author: GARRISON, Judge.

text:
    STATE of Louisiana v. Leonard MONTEGUT.
    No. KA 0393.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1983.
    Rehearing Denied Nov. 22, 1983.

      Harry F. Connick, Dist. Atty. of Orleans Parish, Mary Charlotte McMullan, Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff-appellee.
    Arthur L. Harris, Sr., New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and KLEES, JJ.
   GARRISON, Judge.

Leonard Montegut was charged on January 28, 1982 with the crime of possession of heroin with intent to distribute. After hearings on defendant’s motion to suppress the evidence on April 12, 1982 and motion to suppress the confession on April 29,1982, the matter was tried before a jury on August 3 and 4, 1982. The jury found the defendant guilty of simple possession of heroin. The defendant was sentenced on August 10,1982 to serve eight years at hard labor, with credit for time served. Defendant appeals that conviction.

Our review of the record in this case discloses the following facts. On August 18, 1981 pursuant to information received through an informant, members of the New Orleans Police Department’s Narcotics Division obtained a search warrant for 2808 Dumaine Street in New Orleans, the home of the defendant, Leonard Montegut. When officers arrived at the address Mr. Montegut refused to answer the door, so the officers forcibly entered the residence and informed the defendant of their warrant. The defendant became hostile and began “throwing a temper tantrum,” in the words of the officers, as a result of which he was removed from the residence and taken to the Narcotics office. While there the defendant complained of pain in his hip and was subsequently transported to Charity Hospital, where he was examined.

While the defendant was being examined at Charity, the transporting officers received a radio transmission that the officers conducting the search of Mr. Montegut’s residence had recovered eleven sealed plastic bags, which appeared to contain heroin, from a cabinet under the kitchen sink. The defendant was then taken back to his residence, placed under arrest and given his constitutional rights, which he stated he understood. As a result of the search, in addition to the heroin officers confiscated drug related paraphernalia, two guns and $961.00 in cash.

Defendant bases this appeal on alleged trial court error in the following respects: (1) In denying his motion to suppress the evidence; (2) In denying his motion to suppress the confession; (3) In overruling a defense objection to opinion testimony given by a police officer whose expertise had previously been stipulated.

SUPPRESSION OF THE EVIDENCE

Defendant’s first assignment of error specifies that the trial court erred when it denied his motion to suppress evidence, because the affidavit for the search warrant was insufficient to sustain a finding of probable cause.

To be sufficient under the law, an affidavit for a search warrant is required to meet a “two-pronged” test which was first jurisprudentially enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and which has been applied by the Supreme Court of this state in State v. Jeffcoat, 403 So.2d 1227 (La.1981) and State v. Hernandez, 408 So.2d 911 (La.1981).

The first prong of the test requires that the affidavit contain a recital of facts from which a neutral and detached magistrate may conclude that probable cause exists, rather than merely basing his determination of probable cause on the conclusions provided by others. This test may be satisfied by a showing that the information is the personal knowledge of the informant, through either direct observation or participation. State v. Stephenson, 387 So.2d 1111 (La.1980).

The second prong of the test requires that facts be presented which allow the magistrate to determine the reliability of the informant. The test may be satisfied either by a statement of the informant’s past performance (i.e., that his information has in the past led to arrests and convictions) or by the fact that his information constitutes an admission against the informant’s personal interest. State v. Buckley, 426 So.2d 103 (La.1983).

In the case before us, the affidavit meets both tests. The affidavit states, initially, that NOPD narcotics officers Koch and Fascio met with members of the Jefferson Parish Sheriff’s Office on August 18, 1981 and learned of the arrest four days earlier of one Gerald Searles, on two narcotics charges. The affidavit further avers that since the time of his arrest Searles had cooperated with Jefferson Parish Sheriff’s Office Detective Devlin in return for consideration with regard to those charges, and further, that at the time of his arrest Searles stated that heroin seized at that time had come from Leonard Montegut, who resides at 2808 Dumaine Street. The affidavit then set forth these specific facts:

“3. Searles stated that two weeks prior to the date of arrest (8-14-81), he went with Montegut to “Self Service Storage & Mini WareHouse located at 4640 Almo-naster Avenue, where Montegut has a storage room. Searles stated that he was not allowed to see the exact Storage Room that Montegut went to, but did observe a package that Montegut brought out with him. Searles stated that after leaving the Warehouse, he went with Montegut to 2808 Dumaine Street in the rear apartment and observed Montegut open the package, which contained about 6 to 8 Ozs of Heroin. Searles stated that he commented to Montegut that that was a lot of ‘Dope’, and that Montegut stated something to the effect that ‘This’ was only a portion of what he had, that originally brought in ‘2 Keys’ and that he still had three pounds left. Searles stated to Det. Devlin that Montegut took the Heroin that he brought to 2808 Dumaine and ‘Stepped On it Once’ (Diluted it by 50%) giving him somewhere in the area of a Pound Searles stated that he was present when the Heroin was cut, and that he sampled some of it, and that in his opinion, it was good Heroin. Searles stated to Det. Devlin that he had allready started negotiations with Montegut to purchase about 2 and ½ Ozs. of Heroin for $5000.00, and that he was supposed to contact him on Saturday 8-15-81.
4.On Saturday 8-15-81 at about 10:30 a.m. Det. Devlin, with Searles permission, monitored a telephone call between Mon-tegut and Searles, and made a tape recording of that conversation. That tape and other tapes will be made available to the Courts for any and all proceedings. Devlin stated that during the course of the conversation, Searles further negotiated with Montegut about the Heroin talked about previously and at the same time attempted to work an undercover Narcotics Agent into the deal. Montegut didn’t like the idea of dealing with any other than Searles, and postponed the negotiations until Tuesday 8-18-81.
5. On Tuesday 8-18-81 at about 11:00 a.m. Gerald Searles NM made a telephone call to Leonard Montegut. Montegut didn’t have time to talk and told Searles to call later. A second call was made at about 1:00 p.m. the above date, Searles received no answer. It should be noted that the telephone number called all three times was 821-9554, and that three calls were monitered and taped by Det. Devlin in Searles presence.
6. On Tuesday 8-18-81 at about 4:30 p.m. N.O.P.D. Narcotics Officers Stephen Koch and Rudolph Fascio and J.P.S.O. Narcotics Dets. John Devlin and Jim McLim went to the Self Store and Mini Warehouse located at 4640 Almonaster and met with the resident Manager, Katherine Crawford. The Officers produced a B of I photograph baring (sic) number 109-105, a photograph of Leonard Montegut and asked Ms. Crawford if she had ever seen this person at the Storage Warehouse. She stated that she did recognise him. Upon the Officers providing Ms. Crawford with the name Leonard Montegut, Ms. Crawford pulled some records with the name Leonard Montegut and stated that he rents a shed numbered A163. She stated that she felt something was funny about Montegut’s activities, that when he originally rented the Shed, he stated that he was storing a few things, that he was going to California and that he has made several trips to the Shed since then. Ms. Crawford stated that anytime someone comes to the Warehouse, they must register with the Management, and that she keeps a register at all times. The register, which was viewed by the above mentioned Officers showed Leonard Montegut coming to the warehouse on 8-3-81 at about 5:00 p.m. which is about 2 weeks prior to the above date, as Gerald Searles stated. According to the records, Montegut showed an address of 2848 Cluet (sic) St. Ms. Crawford looked in updated records, and told the Officers that the address on the newer records was 2808 Dumaine St. The same address that Searles stated Monte-gut resides at, and the same address that Searles saw and Used Heroin.
7. Upon leaving the Warehouse, Officers Koch and Fascio went to 2808 Du-maine St. and upon arriving, saw an unknown negro male walk out of the alley directly to the right of 2808 Dumaine St., which leads to the rear of 2808 Dumaine St. As the Officers passed, the subject wearing a green shirt and green pants, looked in the direction of the Officers, and the Officers noticed that his demean- or changed from somewhat calm to panic. As the Officers passed they observed the subject change his direction to just the opposite, and saw him walk back up the alley. The Officers went around the block, and returned to the front of 2808 Dumaine and noted no one in the alley. The Officers left the area at that time.
8. Gerald Searles is presently locked down at the Jefferson Parish Correctional Center under a $47000.00 Bond, which he can’t make. J.P.S.O. Det. Devlin feels that there is no way that Searles can make the Bond, and that any other attempt at Working an undercover Officer without Searles being present would be futile.
9. It should be noted that the N.C.I.C. Computer indicates that Montegut has two (2) prior Felony Convictions. The Officers were unable to determine what they were for.
10. Because of the information received, what the Officers investigation revealed and the Officers own observations, it is believed that Leonard Montegut is presently storing Heroin within a Storage Shed, number A 163, at the Self Service Storage & Mini Warehouse located at 4640 Almonaster, and within an apt. directly to the rear of 2808 Dumaine St. and respectfully request that this application be signed.”

The affidavit clearly sets forth a whole series of facts reflecting the informant’s observation of and participation in narcotics transactions with the defendant over a two-week period leading up to defendant’s arrest. There can be no question but that the informant’s information was based on his personal knowledge, rather than mere conclusions,

Furthermore, we are unable to discern error in the trial court’s finding that the magistrate properly determined the informant was reliable. Although the affidavit did not attest to the applicants’ past use of the informant in obtaining convictions, the information elicited from Searles was obviously contrary to his personal interest. See State v. Mosley, 412 So.2d 527 (La.1982). He was, at the time he gave applicants the information contained in the affidavit, under arrest on two narcotics charges , and his implication of Montegut as his source was in effect a confession of his involvement.

Additionally, the affidavit provided corroborating evidence in the form of the statement of the manager of the self-storage warehouse that Leonard Montegut was there on August 3, within the time frame that Searles had alleged; the phone conversation which officers monitored with the permission of Searles, in which he and the defendant were negotiating a narcotics transaction; and the officers’ own brief surveillance of Montegut’s Dumaine Street residence and the suspicious person walking out of the adjacent alley whose demeanor “changed from somewhat calm to panic” when he noticed the officers.

Based on the above facts and on the totality of the circumstances, we find that probable cause existed for the issuance of the search warrant, and that the evidence was therefore seized pursuant to a valid warrant. For this reason, we find defendant’s first assignment of error to be without merit.

SUPPRESSION OF THE CONFESSION

The record reflects that Leonard Monte-gut made two separate inculpatory statements to the narcotics officers who arrested him. According to Officer Robert McNeil, who accompanied the defendant to Charity Hospital, while at Charity he received the radio report of the recovery of heroin from the defendant’s residence. At that time Montegut, who was seated next to Officer McNeil and heard the radio transmission, stated,

“I guess it’s all over. I can’t go to the penitentiary. If I have to turn in my connection or his source of supply, I’ll do that, because the only people that go to the penitentiary are stupid people, and I’m not stupid, I’m smart.”

The defendant made the second inculpa-tory statement in the presence of Officer Stephen Koch, who testified that upon the defendant’s return to the Dumaine Street address after the discovery of the narcotics, Montegut stated to him words to the effect of “I didn’t want ya’ll to find my stuff. I have a snorting habit. That’s my stuff.”

The defendant assigns error to the trial court’s denial of his motion to suppress these two statements.

In order for a confession or incul-patory statement to be introduced at trial, the state must affirmatively show that it was voluntarily given and was not obtained through fear, duress, intimidation, menaces, threats, inducements or promises. State v. Eaker, 380 So.2d 19 (La.1980). The trial court’s conclusions as to the credibility of witnesses testifying as to voluntariness will not be disturbed unless unsupported by the evidence. State v. Cobbs, 350 So.2d 168 (La.1977); Eaker, supra. LA R.S. 15:451; C.Cr.P. article 703(B).

The transcript of the hearing on the motion to suppress the confession reflects ample evidence that the defendant’s statements were voluntarily made. ' Officers Koch, McNeil and Fascio testified at the hearing that the defendant was advised of his constitutional rights, that he appeared to understand his rights, that he was not threatened, abused, or otherwise intimidated in any way in order to secure a statement.

Defendant, however, claims that the involuntariness of his two statements can be inferred by the fact that “during the course of the search of his home, defendant-appellant had to be taken to the hospital because of injuries sustained,” implying that he made the statements as a result of coercion or abuse by police.

Officers McNeil and Fascio testified that when defendant began “throwing a tantrum” which continued for over ten minutes, he was simply handcuffed and removed from the house, and that he was neither struck, beaten, nor kicked, nor hurt in any way.

Moreover, the record reveals that defendant’s “injuries sustained” consisted of a bruised hip, for which the examining physician at Charity Hospital prescribed aspirin. We note also that the alleged injuries were complained of at the New Orleans Police Department Narcotics Office, after which defendant was examined at Charity, and it was sometime after the medical examination that he made the two statements in question.

As the trial court’s denial of the motion to suppress the confession is amply supported by the record, this assignment is without merit.

OPINION TESTIMONY

In his third assignment of error, defendant complains that the trial court erred in overruling an objection to the opinion testimony of Officer David Peralta with respect to the potency of heroin.

When Officer Peralta was called to the stand, the State attempted to qualify him as an expert in the illicit use and distribution of heroin. The trial court found Peral-ta to be such an expert, without objection. Peralta testified generally about heroin and heroin use, including the use of various adulterants and utensils. He also stated his opinion that heroin will lose its potency after being cut and stored over a period of time, as will most other drugs.

The defense objected to the admissibility of such opinion testimony, and contends that Peralta was not qualified as an expert in chemistry or potency of drugs, and that he was not, therefore, qualified to give opinion testimony on questions relating to these issues.

It has been established in the jurisprudence of this state that as long as an expert testifies about matters, the knowledge of which he has obtained through special training or experience, it is not necessary or relevant that the subject to be discussed is or is not embraced by a scientific discipline. State v. Carter, 347 So.2d 236 (La.1977). Because the officer’s experience included living among and associating with heroin addicts and users it is quite likely his knowledge encompasses facts relating to the potency of heroin.

Furthermore, we note that the logical implication from Officer Peralta’s testimony about the potency of heroin is that a user of heroin will not keep a large amount of it around the house, but that a dealer of heroin perhaps would, not being so concerned with the drug’s potency or propensity to lose potency while stored. We find that any such implication, however, is harmless on appeal because the defendant was convicted of possession only, not possession with intent to distribute.

We find this assignment of error to be without merit.

As all three assignments of error are without merit, we therefore affirm the defendant’s conviction.

AFFIRMED.

      . Gerald Searles was arrested on August 14, 1981, for possession of heroin and cocaine with the intent to distribute.

      . The recent U.S. Supreme Court case of Illinois v. Gates,-U.S.-, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), has replaced the Aguilar-Spinelli test for evaluating sufficiency of search warrant affidavits based on informants’ hearsay with a “totality of circumstances” test in which the informer’s reliability and credibility and the basis of his knowledge are considered as intertwined considerations that may illuminate the issue of probable cause, rather than as strictly separate requirements.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Edna Mae WILLIAMS v. George A. FISCHER, Secretary, Department of Health and Human Resources.
    No. 83 CA 0600.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 1983.

      Leo Berggreen, Baton Rouge, for plaintiff-appellee Edna Mae Williams.
    Sidney W. Hall, Baton Rouge, for defendant-appellant Roger P. Guissinger, Secretary, Dept. Health & Human Resources.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   ON MOTION TO DISMISS

COVINGTON, Judge.

On motion to dismiss filed by plaintiff-ap-pellee, Edna Mae Williams, this Court issued an order to defendant-appellant, George A. Fischer, Secretary, Department of Health and Human Resources (DHHR), to show cause why the brief filed by DHHR should not be stricken. The motion urged that the brief should be stricken as though not filed due to non-compliance with Uniform Rules-Courts of Appeal, Rule 2-12 in numerous respects:

(1) The cover sheet incorrectly identifies the defendant-appellant as the defendant-appellee in violation of Rule 2-12.3.

(2) The brief fails to contain a statement of the jurisdiction of the court in violation of Rule 2-12.4.

(3) The brief fails to contain a syllabus of law in violation of Rule 2-12.4.

Appellee further urges that since the brief was filed on the last day possible after an abandonment notice had been issued, the appeal should now be considered abandoned.

The sanction permitted to be imposed for a non-conforming brief is left to discretion of the Court. The Court may strike the brief and may order that another brief be filed. Uniform Rules-Courts of Appeal, Rule 2-12.13. Dismissal of the appeal is not one of the permitted sanctions. An appeal is not to be dismissed for a mere technicality. Moreover, any motion to dismiss must be viewed in the sanctified light of favorability of appeals. See LSA-C.C.P. arts. 2161, 5051; U.S. Fire Insurance Company v. Swann, 424 So.2d 240 (La.1982).

The brief filed by DHHR does not comply with the rules in the mentioned respects. However, we feel that striking the brief under the circumstances of the instant case and/or dismissal of the appeal would be an unreasonably harsh remedy imposed on a party in deprivation of its right to appeal. Whether sanctions should be imposed against the offending counsel is a matter which may be addressed by the panel which hears the appeal.

Hence, we decline to strike the brief or to dismiss the appeal. The appeal also will not be considered abandoned since the brief was filed within the time period allowed by Rule 2-8.6, albeit on the last day, and is, thus, in conformity with the Uniform Rules of the Courts of Appeal.

ORDER RECALLED AND MOTION TO DISMISS DENIED.


author: BARRY, Judge. WARD, Judge,

text:
    Carolyn PINKNEY, Individually and on behalf of her Deceased Husband, James Pinkney v. Alfred MILLER and New Orleans Public Service, Inc.
    No. CA-0598.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 1983.
    Writ Denied Jan. 16, 1984.
    Barry J. Sallinger, Kernan A. Hand, New Orleans, for plaintiff-appellee.
    C.B. Ogden, II, James Maher, III, New Orleans, for defendants-appellants.

      Before REDMANN, SCHOTT, BARRY, CIACCIO and WARD, JJ.
   BARRY, Judge.

Plaintiff’s husband was shot and killed by another passenger on a bus owned by the defendant, New Orleans Public Service, Inc. (NOPSI). The trial court found that, at the time the assailant boarded the bus, its driver had sufficient reason to .anticipate the criminal attack and failed to prevent it. NOPSI appeals urging that the wrong standard of care was applied to its alleged negligence.

This senseless incident is described in the trial court’s Reasons:

Plaintiff, Carolyn Pinkney, and her deceased husband, James Pinkney, boarded the New Orleans Public Service, Inc. South Claiborne bus on July 2, 1979, as fare-paying passengers. The Pinkneys had attended a concert earlier in the evening on one of the commercial riverboat cruises and were returning to their home. At the corner of South Claiborne Avenue and First Streets, a person later identified as Ernest Scott boarded the bus. Scott éntered the bus and walked to the back door, where he stood leaning against a handrail.
When the Pinkneys reached their destination at the service stop on the corner of Washington Avenue and South Claiborne, James Pinkney exited the rear door followed by his wife, Carolyn. At that point, Scott reached out, blocking the passage of Mrs. Pinkney. When James Pinkney turned and saw what was happening, he asked Scott, ‘What’s wrong with you?’ and told him, ‘Let my wife pass.’ Scott then approached Mrs. Pink-ney and grabbed her around her waist. James Pinkney reentered the bus and poked his umbrella at Scott. Scott then drew a handgun from a shoulder bag he was carrying and fired three shots, two of which struck James Pinkney, who died as a result of those injuries.

The crucial issue concerns the bus driver’s allowing Scott, the assailant, to board the bus and the driver’s ability and responsibility to foresee and prevent the assault. Our review concerns the trial court’s factual determination of NOPSI’s negligence and application of the appropriate standard of care as to NOPSI’s liability.

Plaintiff’s and defendants’ witnesses differed in their observations of Scott when he boarded the bus and his behayior thereafter. Plaintiff testified she and her husband were talking when they heard noise outside the bus while it was stopped at First Street to pick up passengers. Plaintiff said the noise sounded like people arguing, but she could not see how many people were outside at the stop and who was arguing. She did not notice how many people boarded the bus at First Street but did observe that Scott stumbled on a step and grabbed the handrail as he got on. She further recalled Scott did not pay his fare and he immediately walked to the rear of the bus and stood on the first step by the back door. Although plaintiff and her husband were sitting midway in the bus, Mrs. Pinkney observed that Scott’s “eyes were all bugged, and he was all raggy ... he was just out of it.” She guessed Scott “was under the influence of some drug, not just alcohol.”

Plaintiff testified Scott did not utter a word from the moment he boarded the bus until after the shooting. She said Scott did not make any threatening or obscene gestures and did not create any disturbance or problem until she tried to exit at Washington Avenue.

Earl Clark, a witness for plaintiff, testified he was at a party with Scott earlier in the evening and Scott was sniffing PCP, an illegal drug. Clark, who denied using drugs, said he’d had a few beers but others, including Scott, were “really bombed out” on PCP. Clark was not qualified as a drug expert but testified based on his “street qualification.”

Clark was at the bus stop on First Street and noticed Scott “talking loud to an old man” while waiting for the bus. Clark did not see Scott fighting or causing any trouble or threatening anyone at the stop. Contrary to Mrs. Pinkney’s testimony, Clark recalled Scott sat down in a front seat and talked out loud before going to stand on the rear step. Clark agreed with plaintiff that Scott stumbled on the front step, but did not state whether or not Scott paid his fare.

Noland Hudson, another person at the party earlier in the evening, also offered opinion testimony that Scott took PCP and said “Scott’s eyes were big ... he was wild.”

Dr. Garey, a psychiatrist and drug expert for plaintiff, stated in about 10% of PCP users, a toxic reaction causing bizarre behavior occurs. According to Dr. Garey, a person suffering such a reaction would probably exhibit three symptoms apparent to the lay observer: (1) a staggering gait; (2) “jerky movements very similar to a person heavily intoxicated with alcohol”; and (3) rolling or straining eyes. Dr. Garvey said people using PCP “appear as if they’re drunk.”

Adrian Pryor, the bus driver, contradicted Mrs. Pinkney’s allegation that Scott did not pay his fare. Pryor asserted that, although he did not look at Scott’s face or clothing as Scott got on the bus, he noted Scott paid his fare with a quarter and nickel. Pryor explained he did not observe Scott’s appearance, yet recalled the exact coinage deposited in the fare box, because his job is to make certain riders pay the fare. Pryor testified: “I don’t look at nobody. I look at the money or the transfers, and that’s it.” The Trial Judge found this statement “positively illogical” declaring, “For one to remember a particular trait or act performed by a certain individual, it is necessary to remember the individual who possessed the characteristic or performed the act. An observation of an act performed by a particular person cannot exist without some recollection of who that person was. The Court finds Mr. Pryor’s testimony as to Scott paying his fare upon entering the bus to be unbelievable.” While this Court is not persuaded that such selective attention and observation by a bus driver are incredible, plaintiff testified Scott did not pay his fare and we defer to the trial court’s evaluation.

Pryor insisted he habitually did not look at passengers’ faces and stated he did not see Scott’s face or observe his alleged drunken or drugged appearance. Neither plaintiff nor any of her witnesses could contradict Pryor’s account of what he actually observed or did not observe. However, the lower court disbelieved Pryor’s testimony because it found the driver could not have observed the fare payment without noticing the appearance of the person who paid. More important, the Trial Judge placed great stress on Pryor’s testimony that he had closed the bus door and was about to pull away from the stop at First Street when he heard a knock on the door. Pryor said: “It was the knock that really disturbed me” and caused him to reopen the door for Scott. The lower court seized on this statement and declared that: “It is not unreasonable to assume that when an event which startles an experienced driver occurs, it would at the very least spark his curiosity to look at the source of the disturbance. The Court finds it highly unlikely that Mr. Pryor did not look down the stairwell at the person whose knock ‘really disturbed’ him.” The trial court surmised: “Mr. Pryor undoubtedly allowed Scott to enter without paying because he wanted to avoid confrontation with a man in a drunken or drug induced state.”

The trial court also found Pryor’s testimony unreliable because the driver initially described his relationship with another passenger-witness, Phyllis Neveaux, as “just a talking friend,” when, in fact, the two had a sexual relationship and she allegedly had borne two of his children. The lower court similarly discounted Ms. Neveaux’s testimony which we find unilluminating because she didn’t notice Scott’s appearance or whether he paid his fare. Like all of the other witnesses, Ms. Neveaux testified Scott did not create a disturbance on the bus until Mrs. Pinkney attempted to disembark.

Eric Fobbs, a NOPSI supervisor, testified NOPSI’s policy is to allow inebriated persons to ride, as long as they are not threatening or creating a disturbance. Fobbs said NOPSI “can’t deny anyone a ride. A person, if he’s intoxicated, can still ride the bus as long as he keeps himself quiet, you know, maintains a normal act.” The bus driver said he does not try to determine if a prospective passenger who stumbles or staggers is drunk, handicapped, retarded, or on drugs. In line with NOPSI’s policy, Pryor said he allows anyone to ride who can board the bus and does not bother anyone. Pryor did say he called the dispatcher a few times when a rider was asleep, in a drunken stupor, or otherwise unable to get off the bus at the end of the line. In the two years he’d driven a bus, Pryor said he called the dispatcher about three times a year to put drunks off the bus, but had never before had a fight on his bus.

In his Reasons the Trial Judge responded:

“It is also clear that Mr. Pryor had neglected even the lowest standard of care. When asked on direct examination by Mr. Maher, attorney for New Orleans Public Service, Inc., if an individual staggers onto his bus in a drunken state and breathes in his face, would he evict him. [sic] Mr. Pryor responded that if he pays his fare he can ride. This policy violates not only any legal requirement imposed on common carriers, but common sense as well.”

We disagree that NOPSI’s policy on intoxicated passengers is sub-standard, nor are we aware of any legal requirement that NOPSI deny such persons the right (opportunity) to ride. To the contrary, a common sense approach is necessary. Alcohol and drugs in our society are obviously a prevalent social problem that should be resolved depending on the circumstances; however, common carriers which knowingly permit passengers to ride while “under the influence” are not ipso facto guilty of negligence.

Jimmy Martinez, a police crime analyst, testified there were seven major incidents and five minor incidents reported on the South Claiborne bus route in 1979. Robert Dumbourian, NOPSI’s scheduling manager, said there are about 4.8 million riders a year on the South Claiborne line and there is a demand for night service.

From this assortment of evidence the Trial Judge ruled:

The Court finds that on the morning [sic] of July 2, 1979, the driver of the New Orleans Public Service, Inc.’s bus, Adrian Pryor, had sufficient knowledge to anticipate that if Ernest Scott were allowed to enter the bus, injury to a passenger on the bus was a likely consequence. The Court is convinced that the duty owed by New Orleans Public Service, Inc. and its employee, Adrian Pryor, extended in this case to protect fare-paying passengers, James and Carolyn Pink-ney, from imminent danger.

To support the finding of NOPSI’s negligence, plaintiff argues the bus driver failed to exercise “reasonable care” in allowing the assailant to get on the bus. Accepting a 11 of plaintiff’s relevant evidence as true, the facts are:

Scott was talking loud before getting in the bus;
Scott knocked hard on the door to get in;
Scott stumbled while getting in;
Scott did not pay his fare;
Scott was in an obviously dazed condition.

Additionally, there is no question that Scott was not verbally or physically threatening, abusive, or disruptive while on the bus, and plaintiff said he never spoke a word to her or anyone else. There was no evidence or suggestion the driver knew or should have been aware Scott had a gun.

For years a common carrier has been saddled with the burden of exercising the “highest degree of care” and is liable for the slightest negligence. Gross v. Teche Lines, 207 La. 354, 21 So.2d 378 (1945). Additionally, if a fare-paying passenger was injured en route, the carrier bore the burden of exculpating' itself from fault. This concept applied to vehicular accidents involving the public carrier or injuries received in its operation.

This Court adopted the “highest care” standard to injuries inflicted on passengers by others. However, this line of jurisprudence has been expressly disapproved because of the lack of any connexity between transportation by public carriers and batteries upon passengers other than the location of the injuries. Rodriguez v. New Orleans Public Service, Inc. 400 So.2d 884 (La.1981).

Our present standard of care for injuries wreaked on passengers by third parties was explained in Rodriguez:

Merely because the defendant will not be held to the highest degree of care to prevent intentional batteries upon its passengers does not mean that the law will absolve it from liability any time a passenger is attacked. Since defendant is essentially operating a business that permits the public to enter its premises, it should be held to the same duty as a reasonable business establishment with respect to hazards not associated with the peculiar nature of carriage of passengers.
Owners of businesses who permit the public to enter their establishments have a duty to exercise reasonable care to protect those who do enter. (Citations omitted) This duty extends to keeping the premises safe from unreasonable risks of harm or warning persons of known dangers .... When the independent, intentional tortious or criminal acts of a third person constitute the unreasonable risk, this duty does not require the proprietor to risk physical injury or civil or criminal liability by physical intervention. Rather, the duty can be discharged by the summoning of those entrusted by law with the power of immediately maintaining the peace, the police, at the time the proprietor knows or should reasonably know of the third person’s intention and apparent ability to execute the intended acts. (Our emphasis) (Citations omitted)

Therefore, our test to determine NOPSI’s negligence is: whether its driver exercised reasonable care in allowing Scott on the bus; whether the driver knew or should have known of Scott’s intention to commit the battery; and whether the driver knew Scott had the ability to execute the intended act.

The fact that Scott was talking loud before getting in the bus and had to knock hard for the door to open is of no moment. Nor do we place great significance on his stumbling while getting in. It isn’t clear what the bus driver’s responsibility was if he knew Scott did not pay his fare, but that fact is not connected to the shooting.

Essentially, taking these four facts together, and coupled with Scott’s dazed condition, did the driver exercise “reasonable care” in allowing him to get on the bus? These facts, which comprise plaintiff’s cáse, must be considered with the other uncontested facts, namely, Scott outwardly presented no threat of harm, he was silent, and no one knew he had a gun.

Prom all of this evidence the Trial Judge said;

The law applicable to the duty incumbent upon common carriers of passengers is clearly set forth in Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1975). The Carter case reaffirmed the well established rule that common carriers are charged with the duty of exercising the highest (emphasis added) degree of care to their passengers and are liable for the slightest negligence causing injury to those passengers.

The Carter “highest” standard was expressly held inapplicable to criminal attacks by third parties on public buses, Rod riguez, supra, and the lower court erred in its application here.

Further, under Rodriguez the defendant (NOPSI) and its driver did not have the burden of exculpating themselves from negligence; rather, it is incumbent on this plaintiff to prove defendant breached a legal duty to protect her and her husband from the risk of a criminal attack.

Even assuming, arguendo, that the driver violated NOPSI policy by allowing Scott to ride without paying his fare, there is no “ease of association” between the driver’s failure to enforce the fare payment and Scott’s subsequent attack.

Likewise, assuming the driver was fully aware of Scott’s dazed condition (alcohol or drug-induced), the driver’s action in allowing the then docile Scott to board the bus is not easily associated with the risk that he would become violent or have a concealed weapon and eventually shoot a passenger. A person’s dazed condition certainly doesn’t project the possibility or foreseeability of a criminal act.

Scott got on the bus at First Street and Mr. and Mrs. Pinkney attempted to get off at Washington Avenue — only four blocks later. During this extremely short distance, Scott got on the bus and walked to the rear. Mr. and Mrs. Pinkney got out of their seats and walked to the rear exit door. Without any notice or indication to the bus driver of his intentions, Scott interfered with Mrs. Pinkney’s attempt to leave the bus, Mr. Pinkney struck Scott with an umbrella, and Scott shot Pinkney. Accepting all of this as uncontroverted and in the light only favorable to plaintiff, we find it impossible to conclude that the bus driver failed to exercise reasonable care simply by allowing Scott to enter the bus. There was no way for the driver to foresee that Scott would commit a homicide moments after he got on the bus. The driver did not know or should not have known of Scott’s intent to harass Mrs. Pinkney or harm Mr. Pinkney (Scott never knew either one). The driver did not know Scott had the ability (a gun) to execute the intended act. Rodriquez clearly exonerates NOPSI from liability.

The district court judgment is reversed; judgment is entered in favor of defendants/appellants at plaintiff’s costs.

REVERSED AND RENDERED.

WARD, J., dissents with written reasons.

WARD, Judge,

dissenting.

I believe that the judgment of the Trial Judge should be affirmed because, as he stated in his reasons for judgment, the conduct of the NOPSI driver breached his duty to passengers that were present in the bus. The relevant findings by the Trial Judge which are noted in the majority opinion conclude:

It is also clear that Mr. Pryor had neglected even the lowest standard of care .... [he] had sufficient knowledge to anticipate that if Earnest Scott were allowed to enter the bus, injury to a passenger on the bus was a likely consequence.

I agree with the majority that the crucial issue in this case is whether the NOPSI driver breached his duty or violated a standard of care when he allowed Scott to board the bus. I believe that he did because, by his own testimony, the driver admitted he paid no attention to the appearance or conduct of Scott. He testified: “I look at no one ... all I do is pick up and take fares; my job is to pick up and transfer people; I look at nobody. I look at the money or the transfers.... ”

Relying on the testimony presented at trial, the majority describes what Adrian Pryor would have observed as to Scott’s conduct:

1) Loud talking;
2) Hard knocking on the door;
3) Stumbling;
4) Refusing to pay;
5) Dazed [intoxicated] appearance.

Applying Rodriguez to these facts, the majority concludes that NOPSI and its driver should not be held liable for the intentional tortious act of Scott which admittedly caused the injury.

I believe that we can and should distinguish the Rodriguez case.

In Rodriguez, the tortfeasors had entered the bus without incident, and there was no indication whatsoever that those passengers would harm other passengers. In that case, the bus driver did not breach a duty to exclude as passengers persons who were potentially dangerous, and I agree with the conclusion of Rodriguez: the NOPSI driver is not required to intervene where “tortious or criminal acts” have erupted and the driver can discharge his duty by summoning the police at the time the driver knows of a “third person’s intention and apparent ability to execute the intended acts.” For injuries not arising from vehicular collisions, the Supreme Court in Rodriguez rejected the public carrier’s “highest standard of care” and adopted the duty of “a reasonable business establishment.” The Supreme Court in Rodriguez goes further, however:

Merely because the defendant will not be held to the highest degree of care to prevent intentional batteries upon its passengers does not mean that the law will absolve it from liability any time a passenger is attacked. Since defendant is essentially operating a business that permits the public to enter its premises, it should be held to the same duty as a reasonable business establishment with respect to hazards not associated with the peculiar nature of carriage of passengers.
Owners of businesses who permit the public to enter their establishments have a duty to exercise reasonable care to protect those who do enter, (citations omitted) This duty extends to keeping the premises safe from unreasonable risks of harm .... (citations omitted) (emphasis added)

I believe that the duty of reasonable care includes the duty to observe the conduct and demeanor of those who seek to enter the bus and to protect the patrons who are already in the bus, particularly where, as in a bus, the passengers have limited egress and minimal space to protect themselves. That duty of reasonable care includes the duty to deny admittance to the premises of patrons who are already violating the criminal statutes by public drunkenness.

The Rodriguez court noted the need for a public carrier to accept a wide range of behavior in the riding public and stated that “[t]he tolerance of a set level of decorum not involving criminality (emphasis added) ... is a business choice”. I believe that passengers exhibiting public drunkenness, a criminal offense, need not be tolerated. I believe that the Supreme Court in Rodriguez dictates a different result from the result reached by this Court in Orr where the offending youths were “apparently drunk” when they entered the bus. I believe that Orr should be overruled.

While the duty of public transportation is to provide service to the riding public, that duty also must incorporate a protection of its passengers from erratic, volatile conduct of would-be riders who are already noticeably intoxicated. That duty does not extend to provide transportation to drunks.

Furthermore, the Trial Judge made a finding of fact: the conduct and demeanor of Scott should have notified a driver exercising reasonable care that Scott was publicly intoxicated, a criminal act, and likely to harm the passengers already aboard the bus; NOPSI’s driver Pryor did not exercise reasonable care when he allowed an obviously intoxicated person to board the bus. The record does not show that the Trial Judge’s finding of fact was manifestly erroneous.

I further disagree that there is no ease of association between the conduct of the driver and the harm to Pinkney. While the exact nature of the injury could not be reasonably foreseen, some injury through an intentional tort was foreseeable. Although the shooting death of Pinkney reaches the farthest risk of harm, Pryor’s failure to exercise reasonable care in keeping the bus premises safe from harm breached a duty that could easily be associated with the death of Pinkney. Like the other findings of fact, that conclusion by the Trial Judge is not manifestly wrong.

As the Trial Judge noted, the NOPSI open-door policy that allows drunks to ride “except when threatening” may be due for a re-examination since it arguably conflicts with a duty to provide reasonably safe public transportation. More particularly, it conflicts with a duty to exclude those who are violating City Ordinances that prohibit persons from being drunk in public.

      . Scott was killed by the police shortly thereafter.

      . The record does not have a blood analysis or autopsy report on Scott.

      . Aime v. Hebert, 282 So.2d 566 (La/App. 4th Cir.1973); Orr v. New Orleans Public Service, Inc., 349 So.2d 417, 418 (La.App. 4th Cir.1977); Imig v. New Orleans Public Service, Inc., 391 So.2d 72 (La.App. 4th Cir.1980) and Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 917 (La.App. 4th Cir.), Reversed 400 So.2d 884 (La.1981)

      . Carter involved injuries sustained when the bus driver allegedly slammed on his brakes due . to a sudden emergency.


author: SHORTESS, Judge.

text:
    Walter HARRIS v. Louella Ross JACKSON, et al. Walter HARRIS v. Louella Ross JACKSON, et al.
    Nos. 83 CM 0656, 83 CA 0853.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 1983.
    Rehearing Denied Dec. 7, 1983.
    Drake, Beckler, Drake & Donnell by Ernest G. Drake, Jr., Theresa Beckler, Poncha-toula, for plaintiff-appellee Walter Harris.
    E. Wade Shows, Baton Rouge, for defendant-appellants Louella Ross Jackson and Olivia Jackson Jones.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Walter Harris (appellee) filed a motion to dismiss the unlodged appeal of Louella Ross Jackson and Olivia Jackson Jones (appellants) on the grounds that it was not timely perfected. The trial court rendered a decision after trial on September 8, 1982, but judgment was not signed until September 24, 1982. At that time, Alfred W. Spiller, Jr., was counsel of record for appellants, and he was mailed a copy of the judgment. Soon thereafter, appellants retained E. Wade Shows to represent them. On October 1,1982, Shows enrolled as counsel of record for appellants and filed a motion for new trial. Notice of the date fixed for hearing was sent by the clerk of court to Shows. A hearing was held on October 29, 1982, and the trial court took the motion under advisement. Neither party made a written request for notice of the decision. On November 17, the trial judge signed an order dismissing the motion. This order was filed in the suit record on November 18, 1982. On the same date, the clerk of court mailed a copy of that order to Alfred W. Spiller, Jr., Ernest G. Drake, Jr., and Thomas B. Waterman. Shows was not included in the mailing. A minute entry was not made showing that the new trial was denied. On January 19, 1983, Shows submitted a memorandum in support of his previously argued motion for new trial. On January 24,1983, the Clerk of Court mailed Shows a copy of the order denying the new trial. On February 1, 1983, a motion for suspensive appeal was filed by Shows, which was signed on February 7, 1983. Whereupon, appellee filed this motion to dismiss.

The provisions of La.C.C.P. art. 1914 require the clerk of court to make an entry in the minutes to show the rendering of an interlocutory order or judgment when the case has been taken under advisement. This article also requires a written request for notice of rendition of the interlocutory order or judgment. The official revision comments explaining this article indicate that the requirement of a minute entry of the rendition “affords counsel a ready opportunity of checking on the matter.” This device is therefore available to those who do not request written notice of the order. Here, no minute entry was made, but a written order was signed by the judge and placed in the record, indicating that the motion for new trial had been denied. We find that this written order, placed of record, satisfied the minute entry requirement.

The delays for appeal commenced on the date that the trial judge denied the motion for new trial, because no one had made a written request for notice of the rendition. Assuming that Shows had exclusively undertaken appellants’ case to Spiller’s exclusion makes no difference, because neither was legally entitled to Article 1914 notice.

Appellants have established that it was the custom of the Twenty-First Judicial District Court to notify the attorney who filed a motion for new trial of the court’s ruling thereon. Shows filed the motion, and appellants argued that notice should have been mailed to him rather than to Spiller. Notwithstanding the custom of the Twenty-First Judicial District Court, the express provisions of our statutory law must govern. La.C.C.P. art. 1914 is very explicit and provides that notice of the rendition of an interlocutory order need only be given to counsel making a written request therefor. A request was not made, either by Spiller or Shows, and neither was entitled to receive same.

This appeal must be dismissed, at appellants’ costs.

APPEAL DISMISSED.

      . Appellee’s original motion to dismiss was given No. 83CM0656. At the time this motion was filed, the appeal had not been lodged. After it was lodged, this court, ex proprio motu, issued a show cause order to appellee, and it was given No. 83CA0853. The two motions have been consolidated. Both involve the same issue.

      . Spiller did not formally withdraw as counsel. The order permitting Shows to enroll as counsel for Jackson and Jones is silent as to Spiller and his future status in the case.

      . We have been cited Marr v. St. Paul Fire & Marine Ins. Co., 392 So.2d 1091 (La.App. 3rd Cir.1980), by appellee and Cox v. Southern Colonial Inv., Inc., 393 So.2d 146 (La.App. 1st Cir.1980), by appellants. They are inapposite since actual notice was received by counsel in both cases. Here Spiller was mailed notice of the rendition of the order dismissing the motion for new trial. These cases are instructive, however, as to La.C.C.P. art. 1914 and its minute entry requirement.

      . Act 61 of the 1983 Regular Session amended La.C.C.P. art. 1914, and it has become effective. It provides that the clerk of court shall mail notice of the rendition of an interlocutory order or judgment to counsel in all cases taken under advisement, eliminating the requirement that a party must make a written request for notice. Unfortunately for appellant, we may not give Act 61 retroactive effect. This appeal was not timely filed, so appellee became vested with an absolute right to have it dismissed. See Townsend v. Graham, 124 So.2d 405 (La.App. 3rd Cir.1960). Even remedial or procedural legislation does not apply retroactively to terminated litigation. See Belanger v. Great American Indemnity Co. of New York, 188 F.2d 196 (5th Cir.1951).


author: EDWARDS, Judge.

text:
    James D. MACK v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY and Peggy Perkins.
    No. 83-CW-0693.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 30, 1983.
    Writ Denied Nov. 28, 1983.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant.
    Charles M. Hughes, Bogalusa, for defendants-appellees.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff was involved in two vehicular accidents, one on May 9,1981, and the other on February 16, 1982. Although plaintiff’s accidents involved different opposing drivers, both were insured by Southern Farm Bureau Casualty Insurance Company.

Plaintiff first sued on the May 9 accident, naming J.T. Howell, Monroe Nelson, Frank Seldens, Jr., State Farm Mutual Automobile Insurance Company and Southern Farm as defendants. A pretrial order was prepared in which Southern Farm alleged that any injuries plaintiff received were sustained in accidents prior and subsequent to the May 9 accident. After trial, judgment was rendered in favor of defendants and plaintiff’s demands were rejected.

Subsequently, plaintiff filed suit against Southern Farm and Peggy Perkins, the driver in the second accident, for injuries allegedly caused by the February 16 accident. In response, defendants filed an answer in which they allege that plaintiff’s injuries were caused by the earlier May 9 accident. Plaintiff, contending that this allegation was insufficient and scandalous in light of Southern Farm’s representations in the earlier suit, filed a motion to strike the paragraph from defendants’ answer. The trial court granted plaintiff’s motion, from which defendants, sought supervisory writs from this court. We granted alternative writs, which the plaintiff and trial judge opposed, prompting this opinion.

In his reasons for judgment, the trial judge stated that he felt it was improper for Southern Farm to defend the May 9 suit by alleging that plaintiff’s injuries were due to the February 16 accident, and then subsequently defend the February 16 suit by contending that plaintiff’s injuries were incurred in the May 9 accident.

However, motions to strike are not favored in the law and should not be granted unless clearly warranted. Brown v. Joiner International, Inc., 523 F.Supp. 333 (D.C.S.D.Ga.1981); Smith v. Gautreau, 348 So.2d 720 (La.App. 1st Cir.1977). It must be noted that had plaintiff sued all of the defendants in one suit rather than two, Southern Farm would have been allowed to plead alternative defenses, even though their factual bases may be inconsistent. La.C.C.P. art. 1006. To prevent Southern Farm from pleading the same defenses simply because plaintiff chose to file two suits would be inequitable, especially here where different counsel represented Southern Farm in both suits and Perkins was not a party defendant in the first suit.

Accordingly, we therefore order that the alternative writ previously issued be made peremptory, and the trial judge is ordered to recall and vacate his order of May 10, 1983, granting plaintiff’s motion to strike.

WRIT MADE PEREMPTORY.


author: REDMANN, Chief Judge.

text:
    Larry SCHLINK et al. v. TENNECO OIL COMPANY et al.
    No. CA-0698.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    V. Charles Cusimano, Chalmette, for plaintiff s-appellees.
    Peter C. Matherne, Walker & Bordelon, New Orleans, for Tenneco Oil Co.
    Before REDMANN, C.J., and SCHOTT and CIACCIO, JJ.
   REDMANN, Chief Judge.

Does providing employee parking space while prohibiting employee parking elsewhere on the employer’s premises make an employer the depositary of the employees’ automobiles?

Answering no, we reverse a judgment in favor of plaintiff employees for their stipulated $250 loss from battery and stereo thefts.

Plaintiffs argue:

“The facts establish that the employees were not required to drive to work nor were they required to use their automobile at work. Likewise, they were not told that they could not bring their vehicles to work. In addition, they were ordered, if and when you bring your automobile to work you must park your car in the lot across the levee. The employees were not allowed to park their cars any where else in or around the plant. This directive is clearly an express consent on behalf of Tenneco Oil Company to the depositary relationship.
“... The stipulated facts establish that the employees sent these vehicles into the possession of Tenneco. The property upon which the automobiles were parked is owned by Tenneco. Tenneco, with full knowledge that the automobile had been parked on its premises and in fact with an order from Tenneco to park the vehicles there, did not refuse to receive them. Therefore, ... there can be no doubt that implied consent under Article 2933 of the Civil Code is present.”

Plaintiffs’ argument is that obliging the employees to park in a specific lot on the employer’s premises is comparable to obliging an employee to furnish his own tools and to leave them overnight on the employer’s premises. The latter circumstances were held to constitute the employer a depositary in Harper v. Brown & Root, Inc., 391 So.2d 1170 (La.1980).

The essential elements of delivery to and acceptance by the employer were present in Harper because “the employee as a practical matter was virtually required [by the employer] to leave his tools at the construction site [overnight] and cannot reasonably be viewed as having done so for his own convenience as a matter of choice.” 391 So.2d at 1173.

When an employee delivers his tools to his employer at the end of the day and leaves them in the exclusive possession of the employer, as a virtual requirement of the employment, the employer who has required that delivery to itself has certainly consented to it. But that reasoning of Harper is only applicable in a very limited sense to our case, because our employer never required the delivery of plaintiffs’ automobiles to it: what our employer required was that the employees not deliver an automobile onto that part of the employer’s premises where the employees worked. The only application we can see of the Harper principle is that an order to employees to park in one location rather than others implies consent to their parking at the assigned location. But because our employer did not oblige the employees to deliver their automobiles to the employer’s custody, the Harper principle does not support a conclusion that the employer consented to delivery of the automobiles to itself as a depositary.

Reversed.


text:
    STATE of Louisiana v. Whitney VINCENT, Jr.
    No. KA-0437.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for the State.
    William Noland, Lawrence J. Boasso, New Orleans, for defendant.
    Before REDMANN, C.J., and SCHOTT and CIACCIO, JJ.
   REDMANN, Chief Judge.

On appeal from his conviction of possession of marijuana and of phencyclidine, both with intent to distribute, and possession of a firearm by a felon, defendant argues error in the denial of his motion to suppress and in his sentence both as excessive and as not preceded by advice from the judge as required by La.R.S. 15:529.1(D). We affirm the conviction but remand for resentencing after the statutorily required advice.

The marijuana, phencyclidine and firearms were seized under a search warrant that defendant argues was issued on an affidavit insufficient to establish probable cause.

The affidavit, by a New Orleans detective, recited that, on the day of the affidavit, he and another detective were informed by a confidential reliable informant, whose information had led to narcotics convictions in the past, that: a white male known to him as Buddy was selling PCP for $125 a gram and marijuana for $425 a pound from his residence at 4700 Banks street; the informant “had been their [sic; there] earlier” and saw the drugs inside and witnessed a sale of a gram of PCP; that sales are not made through the front door, “but to purchase said drugs, you walk down the driveway on the right side of the house and knock on the rear wall . . . and ‘Buddy’ will come out and find out what you need ... then collect the money, go back inside the residence and bring back the drugs.” The affidavit then recited surveillance of the residence by the officers between 7 and 8:30 a.m. and observance of two apparent purchases, at 7:20 and 8:15 a.m., described in detail consistent with the information supplied by the informant. Ours is thus not an affidavit based entirely on hearsay.

Our “totality of circumstances,” Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), answers yes to “the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.”

Defendant contends that our affidavit is defective for failure to recite the method by which the detectives received the information, arguing that this failure prevented the magistrate from concluding that the detectives knew who the informant was. Defendant further contends defectiveness in the recital that the informant saw drugs and a sale at the residence “earlier,” arguing that the indefinitness of “earlier” precludes a conclusion that the information was not “so attenuated with the passage of time as to render those supporting facts non-existent,” State v. Thompson, 354 So.2d 513, (La.1978). We reject both of these arguments because the overall context of the affidavit includes the affirmative representation that the detective knew who the informant was, and, by reciting that Buddy “was selling” (see State v. Boudreaux, 304 So.2d 343 (La.1974)) drugs, suggests that “earlier” means earlier “on May 8, 1981” or perhaps during the previous night (for by 7 a.m. on May 8 the detectives’ surveillance had begun).

Defendant also argues that the affidavit’s failure to recite that defendant twice left the residence during the surveillance constitutes intentional and material misrepresentation (by omission) invalidating the warrant. We agree that the state’s failure to rebut defense witnesses’ testimony of defendant’s twice leaving gives that testimony added credibility (although the trial judge so disbelieved defense witnesses — the mother and brother of another person also arrested when defendant was arrested — that he asked the assistant district attorney at trial’s end if he wished to detain them to charge them with perjury). But the time estimates of absences recited by those witnesses do not necessarily conflict with the affidavit’s times of transactions; and those absences are immaterial. It is not necessary that an affidavit recite every thing seen during surveillance, but only what is required to support the conclusion of probable cause.

As to the sentence, defendant first argues that the sentence was excessive, and not given in compliance with C.Cr.P. 894.1. The trial judge’s position is fairly set forth by his recital that defendant was a former policeman and a second offender. Moreover, the list of items seized includes two “large” plastic bags of “greenish vegetable matter” and a plastic bag of “white powder” (presumably the marijuana and PCP in respect to which defendant pleaded guilty), a 16-ga. double-barreled shotgun with no serial number, a 12-ga. shotgun and a 30-cal. carbine with sawed-off stock and a 30-round clip (besides two large sheathed knives, a bayonet, two pairs of “num-chucks,” a billy and a mask). On those facts, a 15-year sentence to a second offender is not severe, and their presence in the record supplies any theoretically missing explanation under C.Cr.P. 894.1.

Finally, notwithstanding that he was represented by counsel who declared to the trial judge in defendant’s presence that they had “consulted” and “advised” defendant for purposes of arraignment on the multiple billing, and that he had no defense, and notwithstanding that defendant thereupon freely admitted to the judge that he was the same person previously convicted, defendant now argues that the trial judge did not comply with the mandatory language of La.R.S. 15:529.1(D):

“... the court in which the subsequent conviction was had shall cause the person ... to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true.... If ... he confesses in open court, after being duly cautioned as to his right, the court shall sentence. ... ” (Emphasis added.)

The only defect is that the record does not show that the court did advise defendant of his right to be tried according to law, but shows that it accepted his confession without the judge himself having duly cautioned him of his rights: no doubt because of counsel’s declaring to the court that counsel had consulted with and advised defendant. No doubt too, competent counsel would advise a defendant of his rights to trial, not to incriminate himself, and to confront his accusers. Therefore, in the absence of an allegation of incompetence of counsel, one might presume that “the court,” through defendant’s attorneys as officers of the court, had indeed properly advised defendant. But defendant’s argument is that no such presumption will suffice, and that the record must affirmatively show that defendant was informed of his rights.

We conclude from State v. Yochunas, 187 La. 281, 174 So. 356 (1937) [overruled on another point in State v. Hilaire, 216 La. 972, 45 So.2d 360 (1950) ] (although defendant there was not represented by counsel), and from State v. Martin, 427 So.2d 1182 (La.1983), that defendant is correct.

Martin did not rest upon the facts that (as in our case) “defendant was represented by counsel and freely admitted, upon inquiry by the judge, that he was the same” person previously convicted; Martin immediately added:

“Furthermore, ... the judge, prior to defendant’s in-court admission, advised defendant of his right to a ‘formal hearing’ and of his right to require the state to prove the issue of identity.” Id. at 1184.

A ruling that the judge must personally advise the defendant of his right (or perhaps that the record must at least affirmatively show, by counsel’s specific recital of the rights in open court in the presence of defendant, that “the court” through counsel has advised defendant of his rights) is required not only by La.R.S. 15:529.1(D) but probably also by the requirement of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), that a guilty plea not be accepted without an affirmative showing in the record of an intelligent and voluntary waiver of the constitutional rights thereby yielded.

We therefore remand for retrial on the question of the prior conviction, State v. Johnson, 432 So.2d 815 (La.1983).

Conviction affirmed; sentence vacated and remanded for sentencing proceedings consistent with this opinion.


author: GULOTTA, Judge.

text:
    Brenda LACOUR v. Harold Joseph THEARD.
    No. CA-0682.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9, 1983.

      Martin E. Regan, Jr., New Orleans, for appellant.
    Walter J. Wilkerson, New Orleans, for appellee.
    Before GULOTTA, WARD and BYRNES, JJ.
   GULOTTA, Judge.

In this suit for ownership and division of property accumulated between parties living in concubinage, defendant Harold Joseph Theard appeals from a judgment recognizing Brenda Lacour’s entitlement to one-half the value of the home where they formerly resided together. We reverse.

In 1969, Lacour and Theard, who never legally married each other, began living together as man and wife with their eight year old son and four year old daughter in a home rented by Lacour. In 1971, Lacour, Theard and their children moved to the house purchased in Theard’s name only, and continued to co-habitate in this house until November, 1981. This property is the subject of this litigation.

Lacour’s petition averred that “the parties agreed to discharge the traditional family obligations through their mutual effort ... ”, that “the family home, though purchased in the name of defendant, was purchased with joint funds ... ”, that “various family obligations have always been recorded in the name of plaintiff ... ”, and that “as a result of plaintiff’s and defendant’s agreement, plaintiff is entitled to one-half of the property accumulated by the parties.” Alternatively, plaintiff claimed that she was “entitled to one-half of the accumulated property on the basis of equity.”

The house at issue was purchased with a Veteran’s Administration (VA) loan solely in Theard’s name and based on his eligibility. No down payment was necessary. According to Theard, he made the final decision to buy the house and paid approximately $300.00 in closing costs. He further testified that Lacour had never attempted to put her name on the title, and it was understood that Lacour could live rent free in the house if she wished.

On the other hand, Lacour testified they had decided to buy the house together, and that each party contributed one-half of the closing costs from their mutual savings.

It was stipulated that there was no written partnership agreement. No joint business venture independent of the concubinage was established. Both parties testified that Lacour never attempted to take responsibility for paying the house loan and that Theard paid the monthly mortgage note, house upkeep, groceries, and automobile note and insurance from his separate checking account. Lacour paid the children’s tuition, and the gas, electric and telephone bills from her separate cheeking account. The gas and electric bills were in his name, and the water and telephone were in hers. According to Theard, his monthly share of the bills, not including the house note, was greater than Lacour’s.

Both parties were gainfully employed and each maintained separate charge accounts paid from separate checking accounts. The couple maintained a joint savings account.

In his oral reasons for judgment, the trial judge stated:

“I think that the equitable requirement in this case are such that because of the unusual arrangement from 1969 to 1981 and in view of the fact that two children were born of this arrangement and both of them were acknowledged by the defendant ... an equitable solution to the purchase of the house . .. would be that had Mr. Theard been required to pay child support as would have been required in ordinary circumstances had an ordinary arrangement existed that money could have been given to the wife and that in effect would have offset or come pretty close to offsetting what would have been the community. So the Court is of the opinion because of equities involved that the purchase of the house ... in 1971 was a mutual purchase by them both since it could only be purchased through him through the Veterans Administration ... And I think it was anticipated and the intent for equity to prevail in that making the purchase there was an intent to buy the house jointly ... it belongs one-half each.”

In the absence of evidence of a title in the names of both parties or a contribution by Lacour towards the purchase of the house (and no such evidence was offered), we hold the trial judge erred by ruling that equity justified granting Lacour one-half of the house’s value.

It is well settled that where the initial motive for a man and woman to live together is concubinage, neither party is entitled to recover assets of the joint entity under any theory of partnership. See Sparrow v. Sparrow, 231 La. 966, 93 So.2d 232 (1957). An exception to this general prohibition, however, is that a concubine is not prevented from co-ownership if the acquisition is a part of a business venture independent of the concubinage based on equitable grounds. See Sparrow v. Sparrow, supra, Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196 (1947); Delamour v. Roger, 7 La.Ann. 152 (1852); Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911 (1928).

In Succession of Washington, 140 So.2d 906 (La.App. 4th Cir.1962), this court held that the concubine’s introduction of a deed naming her as co-vendee created a rebuttable presumption that the concubine was an owner of an undivided one-half interest in the subject property. This rebut-table presumption was used in Chambers v. Crawford, 150 So.2d 61 (La.App. 2nd Cir.1963).

Further, in Broadway v. Broadway, 417 So.2d 1272 (La.App. 1st Cir.1982), writ denied 422 So.2d 162 (La.1982), our brothers stated the equitable rule that a concubine can be declared a one-half owner of the property if she can furnish strict and conclusive proof that her capital and industry, independent of the concubinage, contributed a full share to the acquisition of the property.

In the instant case, unlike Succession of Washington, supra, and Broadway v. Broadway, supra, no deed or title listing Lacour as co-vendee or joint purchaser was introduced into evidence. Evidence as to Lac-our’s contribution to the closing costs was conflicting. Furthermore, neither party testified that the plaintiff ever attempted to list her name on the loan or title, or contributed towards the loan payments. In the absence of evidence that Lacour contributed a share to the acquisition of the house, she is not entitled to half the value of the house on the grounds of equity.

We find no merit to Lacour’s contention that the parties entered into a contract concerning the home that was either express, implied in fact, or implied in law. Although the record establishes the parties had a financial arrangement whereby Theard paid the loan, house maintenance, automobile expenses and groceries, and Lacour paid the utilities and children’s tuition, we cannot conclude this arrangement supports a conclusion of ownership in both parties.

Accordingly, the judgment of the trial judge is reversed and set aside. Plaintiff’s suit is dismissed at her costs.

REVERSED AND SET ASIDE.

      . In 1969, with Lacour’s knowledge, Theard was legally married to Lacour’s sister until he obtained a divorce in 1981.


text:
    STATE of Louisiana v. Wilson ACEVEDO.
    No. KA-0673.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Dwight Doskey, Paul Weidenfeld, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara A. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for appellee.
    Before GULOTTA, WARD and BYRNES, JJ.
   GULOTTA, Judge.

Defendant appeals his conviction and sentence to life imprisonment with credit for time served without benefit of parole, probation or suspension of sentence for aggravated kidnapping, LSA-R.S. 14:44. In his sole assignment of error, defendant requests this court to review the record for errors patent and to reverse his conviction and order a new trial.

Having examined the documents in the record, we find no errors patent. Upon review of the 92 page transcript of the jury trial, in accordance with State v. Raymo, 419 So.2d 858 (La.1982), we conclude there was sufficient evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.'


text:
    WALSH FILTER COMPANY, INC. v. Atwood L. RICE Jr., United States Fidelity and Guaranty Company and Aetna Casualty and Surety Company.
    No. CA-0703.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Badeaux, Discon, Cumberland & Shear-man, Robert F. Shearman, New Orleans, for appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, James P. Farwell, New Orleans, for appel-lee.
    Before GULOTTA, BYRNES and WARD, JJ.
   GULOTTA, Judge.

Plaintiff-lessee, Walsh Filter Company, Inc. (Walsh), appeals the dismissal, on exceptions of no right and no cause of action, of its suit against its lessor and the lessor’s insurer, alleging property damage, loss of inventory and loss of earnings. We reverse and remand.

Walsh alleges losses from a severe windstorm of April 13, 1980, when the “... structurally and improperly maintained and repaired ...” roof of the leased building was destroyed.

The basis of the exceptions is an exculpatory clause in the lease relieving the lessor from responsibility for damages. That paragraph reads as follows:

“Lessee assumes responsibility for the condition of the premises and Lessor will not be responsible for damage caused by leaks in the roof, by bursting of pipes by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby. Should Lessee fail to promptly so notify Lessor, in writing of any such defects, Lessee will become responsible for any damage resulting to Lessor or other parties.”

In an amended petition filed in response to defendant’s exceptions, plaintiff alleged:

“That, alternatively, the said building above mentioned, owned and maintained by Defendant herein, Atwood L. Rice, Jr., contained vices and/or defects which said Defendant knew or should have known and which constituted positive neglect and the failure of said Defendant to take action toward the remedying of such defects resulted in the damages being sustained by Plaintiff herein.”

According to defendants, the amended petition is “eonclusory” and contains “no fact pleadings” to support a cause of action. Citing Lott v. Haley, 370 So.2d 521 (La.1979), defendants specifically claim that the allegation that the lessor “knew or should have known” of the vices and defects does not meet the test of fact pleading required under our law.

Finally defendants cite Davis v. Copeland Enterprises, Inc., 390 So.2d 891 (La.1980), and Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La.1981), where the Supreme Court has recognized the validity of lease exculpatory clauses in which the lessor is relieved of responsibility for any damages, except in the case of positive neglect or failure to remedy the defects within a reasonable time “after having received written notice from lessee” of the defects.

Although we have no quarrel with the cited cases, defendants’ reliance on those cases is misdirected.

Plaintiff’s petition, as amended, specifically alleges the structurally and improperly maintained and repaired building contained vices and defects that were known or should have been known by defendants and that constituted “positive neglect.” When the original and amended petitions are read together, we are led to conclude that the allegations are not merely conclusory, but rather serve as a sufficient factual foundation upon which to plead a cause of action.

Further, LSA-R.S. 9:3221 provides:

“The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”

In Davis v. Copeland Enterprises, Inc., supra, the Louisiana Supreme Court concluded that an exculpatory clause similar to the one in the instant case “effectively releases” the lessor from liability for injuries to a lessee from defects in the premises, “unless” the lessor “knew or should have known” of the defect. In the later Tassin case, supra, the Supreme Court again recognized the validity of an exculpatory clause in a lease, but also held that the lessor is not exonerated from liability where he knew or should have known of the defects.

When we consider the holdings in Davis and Tassin, together with the allegations of the amended petition, we conclude that plaintiff has stated a cause of action. Having so concluded, we reverse the judgment of the trial court. The exceptions of no cause and no right of action are overruled, and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . See also LSA-C.C. Art. 2695 which provides:
      “The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”


text:
    Raynell ROLLINGS v. WINN DIXIE LOUISIANA, INC.
    No. CA-0730.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.

      Dan R. Dorsey, River Ridge, for appellant.
    Louis A. Gerdes, Jr., New Orleans, for appellee.
    Before GULOTTA, BYRNES and WARD, JJ.
   GULOTTA, Judge.

In this supermarket slip and fall comparative negligence case, defendant Winn Dixie Louisiana, Inc. (Winn Dixie), appeals from a $180,000.00 jury verdict in favor of plaintiff.

Winn-Dixie’s contentions on appeal are threefold: 1) that the jury erred in finding liability; 2) that plaintiff failed to prove medical causation between the fall and his alleged head and back injuries; and 3) that the verdict is excessive. We disagree. Accordingly, we affirm.

LIABILITY

The accident occurred on the afternoon of Friday, February 13,1981, in the Winn Dixie store on St. Bernard and Galvez Avenues in New Orleans. Plaintiff, Raynell Rollings, testified he had slipped and fallen backward on an “egglike” substance as he was pushing his basket through a check-out aisle.

Winn Dixie claims that there was no credible evidence of a foreign substance on the floor causing plaintiff to slip and fall. Alternatively, it argues that it exercised reasonable care to provide clean-up procedures and supervision, and is not liable for plaintiff’s injury. We disagree.

Rollings’ version of the accident was corroborated by Douglas M. Cornish, a fellow shopper behind him in the check-out line, who saw broken eggs on the floor with grocery cart tire tracks in them after Rollings had fallen.

Fernand Gettridge, Winn Dixie’s assistant store manager noted something “wet” on Rollings’ pants and “a drop of something on the floor” that was “fresh” when he assisted Rollings after his fall. Dianne Austin, a cashier bagging groceries, observed Cornish (the fellow shopper) and the plaintiff enter the store together. Although she saw Rollings’ basket “go over”, she did not know what Rollings had slipped on and did not check the floor. She remembered seeing eggs in the top of Rollings’ basket, however, and saw a carton of eggs with “drippings” from it in the hands of “whoever came over to clean it up”. The other witnesses did not testify that they saw eggs in plaintiff’s basket before the fall, and plaintiff denied that he had eggs in his basket. Another employee, Annie McGowan, saw Rollings and Cornish “laughing” in the checkout line before the incident, but did not see the fall and did not know if anything was on the floor.

Once a plaintiff proves the existence of a foreign substance on the floor of a business establishment that caused him to slip and fall, the burden shifts to the store to exculpate itself from a presumption of negligence. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Smith v. Winn Dixie Store of Louisiana, Inc., 389 So.2d 900 (La.App. 4th Cir.1980); Hanzo v. Travelers Ins. Co., 357 So.2d 1346 (La.App. 4th Cir.1978). The store owner can carry the burden by establishing that it was free from fault and exercised reasonable portective measures, including periodic inspections to maintain the floors and aisle free of substances or objects that may cause customers to fall. Kavlich v. Kramer, supra; Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Smith v. Winn Dixie Stores of Louisiana, Inc., supra.

Applying these guidelines to the facts of the instant case, we conclude that Rollings successfully carried his burden of showing a slip and fall on a foreign substance in the supermarket check-out aisle. Although Winn Dixie attempted to prove collusion between plaintiff and his corroborating witness Cornish, both denied any pri- or acquaintance. We cannot say under these circumstances that the jury erred in believing Rollings’ version of the accident.

Having concluded that Rollings proved the existence of the foreign substance, we further conclude that Winn Dixie failed to exculpate itself from the presumption of negligence.

Concerning Winn Dixie’s cleaning procedures, Gettridge, the assistant store manager, testified that there is “constant” cleaning of the store but that it is not cleaned on a “regular schedule”. He stated that it is “swept about three or four times a day as needed” and that he, his employees and customers “are constantly watching for breakage”. Although Gettridge testified he “constantly” walked the floors, most of his time on the floor is spent looking for shoplifters. He could not specifically recall the last time he had inspected the floor on the day of the accident, although he estimated that it was within an hour before Rollings’ fall. He could not remember if he had looked in the particular aisle where Rollings fell. In response to a question whether he looks in each cashier’s aisle, he stated, “It depends on what my eyes are glancing at.”

Based on this testimony, we conclude that defendant’s random procedure of maintaining the floor was insufficient supervision under the circumstances. Furthermore, evidence is lacking to show how soon the check-out aisle area had been cleaned prior to plaintiff’s accident. The store manager’s “estimated guess” that it was “within the hour span” clearly does not indicate that systematic inspections or other reasonable protective measures had been taken.

Accordingly, we find no error in the jury’s finding that Winn Dixie was “guilty of sub-standard conduct which proximately caused plaintiff’s injuries.”

CAUSATION

Plaintiff complained of head and back pain. His treating neurosurgeon diagnosed his head pain as “post-concussion state” that will resolve without specific treatment, and his back condition as a rupture of the L4-L5 disc for which he suggests surgery.

Winn Dixie contends that Rollings’ back problem was not caused by the supermarket fall, but rather resulted from two earlier traumas to Rollings’ back in November, 1978, while working on his car, and again in July, 1980, when he fell in a bus. Defendant further argues that Rollings head complaints resulted from a separate incident in April, 1979, when he was hit in the mouth with a bull horn microphone during a public demonstration.

After conservative treatment failed to relieve Rollings’ pain from the February 13, 1981 supermarket accident, he consulted Dr. Raeburn Llewellyn, a neurosurgeon, on August 24, 1981, with complaints of low back pain “shooting through” his legs (more so on the left), headaches, blurry vision, and blackouts. Rollings exhibited a normal head examination, but signs suggested a possible disc lesion. During hospitalization from November 29 through December 11, 1981, Dr. Llewellyn identified a disc rupture from x-rays of the lower back showing a marked narrowing of the L5-S1 disc space and from an abnormal CAT scan of the lumbar spine revealing a rupture of the L4-L5 disc.

Dr. Llewellyn was of the opinion that plaintiff’s low back problem is a consequence of the February 13, 1981 slip and fall in Winn Dixie. Although this physician recognized that plaintiff had been treated for previous back injuries, he concluded that Rollings had recovered from these earlier problems prior to the Winn Dixie incident.

Another neurosurgeon, Dr. John F. Schu-macher, examined plaintiff on one occasion and reviewed his prior x-rays and test results. This physician found no lumbar spasm or any objective findings to support plaintiff’s complaints of low back pain. He detected a scoliosis deformity of the lumbar spine but no disc space narrowing. Dr. Schumacher could not identify any disc abnormality or rupture and found no objective evidence of persistent head injury. On cross examination, Dr. Schumacher testified, however, that the right sided bulge at the L4-L5 disc level might very well be a disc nodule or bulge, although it would be “hard” for this abnormality to produce the left-sided pain complained of by plaintiff.

The jury also had the benefit of the testimony of Dr. James T. Williams, an orthopedic surgeon, who examined Rollings on November 13, 1981, nine months post-accident. According to this physician, plaintiff gave a history of striking his head and back on a NOPSI bus, but no history of the fall in Winn Dixie in February, 1981. Dr. Williams found spasms in plaintiff’s neck muscles but not his back. He testified that x-rays of plaintiff’s lumbar spine were normal, except for pre-existing scoliosis unrelated to pain, and did not show a ruptured disc. He was unable to find a reason for plaintiff’s pain.

Dr. Leon A. Weisberg, a neurologist, also testified. This physician had examined Rollings on December 20, 1979, over a year before the Winn Dixie accident, to determine whether he had a social security disability. At that time Rollings had given history of low back pain from a hit and run accident while working on his car and of neck pain, headache, blurry vision from the April, 1979 demonstration incident. In the December, 1979 examination, Dr. Weisberg found no objective signs or evidence of a herniated disc or acute lumbosacral strain, and had no impression as to the cause of Rollings’ low back pain.

Dr. Weisberg examined Rollings again on June 12, 1980, when he found evidence of muscle spasm in the lower back, which he diagnosed as marked lumbosacral strain syndrome. There was no evidence of nerve or spinal cord injury, however, and he did not feel plaintiff had a disc herniation in June, 1980. Because of the low back pain, however, Dr. Weisberg felt Rollings was temporarily totally disabled from any work activity and recommended that he be treated with anti-inflammatory drugs and muscle relaxants.

The medical evidence considered, we cannot conclude that the jury erred in its conclusion that the Winn Dixie accident caused plaintiff’s lumbar disc injury. Dr. Llewellyn’s findings and opinion together with Dr. Weisberg’s earlier examinations support a conclusion that Rollings suffered a disc rupture attributable to the February, 1981 supermarket fall, rather than his earlier accidents.

QUANTUM

The jury awarded Rollings $180,-000.00 as the “total amount of damages”. This amount includes special medical expenses of approximately 112,500.0o. According to Winn Dixie, the remaining $167,-500.00 in general damages is “clearly excessive”, even assuming Rollings suffered a ruptured disc in the accident. We disagree.

The twenty-eight year old plaintiff testified at length concerning his problems since the February 13, 1981 accident. After hitting his head and back in the fall, he felt as if he “broke something”. He testified concerning his persistent low back pain “shooting through” his leg and leading to his treatment by Dr. Llewellyn after his condition failed to respond to conservative treatment two or three months post-accident. Plaintiff was hospitalized for a two week period in November and December, 1981, when he remained in traction for ten days.

At trial in November, 1982, plaintiff complained of leg pains shooting into his toe, particularly when walking on uneven surfaces. He suffers from daily headaches, blurry vision and blackouts when he is active. His lower back ache persists.

Dr. Llewellyn, who had last examined plaintiff on October 27, 1982, three weeks prior to trial, found no improvement in plaintiff’s back or leg complaints but some lessening of his headaches and blackout spells. In the last visit, plaintiff exhibited spasm of the low back muscles.

Dr. Llewellyn testified that without surgery to remove the ruptured disc, plaintiff cannot be reasonably comfortable jumping, climbing, or lifting, and would have to periodically rest and apply moist heat. With surgery, Rollings would be able to do 80-85% of his daily activity. There is a 20% chance that surgery would not improve his condition. Rollings has declined the suggested operation.

Although there was no expert testimony concerning loss of income, Rollings testified that he had earned $140.00 per week in a seafood market prior to receiving $280.00 per month in social security disability income before the Winn Dixie accident. He stated that he had been thinking of returning to work before the supermarket injury, but cannot work now because of his inability to lift oyster sacks.

Considering the nature of plaintiff’s injury, his pain and suffering, and some loss of earning capacity because of his disability, we cannot say the amount awarded by the jury, though high, is an abuse of its discretion.

Having so concluded, we affirm the judgment.

AFFIRMED.

      . This $12,000.00 figure includes $5,000.00 in past medical expenses and $7,500.00 in anticipated hospitalization and surgical fees should plaintiff elect to undergo the proposed back operation. The $180,000.00 award was reduced to a $162,000.00 judgment in favor of plaintiff based on the jury’s finding that plaintiff had been 10% at fault for his injury.

      . Although generous, the jury’s award of $180,-000.00 includes special past and future medical expenses of $12,500.00. The remaining $167,-500.00 in general damages for plaintiff’s pain and suffering and loss of earning capacity comports with amounts awarded in similar cases involving rupture of lumbar discs resulting in permanent, partial disability. See Lofton v. Whimper, 425 So.2d 1307 (La.App. 4th Cir.1983); Suhor v. Gusse, 403 So.2d 83 (La.App. 4th Cir.1981), writ denied 414 So.2d 1217 (La.1982); Daigle v. Lang, 377 So.2d 1384 (La.App. 4th Cir.1979), writ denied 381 So.2d 510 (La.1980); Johnson v. Wicks, 356 So.2d 469 (La.App. 1st Cir.1977).


author: SCHOTT, Judge.

text:
    Floyd COOK v. DEPARTMENT OF SANITATION.
    No. CA 0713.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Floyd J. Cook, in pro. per. for plaintiff-appellee.
    Bernette J. Johnson, Asst. City Atty., New Orleans, Douglas P. Wilson, Chief Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and SCHOTT and CIACCIO, JJ.
   SCHOTT, Judge.

This is an appeal by the Department of Sanitation of the City of New Orleans from a decision of the City Civil Service Commission reinstating Floyd Cook to employment with the Department after he was dismissed for failing to return to work following a three day suspension. The Commission concluded that this single unexcused absence from work did not constitute cause for dismissal under the particular circumstances of the case and imposed a sixty day suspension in lieu thereof. The issue in this court is whether the Commission erred in reaching this conclusion.

In April, 1982, Cook was suspended from his job as an equipment operator with the department for refusing to perform his assigned duties. He failed to return to work following the three day suspension, and was terminated from employment pursuant to departmental policy providing an employee’s failure to return to work “after an excused absence, or ... after suspension or after medical discharge” will be treated as though the employee resigned his position. One might agree that that departmental policy is reasonable as a general rule, but it must allow an exception in the case of an employee who does not deliberately fail to return to work, such as one whose automobile breaks down while returning from vacation.

At the Commission hearing Cook testified he was unable to return to work because the day before he was required by his landlord to move from a temporary apartment to his permanent apartment. Because he had been awake late the night before and early that morning while moving, Cook said he overslept. He attempted to notify the department from a pay telephone five blocks from his apartment, calling over a 25 minute period between 9 and 10 AM on the morning of his absence, to inform them he had overslept and had to remain at home to be available when the telephone and electric utility companies were to arrive to provide his apartment with services. Despite the fact that Mr. Smith, Cook’s supervisor, testified that someone is present 24 hours a day to receive messages, Cook testified that no one answered the telephone during any of the five or six times he rang. Cook did go to his- work station in the early afternoon and reported the circumstances of his not showing up on time and his attempts to notify his supervisor by telephone.

The Commission apparently believed Cook’s testimony and we accept that credibility determination. Furthermore, the Commission noted that Cook’s work record had been good prior to the incident giving rise to his suspension. Based on these facts and circumstances the Commission concluded that there was not sufficient cause for Cook’s dismissal.

The Commission’s action here is not in conflict, as the appointing authority argues, with Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir.1978). Branighan held only that when sufficient cause for dismissal is shown by the appointing authority the Commission does not have the authority to substitute a lesser discipline. Here, the Commission has quite reasonably concluded that the cause was the rough equivalent of a sanitation worker showing up too late for his route on one day, with an excuse that is not perfect but also not a mere sham; and that that cause is not sufficient cause for dismissal. We are of the same opinion.

AFFIRMED.