1981). This is shown inter alia, by the following:

(1) The declaration by the Succession of R.E. Kidd of Kidd’s mineral interest only in the property (previously sold to Egle), and the declaration that it was his separate property.

(2) The Act of Relinquishment and Ratification in favor of R.E. Kidd to the disputed property.

(3) The lack of acquisition of Nick Ar-cemont, in the plaintiffs’ chain of title.

Any break in plaintiffs’ chain of title is fatal to their claim. The chain of title upon which plaintiffs’ base their claim, instead of being clear, is obviously suggestive of litigation. This is illustrated by the items listed above. The record fails to explain these items, particularly the acts of relinquishment and ratification.

In reaching this conclusion, we point out that the plaintiffs had the burden of clarifying, explaining or removing these and any other deficiencies in the title. Rivet v. Dugas, 377 So.2d 489 (La.App. 4th Cir.1979). They failed to do so.

When the plaintiffs traced the titles of the parties to a common author, it was unnecessary for them to go further and trace the title to the sovereign, because the common author is by law presumed td be “the previous owner.” LSA-C.C.P. art. 3653; Weaver v. Hailey, 416 So.2d 311 (La.App. 3rd Cir.1982). Nevertheless, as plaintiffs out of possession in the petitory action, they had the burden of proving their title pursuant to LSA-C.C.P. art. 3653, as construed by Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974). According to Pure Oil, a plaintiff in a petito-ry action proves his title when he proves ownership either by an unbroken chain of valid transfers from the sovereign or an ancestor in title common with the defendant.

On the face of the record, we find that it was not error for the trial judge to conclude that, under the circumstances, the Kidd group failed to establish their title in the subject property. In a petitory action, this failure obviated any need of the trial court to go further with the trial. The title of the Egle group was not at issue until the plaintiffs had proved title in themselves. Green v. Cenac, 336 So.2d 349 (La.App. 1st Cir.1976), writ denied 339 So.2d 20 (1976).

For the foregoing reasons, we affirm the judgment of the trial court at appellant’s costs.

AFFIRMED.

      . Edna Zeringue Egle, one of the original parties to the suit, died pending the action and Nell Egle Brown and Marilyn Egle Sonnier were substituted for the decedent.

      . The Egle group originally sued the Kidd group in a possessory action over the property in dispute. The Kidd group converted the suit into a petitory action so they are the plaintiffs in the action before the court. Robert G. Haik, Brow-nell-Kidd Company and the Estate of Granville Alpha have settled their cases and are not parties to the appeal.

      . LSA-C.C.P. art. 1810 provides:
      ******
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . Although the instrument recites that Ms. Siener, Douglas Kidd and Hugh Kidd are represented by their attorney-in-fact, R.E. Kidd, no Power of Attorney appears in the record.


author: CRAIN, Judge.

text:
    Guy VERNON v. AETNA LIFE AND CASUALTY INSURANCE COMPANY, et al.
    No. 83 CA 0204.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Jerome Friedman, Metairie, for plaintiff-second appellant Pauper.
    Iddo Pittman, Jr., Hammond, for defendant-first appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in a workmen’s compensation case finding the plaintiff totally and permanently disabled under the “odd-lot” doctrine.

FACTS

On February 9, 1978, plaintiff, Guy Vernon (a self-employed person engaged in cutting and hauling wood), injured his back while attempting to free his saw which was caught in a tree limb. It was stipulated that plaintiff was injured while working in the course and scope of his employment for defendants, Triangle Timber, Inc. and Har-mond Hyde. Over the course of the next year, plaintiff was examined and treated by three different physicians, however, he continued to suffer pain in his back and down his right leg. He did return to the hauling business in August of 1978, despite his condition, in order to support his family. He continued to work sporadically until Christmas of 1981 at which time he quit work altogether due to the pain.

The plaintiff brought suit to collect workmen’s compensation benefits he alleged were due him and trial was held on January 21, 1980. The trial court concluded that plaintiff was not totally and permanently disabled, but that he did have a disability of 10 percent of his total body function. The trial judge further concluded that plaintiff had fully recovered and was able to return to his job, even though he was slightly hampered.

On appeal, this court remanded the case to the trial court for the limited purpose of receiving testimony and evidence to determine whether plaintiff falls within the “odd-lot” doctrine.

On remand, the trial court heard testimony from the plaintiff, his wife, and a vocational rehabilitation expert. The trial judge concluded that plaintiff did indeed fail under the “odd-lot” doctrine and was therefore totally and permanently disabled and entitled to $130.00 per week compensation from the date of the accident. The defendants appeal assigning as error the inclusion of the plaintiff under the “odd-lot” doctrine as well as the amount and method used in determining his compensation benefits.

THE ODD-LOT DOCTRINE

A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. La.R.S. 23:1221(2); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). Since the Louisiana Supreme Court’s decision in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), cases involving substantial pain are analyzed within the framework of the “odd-lot” doctrine.

In Lattin v. Hica Corporation, 395 So.2d 690, 693 and 694 (La.1981), the court gives the complete analysis to be used:

Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.
The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him.

It was established at trial that plaintiff had a 10 percent disability of the total body and could not do repeated heavy lifting, bending, and stooping. It was also established that plaintiff’s occupation as a wood cutter and hauler entails these activities every working day. Both the plaintiff and his wife testified as to the pain which plaintiff suffers upon engaging in these activities.

The defendants make much of the fact that the plaintiff returned to work in the wood hauling business several months after his accident and continued to work off and on for over two years. They also point out the fact that he substituted for a school bus driver for a short time in late 1980. We do not find the fact that Mr. Vernon attempted to work and support his family (including nine children — six at home) determinative of this issue. Both the trial court and this court found that plaintiff suffered substantial pain as a result of his endeavors to return to his normal job function. As did the plaintiff in Whitaker, Vernon simply tried to ignore his disability and worked in pain.

At the time of the trial on remand, plaintiff was 56 years old. He had only completed the seventh grade in school and had never had any other training or education which would qualify him for any other occupation. An expert witness in vocational rehabilitation, Cornelius Gorman, testified that plaintiff was a functional illiterate, with an I.Q. of 82, which placed him in the 11th percentile of the population. Mr. Gor-man stated that plaintiff’s prospects of returning to work are dim and Gorman also stated that he was not aware of any jobs in the local economy that might be open to the plaintiff.

Using the analysis contained in Lattin, we find no manifest error in the trial judge’s finding that plaintiff fits under the “odd-lot” doctrine and is totally and permanently disabled. The trial court’s factual determination will not be disturbed on appeal unless a review of the record reveals that the decision is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

COMPENSATION BENEFITS

The remaining issue in this appeal relates to the correctness of the trial court’s determination that plaintiff was entitled to $130.00 per week in compensation benefits.

In order to calculate his compensation benefits, it is first necessary to establish plaintiff’s average weekly wage at the time of the accident. La.R.S. 23:1021(10)(d) provides the formula as follows:

‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (d) If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four...

Using that formula, plaintiff’s average weekly wage amounted to $458.72. Defendants offer no evidence to refute this figure.

In accordance with Herrin v. Georgia Casualty & Surety Co., 414 So.2d 1323 (La.App. 2d Cir.1982), the trial court then determined that plaintiff was entitled to the maximum compensation benefit at the time, of $130.00 per week. The defendants argue that while citing Herrin, the trial court apparently did not use the proper method contained in Herrin in determining the plaintiffs rate of earning.

We note that the trial court did not detail what method it used in calculating plaintiffs true wage and, consequently, cannot tell whether or not adjustment was made for overhead as set out in Herrin; however, we find that the final figure reached was correct under the proper analysis.

In Herrin, 414 So.2d at 1327, the court quoted from 2 W. Malone & H. Johnson, Workers’ Compensation, Sec. 327 in 14 Louisiana Civil Law Treatise 102-104 (1980) as follows:

The term ‘wages’ means the amount earned by the employee through his own labor, rather than profits for his enterprising or rental for any equipment he may provide. Where an employee furnishes his own truck or other piece of equipment or provides his own helpers, an adjustment is ordinarily made in arriving at his wage so as to exclude those sums paid by the employer in remuneration for these items.
Two methods have customarily been used by our courts in making this adjustment. Often the courts select the wage of another worker who was doing the same work on a wage basis. The other method is to select the full per unit price or the gross wage paid, from which is deducted the reasonable rental value of the equipment and the amount paid to helpers. Sometimes the latter method is impractical because of the venturous nature of the undertaking.

No proof of another worker’s salary, who was doing the same work as plaintiff, was offered into evidence. Neither did plaintiff keep any records of his expenses. Using the latter method suggested by Malone and Johnson, plaintiff’s expenses would have had to have totaled 60% of his gross income in order to reduce the award of $130.00 per week. There is nothing in the record which would indicate an overhead figure even close to 60% of his wage. The plaintiff testified that his children helped him in the business and were not paid salaries. That only leaves the expense and upkeep of his truck to be deducted. Plaintiff also testified that he did the necessary mechanical work on the truck himself. Under these circumstances we believe this method is substantially accurate and avoids another remand.

We therefore find no error in the trial judge’s award of $130.00 per week in compensation benefits.

We do not find it necessary to consider plaintiff’s argument that he is entitled to penalties and attorney’s fees. Assignments of error not briefed nor argued are considered abandoned on appeal. Rule 2-12.4, Uniform Rules-Court of Appeal, State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983).

For the foregoing reasons, the judgment of the trial court awarding plaintiff workmen compensation benefits in the amount of $130.00 per week from the date of his accident is affirmed subject to credit for the amount of compensation paid. All costs of this appeal are to be paid by the defendants.

AFFIRMED.

      . A complete factual recitation, including plaintiffs medical history, is contained in the original opinion of this court, Vernon v. Aetna Life & Casualty Ins. Co., 409 So.2d 678 (La.App. 1st Cir.1981).

      . The original trial was held on January 21, 1980, prior to the case of Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980) which was handed down on November 10, 1980. In Oster, the Louisiana Supreme Court adopted the "odd-lot” doctrine for the first time in this state.

      . Total payments made to plaintiff during the twenty-six week period immediately preceding the accident amounted to $5,963.30. That figure reflects fifty-two actual payments which divided into $5,963.30, reflects a daily wage of $114.68. This is then multiplied by four to get the average weekly wage of $458.72.

      . At the time of plaintiffs injury, the Louisiana Department of Labor's maximum average weekly wage was $194.75, of which only two-thirds was payable — $129.83 (rounded off by statute to $130.00). $194.75 is only 42% of what plaintiffs gross average weekly wage was at the time of his injury. Therefore, plaintiffs expenses would have to amount to over 58% of his average weekly wage in order to merit a reduction in his compensation benefit. See Johnson v. Aetna Casualty & Surety Co., 422 So.2d 1187 (La.App. 1st Cir.1982), writ denied 429 So.2d 127 (La.1983).


author: LANIER, Judge.

text:
    Earnest Ray SMITH v. AMF TUBOSCOPE, INC., et al.
    No. 83 CA 0205.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Patrick D. McArdle, New Orleans, for plaintiff.
    Huntington B. Downer, Jr., Waitz, Downer & Best, Houma, for defendant Patterson Inspection Ser. Inc.
    Douglas C. Longman, Jr., Onebane, Do-nohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for AMF Tuboscope, Inc.
    Don L. Broussard, Lafayette, for Travelers Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for damages in tort alleging, in part, that a statutory employer (La. R.S. 23:1061) is liable for injuries sustained by a statutory employee from a defect in equipment manufactured by the statutory employer. The statutory employer filed a motion for summary judgment contending that the employee’s exclusive remedy was workmen’s compensation and that it was immune from suits of this type (La.R.S. 23:1032). The trial court granted the summary judgment and dismissed the claim against the statutory employer with prejudice. This devolutive appeal followed.

FACTS

On January 4, 1980, Gulf Oil Exploration & Production contracted with AMF Tubo-scope, Inc. (AMF) to inspect an allotment of pipes for defects. The inspections were normally performed by AMF employees with a testing machine designed and manufactured by AMF. AMF had a shortage of employees to do the job and contracted with Roustabouts, Inc. to furnish laborers. The plaintiff, Earnest Ray Smith, was an employee of Roustabouts, Inc. and was sent to the AMF yard to help inspect the pipes. While engaged in running pipe through the pipe testing machine, Smith sustained an injury to his right hand. Smith claims that the rollers on the testing machine were not working properly which caused his hand to be caught between two pipes and injured.

PRODUCTS LIABILITY OF STATUTORY EMPLOYER

Smith does not contest the fact that he was a statutory employee of AMF. Instead, he contends that since AMF designed and manufactured the testing machine which caused injury to him he has an independent cause of action against AMF arising under the theory of “products liability”.

When a principal engages a contractor to perform work which is a part of the principal’s trade, business or occupation, the principal remains liable for compensation to any injured employee of the contractor. La.R.S. 23:1061. When the work performed by the contractor is part of the principal’s trade, business or occupation, workmen’s compensation is the exclusive remedy of the contractor’s injured employee. La.R.S. 23:1032; Lewis v. Exxon Corporation, 441 So.2d 192 (La.1983), rehearing granted June 24, 1983; Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950); Moses v. Vulcan Materials Company, 388 So.2d 117 (La.App. 1st Cir.1980), writ denied 392 So.2d 1058 (La.1980). In particular, La.R.S. 23:1032 provides, in pertinent part, as follows:

The rights and remedies herein granted to an employee ... on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee ... against his employer, or any principal ... for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof (Emphasis added).

The legislature has not made “products liability” an exception to the exclusive workmen’s compensation remedy. There is no cause of action in “products liability” by an employee against his employer or statutory employer for injury for which the employer or statutory employer owes workmen’s compensation. Braud v. Dixie Machine Welding & Metal Works, Inc., 423 So.2d 1243 (La.App. 5th Cir.1982), writ denied 430 So.2d 77 (La.1983); Tomasich v. United States Fidelity & Guaranty Company, 415 So.2d 1002 (La.App. 4th Cir.1982), writ denied 420 So.2d 446 (La.1982); Courtney v. BASF Wyandotte Corporation, 385 So.2d 391 (La.App. 1st Cir.1980), writ denied 386 So.2d 359 (La.1980); Atchison v. Archer-Daniels-Midland Company, 360 So.2d 599 (La.App. 4th Cir.1978), writ denied 362 So.2d 1389 (La.1978).

PAYMENT OF COSTS BY INDIGENT

Although Smith has proceeded in this appeal in forma pauperis, he is responsible for payment of the costs of this appeal because he failed to prevail. La.C. C.P. art. 5188; Williams v. Dupre, 347 So.2d 1214 (La.App. 1st Cir.1977).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed. The appellant is cast for the costs of this appeal.

AFFIRMED.

      . After the statutory employer filed its motion for summary judgment, the employee added the statutory employer's insurer as a party defendant by way of an amended petition. The judgment dismissing the claim against the statutory employer did not dismiss the claim against the statutory employer’s insurer.

      . This statute reads as follows:
      Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Rubin WADE.
    No. 83-KA-0206.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie B. Brown, Dist. Atty. by Richard Chaffin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Leon Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, Rubin Wade, was indicted by the Grand Jury and charged with having committed aggravated rape (R.S. 14:42) and aggravated burglary (R.S. 14:60). After entering a plea of not guilty, defendant was tried by jury and found guilty of both crimes. For the aggravated rape conviction, defendant was given the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. For the aggravated burglary conviction, defendant was sentenced to 29 years at hard labor, to be served consecutively to the aggravated rape sentence.

Defendant now appeals his convictions and sentences, alleging 31 assignments of error. However, defendant has only briefed 15 of these on appeal, the remainder being neither briefed nor argued. Such assignments are considered abandoned. State v. Williams, 418 So.2d 562 (La.1982); Rule 2-12.4, Uniform Rules, Courts of Appeal.

Fourteen of defendant’s assignments (Nos. 13-25, 27) are consolidated on appeal, since they make the same objection, i.e., that the trial judge erred in allowing two defense witnesses to plead their Fifth Amendment privilege against self-incrimination. Defendant’s remaining assignment alleges that the trial judge imposed an excessive sentence. For the reasons expressed below, we affirm both of defendant’s convictions and his sentence for aggravated rape, but vacate the sentence for aggravated burglary and remand for resen-tencing.

BACKGROUND FACTS

The victim, Jane Doe, was sleeping in her bed when she was awakened by the smell of cigarette smoke at around 5:00 a.m. She saw a man standing in her bedroom door. She grabbed the phone to call for help, but the intruder took it away from her. Doe’s son, awakened by his mother’s screams, came to the bedroom door. Her daughter, in a baby bed in the bedroom, started crying. The man threatened to kill everyone in the house, which included three other children, if the boy did not go back to his room and the girl didn’t stop crying. After calming the children, Doe was raped by the intruder, who held a gun to her neck.

Because of the early morning light and the perpetrator’s close proximity to her, Doe got a good look at the man’s face. She subsequently identified the defendant as the perpetrator in a photo lineup and later at trial.

PRIVILEGE AGAINST SELF-INCRIMINATION

During the trial, defendant called Ronald Butler and Alvin Keller as witnesses. Defendant was attempting to elicit from them testimony concerning an alleged conversation in which Butler told Keller that he had raped Doe but the defendant was taking the “rap” for it.

However, each witness invoked his Fifth Amendment privilege against self-incrimination in response to certain questions. Over defendant’s objections, the trial judge allowed the witnesses to assert their privileges. Defendant contends that the trial judge’s rulings denied him his right under Article I, section 16 of the Louisiana Constitution of 1974 to compel the attendance of witnesses and the right to present a defense. Furthermore, defendant asserts that the trial judge should have granted the witnesses judicial immunity to compel their testimony.

Although the U.S. and Louisiana Constitutions give a defendant the right to bring his witnesses to court and have non-privileged testimony heard, they do not act to displace a proper claim of the privilege against self-incrimination. State v. Mattheson, 407 So.2d 1150 (La.1981). Where a defendant may assert his privilege as an excuse for refusing to take the stand, a witness may assert the privilege only with respect to particular questions, with the trial judge ruling on the viability of each assertion. State v. Coleman, 406 So.2d 563 (La.1981). Moreover, the protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. State v. Coleman, supra.

Additionally, the trial judge has no statutory authority to grant witness use immunity, except when requested to do so by the District Attorney and Attorney General pursuant to La.Code Crim.P. Art. 439.-1, a situation not present in this case. Nor does the due process clause require that witness use immunity must be ordered whenever it seems fair to grant it. State v. Edwards, 419 So.2d 881 (La.1982); State v. Mattheson, supra. At the outset, it must be noted that no request was made by defendant at trial for the witnesses to be granted immunity. Hence, the issue of judicial immunity was not presented to the trial court for consideration. In this posture, we cannot on the record before us conclude that the witnesses were entitled to immunity.

It is clear from the transcript of testimony that the trial judge made his decision on the witnesses’ right to invoke their Fifth Amendment privilege by ruling question by question, following the guidelines in State v. Coleman, supra. The record shows that Butler asserted his Fifth Amendment privilege in response to direct questions concerning the alleged conversation between him and Keller and whether he raped Doe. As direct answers to these questions could certainly incriminate Butler, the trial judge acted properly in upholding his privilege.

Regarding the testimony of Keller, defendant contends that the court improperly allowed him to assert his Fifth Amendment privilege in response to an inquiry regarding whether he and Butler had discussed the rape of Doe. However, the record reveals that Keller answered this question and denied having discussed the victim’s rape with Butler.

Closer inspection reveals that the only time Keller invoked his Fifth Amendment privilege was in response to the question, “Did you and Ronald Butler talk about rape?” A subsequent question as to whether he and Butler discussed the victim’s rape was then answered negatively. Defendant’s above contention simply has no basis in the record and is without merit. Moreover, Keller’s assertion of its Fifth Amendment privilege to such a vague, incriminating question was properly upheld by the trial judge.

EXCESSIVE SENTENCE

In this assignment, defendant complains that the sentences imposed are excessive and violate his constitutional right against cruel and unusual punishment. La. Const. Art. I, sec. 20. Since the life sentence for aggravated rape is mandatory and has been held constitutional [State v. Farria, 412 So.2d 577 (La.1982)], our inquiry regarding excessiveness of sentence will relate only to the sentence of 29 years at hard labor for aggravated burglary (maximum sentence: 30 years), to be served consecutively to the life sentence.

The imposition of an excessive sentence is prohibited by La. Const. Art. I, sec. 20. Although within the prescribed statutory limits, a sentence may still violate a defendant’s right against excessive punishment where it is grossly disproportionate to the severity of the crime, or it is nothing more than the needless imposition of pain and suffering. State v. Donahue, 408 So.2d 1262 (La.1982); State v. Reed, 409 So.2d 266 (La.1982). Maximum sentences are imposed in the most serious violations of the described offense and for the worst offender. State v. Jones, 398 So.2d 1049 (La.1981).

The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. Art. 894.1, are an important aid to this court when reviewing a sentence complained of as excessive. State v. Jacobs, 383 So.2d 342 (La.1980). As stated in State v. Howard, 414 So.2d 1210, 1216 (La.1982):

“Adequate review mandates that the trial judge state specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. While the trial judge need not articulate every aggravating and mitigating circumstances presented in La.C. Cr.P. Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Guiden, 399 So.2d 194 (La.1981). The trial judge’s reasons in imposing sentence are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Spencer, 374 So.2d 1195 (La.1979).”

In imposing sentence, the trial judge ought to consider such factors as the defendant’s personal history, his prior criminal record, the seriousness of the crime, the circumstances of the offense, the likelihood that defendant will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jackson, 360 So.2d 842 (La.1978). The imposition of consecutive sentences, which requires particular justification when the crimes arise from a single course of conduct, is justified when the offender poses an unusual risk to public safety due to his past conduct or repeated criminality. State v. Lewis, 416 So.2d 921 (La.1982); State v. Carter, 412 So.2d 540 (La.1982).

In the instant case, the record is devoid of the transcript of the sentencing hearing, even though defendant designated such transcript by motion as part of the appellate record. The record does contain a minute entry, dated November 3, 1982, stating that a sentencing hearing was held on this date. The entry notes the sentence given to defendant for aggravated rape and aggravated burglary, and then lists the following as the factors considered by the court in sentencing:

“(1) Sentence as to Count I is a mandatory one; Court has no discretion;
(2) Accused refused acknowledge to [sic] guilt;
(3) Accused apparently perjured himself through his witnesses;
(4) Evidence was overwhelming that the accused was guilty;
(5) These were henious and vicious crimes.”

Additionally, no presentence investigation report was prepared, and the only evidence of defendant’s past criminal record revealed during the trial was defendant’s admission of being twice convicted for illegal possession of weapons.

In light of the authority discussed above, we find that the factors listed in the minute entry do not adequately reflect a sufficient compliance with La.Code Crim.P. Art. 894.-1. Except for (5), the reasons given are either irrelevant or highly subjective in regards to the sentence imposed for aggravated burglary. Although noncomplianee with Art. 894.1 does not necessitate a remand for resentencing where the record otherwise clearly illumines the sentencing charge, the record before us fails to present a reasonable basis to sustain the severe sentence of 29 years at hard labor, served consecutively. State v. Lewis, supra; State v. Robicheaux, 412 So.2d 1313 (La.1982); State v. Cox, 369 So.2d 118 (La.1979). The record does not reflect, for example, that any investigation as to defendant’s possible dangerous character or repeated criminality was made, which is a normal basis for consecutive sentences. State v. Carter, supra.

Accordingly, while we affirm both convictions and also the life sentence for aggravated rape, we vacate and set aside the consecutive 29 year sentence for aggravated burglary. Our decision represents a finding of a substantial possibility that the sentence for aggravated burglary is excessive and not a final judgment that it is invalid. The same sentence will be upheld on a second appeal if the record and the trial judge’s reasons demonstrate that the sentence is not excessive under the circumstances of the particular case. Thus, the sentence is vacated and the case remanded for resentencing in compliance with La. Code Crim.P. Art. 894.1, with individualization of the sentence by stating for the record the considerations taken into account and the factual basis therefor. State v. Robicheaux, supra.

DECREE

For the foregoing reasons, defendant’s convictions and life sentence for aggravated rape are affirmed, but his sentence for aggravated burglary is vacated and the case is remanded for resentencing.

BOTH CONVICTIONS AFFIRMED; SENTENCE FOR AGGRAVATED RAPE AFFIRMED; SENTENCE FOR AGGRAVATED BURGLARY VACATED, AND CASE REMANDED FOR RESENTENC-ING.

      . This is an assumed name used to protect the identity of the victim.


text:
    STATE of Louisiana v. Glen GARBO.
    No. 83 KA 0215.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Jack J. Mendheim and Peter J. Garcia, Asst. Dist. Attys., Covington, for appellee.
    Wendell E. Tanner, Slidell, for appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Glen Garbo, was charged by bill of information with simple burglary, in violation of La.R.S. 14:62, in connection with the break-in of a lounge in Slidell, Louisiana, on July 25, 1979. Prior to the trial on September 13, 1982, defendant moved for permission to file a motion to quash the information on the basis that the time limitations for the commencement of trial had expired. The trial court deferred consideration of the matter until after the trial on the merits. The jury convicted defendant as charged and he was subsequently sentenced to serve eight years at hard labor. Defendant then filed a written motion to quash the information, and without objection from the State, the court held an evidentiary hearing. The trial court denied the motion, finding adequate suspension of the prescriptive period to permit the State to continue prosecution. Defendant applied for writs to this court, seeking a review of the ruling and the denial of an appeal bond. The court denied the writ on the basis that defendant had an adequate remedy on appeal. Defendant has now appealed, alleging three assignments of error:

1. The court erred in allowing into evidence a statement made by defendant to Detective John Passaro.
2. The court erred in allowing the State to obtain testimony of a prior inconsistent statement of Charles Brown.
3. The court erred in failing to grant the Motion to Quash based on the expiration of the time limits for the commencement of trial.

Assignment of Error Number One was not briefed and is thereby considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4. Finding merit in Assignment of Error Number Three, we pretermit discussion of Assignment of Error Number Two and, accordingly, reverse defendant’s conviction.

Defendant was arrested on August 31, 1979, and arraigned on September 17, 1979, for the burglary of the Seville Lounge which took place in the early morning hours of July 25, 1979. At the time of the break-in, an alarm summoned the police, who arrived on the scene in time to observe two individuals leave the building and run through the woods nearby. Inside the building, the officers found burglary tools, a sack, and coins out of the machines which had been broken into. A car later determined to belong to defendant’s mother was found outside the building and a check of the engine revealed that the vehicle had been recently used. Defendant and an accomplice were located and questioned within a few hours. The prosecution was instituted by the filing of a bill of information on August 30, 1979.

The Louisiana Code of Criminal Procedure in article 578 establishes the prescriptive periods for the commencement of criminal trials and prohibits the trial of non-capital felony matters beyond two years from the date of the institution of the prosecution. The articles following this provision provide for the interruption of the period of limitation (article 579) and the suspension of the time limitations (article 580).

The institution of prosecution begins with the filing of a bill of information. La.C.Cr.P. art. 934(7). By the provision of La.C.Cr.P. art. 578, the trial for this proceeding could not begin after August 30, 1981, without a showing that the time limits had been interrupted or suspended. In this regard, it should be noted that the State bears a heavy burden of proof to establish the interruption or suspension. State v. Williams, 414 So.2d 767 (La.1982). Yet at the hearing on the motion to quash, the State failed to present any evidence which would establish an interruption or a suspension. Interestingly enough, in opposition to defendant’s application for writs and his appeal, the State argues only that defendant waived his right to assert the limitation by his failure to timely file a written motion to quash, and his failure to obtain a ruling on his oral motion at the trial on the merits.

A motion to quash based on the ground that the time limitation for the commencement of trial has expired may be filed at any time before commencement of trial. La.C.Cr.P. art. 535 B. The grounds for this motion are waived unless a motion to quash is filed in conformity with the governing provisions. La.C.Cr.P. art. 535 D. Defendant claims in brief that he moved the court to allow the filing of the motion to quash prior to trial. Although the transcript does not reflect this exchange, it does show that a bench discussion was held prior to the defense attorney’s statement in the record that defendant was prepared to proceed to trial subject to his right to file a motion to quash. Defendant was clearly entitled of right to file his motion before trial without leave of court, and if there were any objections to the granting of the court’s permission to permit the motion to be filed after trial, they should have been noted and defendant could have continued the case for a few minutes until the motion was prepared and filed. The State did not object. We believe this failure of the prosecution to object at the time defense counsel announced they were proceeding subject to their right to file a motion to quash later, and the fact that the court actually heard the matter after the trial served to waive the statutory requirements, and the State’s argument that the motion was not timely is rejected.

Because we consider the issue timely raised, we must now proceed to determine the correctness of the trial court’s ruling denying the motion to quash. This will necessitate a somewhat detailed accounting of the relevant events as they occurred in this case. Our principle objective will be to determine if any suspension in the two year period took place.

As noted earlier, the bill of information charging defendant with the crime was filed August 30, 1979. Clearly, the two year period for the commencement of trial began to run at this point and it continued to run until September 27, 1979, when defendant filed numerous .pleas. Thus, the period ran for 28 days. By November 6, 1979, these pleas had been disposed of to defendant’s satisfaction, and it was also determined there existed probable cause to hold defendant for trial. As such, the period of limitation began to run once more on November 7, 1979.

On November 29, 1979, the defendant’s attorney filed a motion to withdraw which was signed by the trial judge on December 5, 1979. It is at this point that the trial court erred in calculating the period of limitation. The lower court held the time period in abeyance from December 5, 1979 until March 14, 1980, when defendant’s second attorney filed various pleas in the record. However, it has been held that where the motion to withdraw does not affect the State’s efforts to prosecute, then such a motion is not tantamount to a “preliminary plea” as referred to in La.C.Cr.P. art. 580 (which would suspend the running of the period of limitation). State v. Carr, 271 So.2d 871 (La.1973); see also State v. Cooper, 389 So.2d 1124 (La.1980). The State did not carry the burden to show its prosecution of the case was affected in any way by the motion to withdraw. The State could have required the defendant to come into court and advise the court of his counsel (which it did at a later date on another matter). That it did not do so is an indication that the prosecution of the defendant was not affected. Thus, we hold that the period of limitation continued to run between November 6, 1979, (the date the initial preliminary pleas were disposed of) and March 14, 1980, when defendant’s new counsel filed preliminary pleas of his own. Prom November 7, 1979 until March 14, 1980, is an additional 128 days. Added to the previous period of 28 days, up to this point in time (March 14, 1980) it had been 156 days since the institution of prosecution.

Between March 14, 1980 and July 29, 1980, the defendant filed various motions which suspended the running of the period of limitation or joined with the State to continue the trial without dates, except for a period totaling 9 days. Thus, between March 14, 1980 and July 29, 1980, we add 9 days to the previous 156 days, giving us a total of 165 days since the institution of prosecution. On July 29, 1980, the case came up for trial but was continued without date on the motion of the district attorney. Although it was incumbent upon them to do so, no reason was given by the State at the hearing of the motion to quash or in brief why the trial was continued. Additionally, the minutes do not reflect that the defendant joined in this motion, nor did the trial judge find the defendant wished to have the trial continued. Accordingly, we find the period began to run once more on July 29, 1980.

It is agreed by everyone involved that nothing else was done on this case until April 26,1982, when the defendant failed to appear in court (for a matter not identified in the record), his bond was ordered forfeited, and an arrest warrant was issued. (Defendant has argued that he never received the summons to appear in court on April 26, and that he thought the charges had been dropped when he heard nothing on the case for over a year). Following the April, 1982, court date, several items were placed on the court’s docket at the behest of the defendant or made jointly by the defendant and the State. The case finally came on for trial on September 13 and 14, 1982. As we stated earlier, prior to the trial the defendant made known his intention to file a motion to quash which was later taken up and ruled upon by the court without objection from the State.

Returning to July 29, 1980, and counting forward up through April 26, 1982, one finds an additional 635 days had passed. When this figure is added to the 165 days which had run prior to July 29, 1980, it is clear that 800 days had run from the time the prosecution was instituted until the commencement of trial. This is a clear violation of the provisions of La.C. Cr.P. art. 578. We also note that the State has not presented any arguments or evidence to the trial court or this court suggesting an interruption of the period of limitation as per La.C.Cr.P. art. 579. Thus, because we find defendant’s third assignment to have merit, we reverse the trial court’s denial of defendant’s motion to quash the bill of information and order defendant’s conviction overturned and order the defendant discharged.

REVERSE AND DISCHARGE.

      . There was some concern expressed at the hearing regarding three motions to continue requested by the district attorney on January 14, 1980, and February 15 and 27, 1980, respectively. It was suggested that these may have been joint motions which would have suspended the period of limitations. However, the minutes reflect that these continuances were granted on the motion of the district attorney only and there was testimony from a minute clerk at the hearing on the motion to quash that if these motions would have been joined in by the defendant, the minutes would have reflected such. The State bears the burden to show that these were joint motions. Since it did not come forward with any evidence on this question, we will not second guess the minutes and assume the defendant joined in these motions to continue.


text:
    STATE of Louisiana v. Alfred A. EDWARDS and Carnell C. Morris.
    No. 83-KA-0217.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie Brown, Dist. Atty. by Glen Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Asst. Public Defender, Baton Rouge, for defendant-appellant Morris.
    Norman Haymer, Baton Rouge, for defendant-appellant Edwards.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, Carnell C. Morris, was charged by bill of information with three counts of armed robbery in violation of R.S. 14:64. The same bill of information also charged Alfred A. Edwards with the same crimes. Morris pled not guilty while Edwards entered a guilty plea and was sentenced to 14 years at hard labor on each count of armed robbery, with each term to be served concurrently.

After trial, Morris was found guilty of simple robbery on counts 1 and 2, and not guilty on count 3. Morris received a sentence of seven years at hard labor on each count, with the sentences to run consecutively. Defendant Morris now appeals this sentence, alleging as his sole assignment of error that the trial judge imposed an excessive sentence. We affirm.

BACKGROUND FACTS

Morris and Edwards drove up and parked by the gasoline tanks of a 7-Eleven store in Baton Rouge, Louisiana. Both men entered the store with Morris going to the front counter and Edwards to the rear area. Morris purchased a pack of cigarettes and when the store clerk opened the cash register drawer, grabbed the money lying therein and ran out to the car. During this action, Edwards was robbing a customer and another clerk at gunpoint in the rear of the store. After Morris exited, Edwards came to the front counter, grabbed two cartons of cigarettes and ran out the store to join Morris. Both men were subsequently apprehended after a high speed auto chase and identified by a store clerk as the robbers.

EXCESSIVE SENTENCE

Generally, a sentence is excessive when it is nothing more than a purposeless and needless imposition of pain and suffering that is grossly out of proportion to the severity of the offense. In determining whether a sentence is grossly disproportionate to the severity of the crime, this court must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the' punishment is so disproportionate to the crime as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

A sentence imposed upon a defendant may be within the statutory limits, yet still constitute an excessive sentence. State v. Sepulvado, 367 So.2d 762 (La.1979). The guidelines provided in La.C. Crim.P. art. 894.1 furnish the appropriate criteria by which to review whether a sentence within statutory limits is nonetheless excessive, either because of its length or its specification of confinement rather than less onerous alternatives. State v. Sepulvado, supra. Subsection B of La.C. Crim.P. art. 894.1 requires the sentencing court to consider any mitigating factors, as well as circumstances militating for incarceration. However, art. 894.1 does not require the trial judge to set forth all the factors listed therein to which he accorded weight. State v. Mathews, 428 So.2d 988 (La.App. 1st Cir.1983). All that is necessary in the imposition of sentence is that the trial judge provide an adequate basis for appellate review showing that all relevant factors have been considered. State v. Easley, 432 So.2d 910 (La.App. 1st Cir.1983).

Defendant Morris complains that in imposing sentence, the trial judge ignored certain mitigating factors, specifically appellant’s secondary role in the robbery and his sincere belief that Edwards was not armed. Additionally, appellant contends that the trial judge did not articulate sufficient reasons for the imposition of consecutive sentences, which require particular justification when imposed for crimes arising from a single course of conduct. State v. Messer, 408 So.2d 1354 (La.1982).

However, the record before us on appeal contains the transcript of appellant’s sentencing hearing and reveals that the trial judge became aware of these alleged mitigating factors through a statement made in defendant’s behalf by his counsel. Additionally, in explicating the basis for his sentences, the trial judge noted that appellant was a second felony offender, and, after listing defendant’s extensive past criminal record, stated that “the court considers the defendant to be a continuing threat to society.” Such factors sufficiently provide the special justification required for the imposition of consecutive rather than concurrent sentences. State v. Messer, supra. Accordingly, we find that the trial court has adequately contemplated and complied with the statutory guidelines for sentencing contained in La.C.Crim.P. art. 894.1.

DECREE

For the above-expressed reasons, we find defendant’s assignment of error without merit and affirm the sentence imposed.

SENTENCE AFFIRMED.

      . Defendant Edwards abandoned his appeal by a motion and order signed by this Court.