author: DOWNEY, Judge.

text:
    Christopher HINSON, a minor by and through his next friend and natural mother, Dorothy Hinson, Appellant, v. Theodore HINSON, State Farm Mutual Automobile Insurance Co., and Ola Mae Davis, as Administratrix of the Estate of John Henry Hinson, Appellees.
    No. 76-2012.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.

      F. Malcolm Cunningham of Cunningham & Cunningham, and Richard P. Zaretsky, and Thomas A. Hoadley of Hoadley & Gavi-gan, West Palm Beach, for appellant.
    Joel T. Daves III of Burdick & Daves and Stierer, Parker & Schorr, West Palm Beach, for appellee Ola Mae Davis.
   DOWNEY, Judge.

Christopher Hinson, a minor, by his next friend and natural mother, Dorothy Hinson, sued Theodore Hinson and State Farm Fire & Casualty Company for wrongful death arising out of the demise of John Henry Hinson, the putative father of Christopher Hinson. Ola Mae Davis, mother of the deceased John Henry Hinson, also brought a wrongful death action against Theodore Hinson and State Farm Fire & Casualty Company. The two cases were consolidated and upon stipulation the defendants paid $10,000.00 into the Registry of the Court, leaving as the sole issue the question of who was entitled to recover the $10,000.00, Christopher or Ola Mae.

Ola Mae contended that Christopher was not John Henry’s son. If that were true, Ola Mae was entitled to recover as the next person in line to inherit from John Henry. Christopher and his mother, the ex-wife of John Henry, claimed Christopher was John Henry’s son born during wedlock and thus he was entitled to recover the money in the Registry of the Court. Ola Mae prevailed in a trial by jury and Christopher appeals from the judgment entered on the jury verdict.

The evidence reflected that John Henry Hinson and Dorothy O’Neal were married in Jupiter, Florida, in 1955. In 1959 they moved to Jersey City, New Jersey, and lived together until sometime in the early nineteen sixties. Dorothy gave birth to Christopher on October 4, 1963. Christopher’s witnesses testified that John Henry and Dorothy lived together in Jersey City until October 1963, while Ola Mae’s witnesses testified that John Henry left Dorothy and came back to Jupiter in 1961.

Appellant Christopher has designated four points on appeal which paraphrased are:

1. Whether the court committed error in refusing to admit into evidence the birth certificate of the minor child, Christopher Hinson, issued by the State of New Jersey?
2. Whether the court committed error in refusing to admit into evidence the business records of Rood Landscaping Company which consists of the employment record of the decedent, John Henry Hinson, in 1963?
3. Whether the court committed error in refusing to give plaintiff’s instructions Numbers 4, 5, 6 and 7?
4. Whether the court committed error in permitting defendant to present the jury hearsay testimony to the effect that the decedent had told defendant that he did not have any children in violation of the “Dead Man’s Statutes”?

We agree that the court’s ruling involved on Point II was error, but it was harmless because John Henry’s employer testified to the same information which would have been reflected by the records.

With regard to Point I, during the course of the trial Christopher offered in evidence a certified copy of his birth certificate from the New Jersey State Department of Health. Ola Mae objected to the admissibility of the birth certificate and the trial court, after extended argument, sustained the objection on the grounds a) that the birth certificate was not properly authenticated and b) that the certificate was offered to prove the ultimate fact in issue (parentage) and as such it was self serving and hearsay.

We believe the trial court was correct on ground (a) but incorrect on ground (b).

A birth certificate as a public document is admissible as prima facie evidence of the truth of the facts stated therein when those facts are required by law to be furnished. As stated in Gard’s Florida Evidence, Rule 302 and the Author’s Comment thereto:

“Rule 302. Certificates of Birth and ■ Death — Coroners’ Verdicts
“(a) Birth and death certificates, or duly certified copies thereof, are prima facie evidence of the facts required to be recorded therein.
“Author’s Comment
“There is common-law basis for the introduction of evidence of vital statistics such as birth and death through the records required to be kept by public authority. The reasoning of the rule extends to certificates required to be made and filed by certain ad hoc public officials such as attending physicians at birth or death, coroners, and undertakers. The evidence is furnished in the form of a certified copy of the certificate from the public authority where the record is required to be kept. The matter is now very largely controlled by statutes as in Florida, which prescribe the factual information which is to go into the certificates, the manner in which it shall be preserved, and the like. Since the certificate is evidence only because it is a required record, it cannot be admissible evidence as to any matter inserted in the certificate not required by law.”

To the same effect is the statement in 30 Am.Jur.2d Evidence, § 1007:

“It is generally provided by state law at the present time that records of births are to be kept by the public authorities, and there is no question but that such records or copies thereof, where duly authenticated and relevant to the issues before the court, are admissible in evidence as public records. Also, a birth certificate properly issued by public authorities is generally admissible in evidence in proof of the date of birth.
“It has been held that a birth certificate is admissible in evidence as prima facie proof of the fact of paternity, particularly where a statute makes records of birth prima facie evidence of the fact.

It is also worthy of note that were this a Florida birth certificate, Section 382.20, Florida Statutes (1975), would make the certificate prima facie evidence of the truth of the statements made herein.

With regard to the authentication of the birth certificate, we believe it was insufficient. The certificate was properly certified in that the State Commissioner of Health certified that the birth certificate attached was a true copy of a record filed in the Department of Health and the seal of the State of New Jersey was affixed thereto. However, since it is a public document from a sister state more is required by way of foundation to fully authenticate the document and make it admissible in the courts of this state.

Florida, of course, has a statute making admissible certified copies of public documents. However, there is no statutory authority in Florida prescribing the manner in which the public documents of a sister state are to be authenticated in order to make them admissible as evidence in the courts of this state. Looking to the general law, we find that it is usually held that a simple certification by the keeper of the record is insufficient to admit a public document of a sister state. In addition to the certification by the keeper of the record that the instrument in question is a true copy of a record contained in his office and the impression of his seal there must be some further authentication of the authority of the keeper, his incumbency and the genuineness of his signature. In 32 C.J.S. Evidence § 673, p. 884, it is stated:

“The purpose of authentication is to guarantee that the original of the copy genuinely exists, as exemplified, and this is attained by showing the authority of the person certifying, or that he is keeper of the record, his present incumbency of the office, and the genuineness of his signature or seal. . . . ”

These same requirements are set forth in the Federal Statute enacted pursuant to mandate of the United States Constitution. The Federal statute provides:

§ 1739. State and Territorial nonjudicial records; full faith and credit
“All nonjudicial records or books kept in any public office of any State, Territory, or Possession of the United States, or copies thereof, shall be proved or admitted in any court or office in any other State, Territory, or Possession by the attestation of the custodian of such rec-
ords or books, and the seal of his office annexed, if there be a seal, together with a certificate of a judge of a court of record of the county, parish, or district in which such office may be kept, or of the Governor, or secretary of state, the chancellor or keeper of the great seal, of the State, Territory, or Possession that the said attestation is in due form and by the proper officers.
“If the certificate is given by a judge, it shall be further authenticated by the clerk or prothonotary of the court, who shall certify, under his hand and the seal of his office, that such judge is duly commissioned and qualified; or, if given by such Governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or Possession in which it is made.
“Such records or books, or copies thereof, so authenticated, shall have the same full faith and credit in every court and office within the United States and its Territories and Possessions as they have by law or usage in the courts or offices of the State, Territory, or Possession from which they are taken.”

And so we hold that in order to properly authenticate a non-judicial public document of a sister state so as to make said document admissible in the courts of this state, the document should be certified by the keeper of the record as a true copy of the records in his custody; the seal of the keeper’s office should be affixed if he has a seal; and then either a judge of a court of record or some state officer with an official seal should vouch for the authority and incumbency of the keeper, the genuineness of his signature and that official should affix his seal to the certificate.

Appellant’s fourth point suggests the trial court erred in allowing Ola Mae, over objection, to testify that John Henry never told her that Christopher was his son. While the question posed is cast in the negative the inference suggested is that if John Henry had a son he would surely have told his mother about it. Of course, Ola Mae was interested in the event of the cause and Christopher was a protected person under the Dead Man’s Statute. This is not a case in which the evidence was overwhelmingly in favor of the appellee; it was, in fact, a close case. Accordingly, we are unable to say with any degree of certitude that it was harmless error to allow Ola Mae to testify that the deceased never told her Christopher was his son.

Since this case must be tried again, we will mention appellant’s complaint about the trial court’s admitting a transcript of Dorothy Hinson’s testimony taken in the divorce case between Dorothy and John Henry.

Dorothy had testified in this case that John Henry did not leave her in Jersey City until October 1963, after Christopher was born, and that Christopher was John Henry’s child. Ola Mae then offered in evidence a transcript of the testimony and the proceedings in the divorce case between Dorothy and John Henry. At that time, in 1969, Dorothy testified that John Henry left her in Jersey City in 1962 and that she had no children. Appellant objected to the admissibility of that evidence upon the basis that the rule in Florida is a mother may not bastardize her child so she is incompetent as a witness to testify that her child is illegitimate. Appellant relied upon Smith v. Wise, 234 So.2d 145 (Fla. 3rd DCA 1970), and Sanders v. Yancey, 122 So.2d 202 (Fla. 2nd DCA 1960), for that position.

However, the rule in Florida that a mother is not permitted to have a child born in wedlock declared to be illegitimate has been changed.

The Florida Supreme Court in Gammon v. Cobb, 335 So.2d 261 (Fla.1976), held Florida Statute § 742.011, bastardy statute unconstitutional because it denied equal protection to married women who were not permitted to bring a paternity action. While Gammon did not specifically hold that a mother can testify so as to bastardize her child, this exact issue was reached in Williams v. Estate of Long, 338 So.2d 563 (Fla. 1st DCA 1976), wherein the court specifically held that a mother could testify that her child was illegitimate relying on Gammon, supra. In re Estate of Jerrido, 339 So.2d 237 (Fla. 4th DCA 1976).

Therefore, in the case at bar the trial court did not err in allowing into evidence the transcript from the divorce proceedings wherein Dorothy testified that she did not have any children by John Henry, which would, of course, mean Christopher was illegitimate.

Finally, appellant contends it was error not to give four requested instructions. We find no error in this respect because appellant’s requested instruction No. 4 was covered by the instruction given by the Court, instructions Nos. 5, 6 and 7, refer to the competency of a mother as a witness to testify to the illegitimacy of her child. As pointed out above, those instructions are no longer a correct statement of the law. Appellant’s requested instruction No. 6 additionally advises the jury about the presumption of legitimacy. Generally speaking, the jury is not to be instructed on presumptions. The office of a presumption is to provide a prima facie case. The defendant then has the burden to go forward with the evidence to rebut the fact presumed — if defendant introduces sufficient evidence the presumption “dissipates” and the jury must decide based on all evidence without the aid of a presumption. Gulle v. Boggs, 174 So.2d 26 (Fla.1965); Shaw v. York, 187 So .2d 397 (Fla. 1st DCA 1966).

In view of the foregoing, we reverse the judgment appealed from and remand the cause for a new trial.

REVERSED AND REMANDED.

CROSS, J., and WEAVER, SIDNEY M., Associate Judge, concur.

      . No relation to John Henry Hinson.

      . This case was controlled by the Wrongful Death Act in effect in 1971.

      . 28 U.S.C.A. § 1739.

      . U.S.Const. art. 4, § 1; art. 1, § 8.


source: Caselaw Access Project

author: ANSTEAD, Judge. CROSS, Judge,

license: Public Domain

text:
    Dennis BURCHELL, Appellant, v. Charles BECHERT, II, Appellee.
    No. 77-27.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 12, 1978.
    Harry G. Carratt, of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant.

      John R. Gillespie, Jr. and Jon E. Krup-nick, of Krupnick & Campbell, P.A., Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

This is an appeal from a summary judgment entered against the appellant, Dennis Burchell, who was the plaintiff in a malicious prosecution action. We reverse.

Burchell was twice sued by the appellee, Charles Bechert, II, for fraud and misrepresentation. Bechert took successive voluntary dismissals in both actions, the final dismissal resulting in an adjudication on the merits against Bechert. Thereafter, Burc-hell brought this malicious prosecution action against Bechert. At the heart of the dispute is a claim by Bechert that Burchell made certain fraudulent misrepresentations to him. Burchell denies that he made the statements in question and claims that Bec-hert’s lawsuits for fraud were only brought to force the payment of a debt which Burc-hell did not owe. In addition to denying the allegations of Burchell’s suit, Bechert asserted the advice of counsel as an affirmative defense.

In an order entered on a petition for rehearing the trial court indicated that one of the grounds upon which he entered summary judgment was on the defense of advice of counsel. Bechert claimed that all he did was go to his attorney, disclose all he knew about the matter, and then his attorney made the decision to file the lawsuits for fraud and misrepresentation. To establish the defense of advice of counsel a party must establish that he made a full and honest disclosure to his attorney of all relevant facts known to him at the time. Glass v. Parrish, 51 So.2d 717 (Fla.1951). Here, Bechert is conceded to have advised his attorney that Burchell made certain statements to him. Burchell denies having made those statements. In other words Burchell claims that Bechert did not tell his attorney the truth about the alleged statements. If Burchell is proven correct, then Bechert could not have made a full and honest disclosure to his attorney. Paulk v. Buczynski, 106 So.2d 100 (Fla.2d DCA 1958). This factual dispute precluded the entry of a summary judgment on the defense of advice of counsel.

Bechert also claims that there is no proof in the record as to several elements of a malicious prosecution action. The elements of such an action are set out in Tatum Bros. Real Estate & Investment Company v. Watson, 92 Fla. 278, 109 So. 623 (1926):

“An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. If any one of these elements is lacking, the result is fatal to the action.”

As to the first two elements, there is no question but that Bechert instituted the two fraud actions against Burchell.

On the issue of whether or not those actions resulted in a bona fide termination in favor of Burchell, we believe that Fla.R. Civ.P. 1.420(a)(1) forms a sufficient basis to support that claim:

Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

Bechert was on notice of this rule when he dismissed his second successive action against Burchell and the dismissal operated as an adjudication upon the merits of Bec-hert’s claim.

Whether or not Bechert had probable cause to sue Burchell depends at least in part upon whether or not Burchell made the statements alleged by Bechert to form the basis of his suits. That factual conflict precluded a summary judgment on this issue as well as the advice of counsel issue. Likewise, we believe the issue of malice depends at least in part on the resolution of this same factual issue. While malice is a separate element from probable cause, the existence of malice may be inferred from the same circumstances which establish a lack of probable cause. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977), Case No. 50,723, Opinion filed December 8, 1977.

As to damages, there is evidence in the record of the amount of attorney’s fees incurred by Burchell in defending Bechert’s lawsuits. There is also authority that a malicious prosecution is actionable per se; that is that some damage is necessarily caused by the wrongful prosecution itself and does not require specific proof as to amount. Adler v. Segal, 108 So.2d 773 (Fla.3d DCA 1959).

Accordingly, the judgment of the trial court is hereby reversed and the cause is remanded for further proceedings consistent with this opinion.

WEAVER, SIDNEY M., Associate Judge, concurs.

CROSS, J., concurs specially, with opinion.

CROSS, Judge,

concurring specially:

I concur with my brethren. However, I hasten to point out that the question of whether the voluntary dismissal of a prior action amounts to a termination of the prior proceeding in favor of the claimant so as to satisfy the requisites of an action for malicious prosecution often is an issue of fact which must be proved from a consideration of the circumstances underlying the claim. The Savage Is Loose Company v. United Artists, 413 F.Supp. 555 (S.D.N.Y.1976).

I doubt that a mere reference to a rule of procedure, such as Fla.R.Civ.P. 1.420(a)(1) which provides that the taking of a second voluntary dismissal acts as “an adjudication on the merits” amounts to a per se satisfaction of the requirement that the prior proceeding be terminated in favor of the complaining party. It is obvious that one of the purposes of this “legal termination” requirement is to establish a groundwork for showing that no probable cause existed for the institution of the prior proceedings. I question whether the voluntary dismissal of an action can logically be said to establish that there was no probable cause to file the former suit. Moreover, involuntary dismissal based on other procedural grounds, such as actions barred by a statute of limitations or ones brought about by the failure of counsel to comply with the appropriate rules or other orders of court, even though properly characterized as adjudications on the merits, should not be relied upon to establish prima facie lack of probable cause. In such cases, these matters merely provide some evidence which may or may not be relevant to a factual determination of whether or not the prior proceeding terminated in favor of the claimant. Hernon v. Revere Copper & Brass, Inc., 363 F.Supp. 96 (E.D.Mo.1973); Kurek v. Kavanagh et al., 50 Ill.App.3d 1033, 8 Ill.Dec. 805, 365 N.E.2d 1191 (Ill. 3d DCA 1977); Siegel v. City of Chicago, 127 Ill.App.2d 84, 261 N.E.2d 802 (Ill. 1st DCA 1970).

With this clarification, I concur with the majority’s opinion.


author: PER CURIAM.

text:
    Ethel Lee BRYANT and Clyde Bryant, Petitioners, v. The Honorable George W. TEDDER and the Honorable Stanton S. Kaplan, Circuit Judges of the Seventeenth Judicial Circuit in and for Broward County, Respondents.
    No. 78-85.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 4, 1978.

      E. Hugh Chappell, Jr. of McCrory, Chap-pell, Brandt & Gore, P. A., Fort Lauderdale, for petitioners.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for respondents.
    George E. Bunnell of Bunnell, Knight & Graham, and Nancy Little Hoffmann, Fort Lauderdale, as amicus curiae.
   PER CURIAM.

The issue involved in this cause is exactly the same as was decided in Morales v. Moore, 356 So.2d 829 (Fla. 4th DCA 1978). Accordingly, we hereby exercise our discretion to treat the suggestion for writ of prohibition as a petition for writ of certiora-ri. For the reasons set out in Morales, the petition is granted; and the order denying the petitioner’s motion to strike is quashed, with directions that an order be entered excluding podiatrists from the list of prospective members of the medical mediation panel.

ALDERMAN, C. J., and ANSTEAD and LETTS, JJ., concur.


text:
    Howard SMITH, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-1936.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.

      Bennett H. Brummer, Public Defender and Irv J. Lamel and Kurt Marmar, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant brings this appeal urging that the trial court erred in allowing into evidence (1) police testimony during the prosecution’s direct examination and (2) defendant’s testimony during cross-examination of the fact that defendant remained silent during pre-arrest custody.

On April 12, 1976, defendant was informed against for the crime of attempted first degree murder. Following a plea of not guilty and the waiving of a jury, defendant went to trial on May 11,1976. The case was recessed until June 23, 1976, at which time defendant was found guilty as charged, with adjudication entered on September 9, 1976. Defendant was sentenced to three years in the state penitentiary as a condition to a sentence of eight years probation.

A prosecution witness, Police Officer Lawrence Cochran, testified that while passing a gas station in his unmarked car, he heard gun shots, got out of his car, saw several people inside the station office door, one of whom was the defendant. Because the defendant had a gun in his hand, Cochran drew his own weapon and ordered defendant to drop his weapon. Then Cochran placed the defendant in custody, instructing another police officer to read defendant his rights. Cochran also testified that no statements were made to him at that time by the defendant or the victim, who was lying on the station office floor bleeding from a gunshot wound.

During the defense’s case, defendant testified on his own behalf that he had been target practicing earlier on the day of the shooting, that he had the gun in his pocket while talking with the victim in the gas station office, that he did not know the gun was loaded (due to the fact that a friend of his had been target practicing with the gun earlier in the day), and that he drew his gun only when he thought he saw a shiny object when the victim started fumbling in his pocket and on top of the desk in the station office. Defendant also testified that he did not intend to shoot or kill the victim when he entered the station.

During cross-examination, the prosecution questioned defendant about the target practice:

“Q: Did you tell that to the police?
“A: I did not.
“Q: This is the first time you have told anybody that?
“A: Right.”

The prosecution also questioned defendant about the fact that he thought the gun was not loaded.

“Q: This is the first time you have told that to anybody?
“A: When I had taken the gun out?
“Q: This is the first time you have told anybody that Warren fired the gun that day?
“A: Right.”

During direct examination, the defendant testified that he gave a statement at the police station. Later, during cross-examination, this statement was admitted as State’s Exhibit No. 3 and the following question was asked:

“Q: [by the prosecution] When the police first arrived after the shooting, you did not go up to the police officers and tell them that you thought he was going to shoot you, and that is why you shot him? You did not say a word to them, did you?

The defendant presents the following question on appeal:

“Whether the introduction by the prosecution on direct examination of a police officer of testimony that the defendant remained silent while in custody, and on cross-examination of the defendant of testimony that the defendant remained silent while in custody, constituted fundamental error and deprived the defendant of his rights under the Fifth and Fourteenth Amendments to the Constitution of the United States.”

We hold that no violation of defendant’s constitutional rights appears on this record, and we affirm. Concerning the direct examination of the policeman, it is clear that the question about statements made “immediately after your arrival” refers to the time that the officer entered the scene and does not refer to the defendant’s failure to make a statement after he was given his Miranda warnings. In fact, the defendant did make a statement after his Miranda warnings. It was introduced into evidence. It should be noted that the defendant did not object to the question propounded to the officer and it may reasonably be concluded that the defendant concurred that the reference to any statement made “immediately after your arrival” referred only to a pre-Miranda statement. The admonition against the State’s use of the defendant’s silence in the face of accusations is limited to post-arrest silence. Cf. Lebowitz v. State, 343 So.2d 666 (Fla. 3d DCA 1977). See also the discussions in State v. Galasso, 217 So.2d 326 (Fla.1968); and Cridland v. State, 338 So.2d 30 (Fla. 3d DCA 1976).

Concerning the cross-examination of the defendant, the trial court properly permitted the prosecutor to cross-examine the defendant about an inconsistency in the version of events offered at trial, compared with the story presented to the police officers after defendant waived his Miranda rights. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), particularly footnote 11, which is as follows:

“11. It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975).”

Cf. Miller v. State, 343 So.2d 1292 (Fla. 3d DCA 1977).

On direct examination, the defendant testified that he gave a statement at the police station upon arrest. The actual statement was admitted into evidence at the trial. The statement was given to the police the day of the crime after defendant waived his Miranda warnings. On cross-examination, the prosecutor pointed out the discrepancies in the defendant’s statement at the trial, compared with the version given to the police on the day of the crime. Further, on cross-examination, the defendant stated that he had gone target practicing, a fact which he had not disclosed in the statement given to police. In conclusion, the prosecutor properly cross-examined the defendant concerning his inconsistent versions of the evidence.

Accordingly, finding that no reversible error has been demonstrated, the judgment and sentence are affirmed.

Affirmed.

      . A prior information against the defendant for assault with intent to commit first degree murder was dismissed on April 12, 1976.

      . “Q. [by the prosecution] Were any statements made to you at the scene, immediately after your arrival, about what had occurred?
      “A. Not from the victim or the defendant.”


author: HUBBART, Judge.

text:
    I. V. ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-213.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.

      Sam W. Kleinfeld, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   HUBBART, Judge.

This is a criminal prosecution for burglary and petit larceny in which the defendant was convicted as charged and sentenced. The defendant appeals.

The only issue presented for review which merits extended discussion is whether there is a fatal variance between the information and proof in a burglary prosecution where the information alleges that the burglarized dwelling was the property of a named person as owner and custodian thereof and the proof shows that such person is a lawful tenant of the dwelling where he lives along with the fee title holder and lessor of said dwelling. We hold that there is no fatal variance under such circumstances and affirm.

The defendant I. V. Anderson was charged by information with burglary and petit larceny before the Circuit Court for the Eleventh Judicial Circuit of Florida. The burglary count of the information charged that the defendant on May 9, 1976, in Dade County, Florida, “did unlawfully enter or remain in a certain dwelling, located at 2735 N.W. 44th Street, Dade County, Florida, in the County and State aforesaid, the property of VAN ALEXANDER, as owner or custodian thereof, with intent to commit an offense therein, to wit; PETIT LARCENY, in violation of Section 810.-02(3), Florida Statutes. . . . ”

The defendant entered a plea of not guilty, waived trial by jury, and was tried by the court without a jury. The evidence introduced at trial revealed that on May 9, 1976, Van Alexander lived at a dwelling house located at 2735 N.W. 44th Street, in Dade County, Florida, as a lawful tenant of said house. The owner and lessor of the house was Mary Alexander and she too lived in the house on the date of the offense. Both Van and Mary Alexander occupied and had equal access to the entire house.

The evidence linking the defendant to the burglary and theft of the television set therein was admittedly more than sufficient to sustain the conviction returned and no contention is made to the contrary. The house was broken into, ransacked, and a television set belonging to Van Alexander was taken by the defendant. It is also clear from the evidence that the defendant had no property or possessory interest whatever in the burglarized premises.

The trial court denied appropriate defense motions for judgment of acquittal at trial and found the defendant guilty as charged. The defendant was adjudged guilty and sentenced to three years imprisonment. The defendant now appeals to this court and contends that there is a fatal variance between the information and proof as to the ownership of the burglarized dwelling. We cannot agree.

The crime of burglary under Sections 810.02(1), (3), Florida Statutes (1975), is the unconsensual entering or remaining in the structure or conveyance of another with intent to commit an offense therein. Vasquez v. State, 350 So.2d 1094, 1096 (Fla. 3d DCA 1977). The purpose of the statute is to punish a criminal invasion of the pos-sessory property rights of another in structures and conveyances, as opposed to ownership rights therein. Potter v. State, 91 Fla. 938, 109 So. 91 (1926); Presley v. State, 61 Fla. 46, 54 So. 367 (1911); Vasquez v. State, 350 So.2d 1094, 1096 (Fla. 3d DCA 1977); Jackson v. State, 259 So.2d 739 (Fla. 2d DCA 1972); Gagne v. State, 138 So.2d 90 (Fla. 2d DCA 1962); Holzapfel v. State, 120 So.2d 195, 197 (Fla. 3d DCA 1960).

One of the essential elements of the crime of burglary relevant here is that the burglarized structure or conveyance must be that of another; that is, it must be lawfully possessed at the time of the offense by someone other than the defendant. Cannon v. State, 102 Fla. 928, 136 So. 695 (1931). The courts have often called this element “ownership” which has been defined as a word of art to mean “any possession which is rightful as against the burglar,” Addison v. State, 95 Fla. 737, 741, 116 So. 629, 630 (1928); Dorsey v. State, 324 So.2d 159, 160 (Fla. 1st DCA 1975), and is satisfied by “proof of special or temporary ownership, possession or control.” Dees v. State, 99 Fla. 1144, 128 So. 485 (1930). The name of the “owner” of the burglarized structure or conveyance as thus defined must be sufficiently alleged in the indictment or information and proven as alleged without fatal variance. Lopez v. State, 106 Fla. 361, 143 So. 303 (1932); Addison v. State, 95 Fla. 737, 116 So. 629 (1928); Davis v. State, 51 Fla. 37, 40 So. 179 (1906); Pells v. State, 20 Fla. 774 (1884); State v. Ward, 354 So.2d 125 (Fla. 3d DCA 1978); Mitchell v. State, 317 So.2d 465 (Fla. 4th DCA 1975); Sifford v. State, 202 So.2d 14 (Fla. 3d DCA 1967); Haines v. State, 113 So.2d 601 (Fla. 2d DCA 1959). It is said that requiring such allegation and proof as thus particularized not only is essential to establishing the element of “ownership,” but also protects the defendant from a second prosecution for the same offense. Findley v. State, 124 Fla. 447, 168 So. 544 (1936); Addison v. State, 95 Fla. 737, 116 So. 629 (1928); Davis v. State, 51 Fla. 37, 40 So. 179 (1906); Harper v. State, 169 So.2d 512 (Fla. 2d DCA 1964).

Although the courts have been more strict in interpreting this element in burglary, as opposed to larceny or robbery cases, Johnson v. State, 293 So.2d 71 (Fla.1974); Kennedy v. State, 31 Fla. 428, 12 So. 858 (1893), they have never been overly concerned with the technical niceties of real property law and have often held that minor deficiencies in pleading and proof as to “ownership” are immaterial under the burglary statute. Kirtsinger v. State, 99 Fla. 433, 126 So. 767 (1930); Addison v. State, 95 Fla. 737, 116 So. 629 (1928); Dorsey v. State, 324 So.2d 159 (Fla. 1st DCA 1975); Gagne v. State, 138 So.2d 90 (Fla. 2d DCA 1962). Obviously, something more than mere occupancy of the burglarized premises is essential to constitute “ownership”. Potter v. State, 91 Fla. 938, 109 So. 91 (1926). And mere work contact with the burglarized premises by an employee, servant, or manager of the fee title holder or legal tenant is equally insufficient. Addison v. State, 95 Fla. 737, 116 So. 629 (1928); Smith v. State, 96 Fla. 30, 117 So. 377 (1928); Stewart v. State, 122 So.2d 34 (Fla. 2d DCA 1960). But any substantial lawful control over such premises superior to that of the defendant constitutes “ownership” for burglary purposes. Harper v. State, 169 So.2d 512, 515 (Fla. 2d DCA 1964). It is accordingly well-settled that a legal tenant who occupies the burglarized premises at the time of the offense is the “owner” thereof under the burglary statute, not the unoccu-pying fee title holder or lessor. Indeed, such a fee title holder or lessor can commit a burglary against the leased premises because the occupying tenant is in sole lawful possession thereof. Cannon v. State, 102 Fla. 928, 136 So. 695 (1931); Dees v. State, 99 Fla. 1144, 128 So. 485 (1930); Collingsworth v. State, 93 Fla. 1110, 113 So. 561 (1927); Leslie v. State, 35 Fla. 171, 17 So. 555 (1895); Lindsey v. State, 184 So.2d 437 (Fla. 3d DCA 1966); Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960).

In the instant case, the information lays the ownership of the burglarized dwelling in Van Alexander; the evidence at trial establishes that Van Alexander was an occupying lawful tenant in the dwelling house with access to the entire house. The evidence also establishes that living there with him was the fee title holder and lessor of the premises, Mary Alexander. In such case, we see no difficulty in laying “ownership” under the burglary statute in either the tenant or the owner-lessor and proving same as alleged because each is in lawful possession of the premises as against the defendant. Kirtsinger v. State, 99 Fla. 433, 126 So. 767 (1930). The element of “ownership” was therefore properly established as laid herein, which holding in no way exposes the defendant to a second prosecution for the same offense.

We have carefully considered the other contentions raised by the defendant for reversal of the conviction herein and find them insufficient to merit a reversal of the convictions returned herein. We accordingly affirmed the judgment of conviction and sentence herein.

Affirmed.

      . “(1) 'Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. * * *
      (3) If the offender does not make an assault or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. James CASS.
    No. 59924.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied March 3, 1978.
    Irving M. Greenberg, Jack H. Kaplan, Gamm, Greenberg & Kaplan, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

James Cass was indicted by the grand jury for the Parish of Caddo for the crime of aggravated rape in violation of La.R.S. 14:42. Subsequently, on motion of the state, the indictment was amended to charge defendant with attempted aggravated rape. La.R.S. 14:27. After trial by jury, he was found guilty as charged and was sentenced to serve twenty years at hard labor. On appeal, defendant relies on eight assignments of error for reversal of his conviction and sentence. Two other assignments of error have not been briefed and are therefore considered abandoned. State v. Jones, 340 So.2d 563 (La.1976). Finding merit in defendant’s assignment of error number one, we reverse defendant’s conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends in these assignments of error that the trial judge erred in removing a juror during trial and substituting an alternate juror in his place when the juror allegedly fell asleep during the victim’s testimony on cross-examination. Defendant argues that the conduct of the jur- or did not render him unfit or disqualified to perform his duties and, hence, he was improperly removed. In explaining his reasons for removing the juror, the trial judge stated that when he observed the juror sleeping he became concerned that he was ill. After the juror was removed and replaced, defendant moved for a mistrial, which the trial judge denied.

The record indicates that shortly before the end of the first day of trial the judge apparently noticed that one of the jurors appeared to be asleep. The judge indicated that the juror’s head was hanging low, often-times bobbing or nodding, and his eyes were closed. After two to four minutes of such observation the judge summarily ordered the removal of the juror. Before leaving the courtroom the juror twice stated aloud that he had not been asleep.

Article 789 of the Louisiana Code of Criminal Procedure provides in pertinent part:

“The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties prior to the time the jury retires to consider its verdict. . . . (emphasis ours)

In two recent decisions rendered by this Court we have had the opportunity to discuss the serious nature of a trial court’s removal of a juror and the circumstances under which such a procedure would be deemed proper. In State v. Buggage, 351 So.2d 95, 96, decision rendered October 10, 1977 this Court, per the Chief Justice, cited the following language authored by Justice Summers in State v. Rounsavall, 337 So.2d 190 (La.1976) relative to the replacing of a regular juror with an alternate:

“Alternate jurors are drawn and serve to replace jurors who become unable to perform or who are disqualified from performing their duties prior to the time the jury retires to consider its verdict. La. Code Crim.Pro. art. 789. And, while the court may disqualify a prospective juror from service in a particular case when for any reason doubt exists as to the competency of the prospective juror to serve in the case, ibid. arts. 783, 787, once the trial has begun by the swearing of the first juror selected, ibid. art. 761, and the jurors are accepted and sworn, they may not be removed unless they are ‘incompetent to serve’, ibid. art. 796.
“Once a jury has been selected and sworn the accused has a right to have his fate decided by the particular jurors selected to try him. The phrase ‘incompetent to serve’ embodied in Article 796 refers to death, illness or any other cause which renders a juror unfit or disqualified to perform his duty as prescribed. The right of the accused to have a juror selected by him try the case is a substantial one, the improper deprivation of which is prejudicial. The doctrine of harmless error is, therefore, inapplicable. State v. White, 244 La. 585, 153 So.2d 401 (1963); State v. Willie, 130 La. 454, 58 So. 147 (1912).”

Consistent with State v. Buggage, supra, and State v. Rounsavall, supra, and applying Art. 789 C.Cr.P. we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had defendant and the state been afforded an opportunity to explore on the record the defendant’s inability to perform on this account, we would be presented with a substantially different question for review.

Under the circumstance present here, the assignment has merit. * We hold that the trial judge erred in summarily removing the juror under the circumstances and in the manner which he did, and in refusing defendant’s motion for a mistrial. For this reason, we reverse defendant’s conviction and sentence and remand the case for a new trial.

OTHER ASSIGNMENTS OF ERROR

As the case will be remanded to the district court and defendant will probably be retried, we deem it advisable to discuss other assignments of error alleged by defendant which are likely to recur in the new trial.

In brief defendant alleges that the trial court erred in denying defendant’s motion for a subpoena duces tecum. The subpoena was directed to the Sheriff and District Attorney of Bossier, an adjoining Parish, and would have ordered them to produce all notations and documents reflecting the time period on the day of the crime during which defendant aided the State Police in an attempt to make an undercover purchase of marijuana. The state contends that such information' was properly denied the defendant as the same information could have been obtained by subpoenaing the officers who were with the defendant on the night of the crime.

Some discretion is of course granted a trial court in granting or denying an out-of-parish subpoena. Article 740 of the Louisiana Code of Criminal Procedure requires the party requesting the subpoena to show that the material sought is “relevant, material and not cumulative.” The court must then conduct its own inquiry to determine whether the evidence is “indispensable to the trial or hearing,” which we interpret to mean indispensable to a fair trial or hearing. (This article speaks merely of subpoenas but is also applicable to subpoenas duc-es tecum. See Official Revision Comment “E”, thereunder.)

In the present case it would seem that the information sought by the defendant was relevant, material and non-cumulative and more than likely indispensable to a fair trial. It might well have established or tended to show that defendant was elsewhere at the time the crime was committed.

In assignment of error number three defendant contends that the trial judge erred in permitting an expert witness in the field of fingerprinting to testify as to the time that a latent print had been left on the trunk of the vehicle in which the crime was committed where no control test had been conducted on the vehicle.

On direct examination, Deputy Jim Hood, who had been qualified as an expert in the field of fingerprinting, was asked a hypothetical question based on facts previously admitted in evidence. He was asked to assume that a car was cleaned on Saturday afternoon; around midnight an identification officer lifted a latent palm print from the top trunk lid of the vehicle at the exact spot where the victim of the crime had directed him after having informed him that defendant placed his hand there. (The evidence revealed that Danny Goode had washed his car on the afternoon of the day that the crime was committed and that defendant had placed Goode in the trunk of the car for a while during the crime.) Hood was asked when the print would have been placed on the trunk whereupon defendant objected to the hypothetical question on the ground that the witness could not render an opinion as to when the print was placed on the trunk in the absence of a control test being conducted. His objection was overruled. Thereupon the witness testified that the palm print would have been placed on the car after the car was washed. On cross-examination the witness denied that an accurate opinion could not be given as to how long a latent print had been on an object unless a control test had been conducted.

An opinion of an expert witness on facts not within his personal knowledge may be elicited by propounding a hypothetical question which is in proper form, provided the hypothesis assumes only facts which the evidence proves or tends to prove. State v. Schouest, 351 So.2d 462 (La.1977), handed down October 10, 1977. If the record supports the facts assumed, the hypothetical question is proper. In the instant case every fact on which the hypothesis was based was supported by the evidence. The question was therefore proper. Moreover, the expert witness denied that a control test was necessary to determine how long the latent prints had been on the object. The failure to conduct such a test does not render the testimony of the expert inadmissible but rather affects only its weight. Hence, defendant’s objection to the testimony was properly overruled.

Assignment of error number three is without merit.

In assignment of error number four defendant contends that the trial court erred in admitting the in-court identifications of the defendant by the victim and an eyewitness to the crime. He contends that they were tainted by impermissibly suggestive out-of-court identifications made by the witnesses at a photographic lineup. We find this assignment to be nonmeritorious. Our review of the record does not indicate any impermissively suggestive actions by the police during the out-of-court identifications. But, even if it is assumed arguendo that the out-of-court identifications were tainted, if the in-court identifications had a source independent of the out-of-court identifications, then the in-court identifications do not violate defendant’s due process rights. State v. Anthony, 332 So.2d 214 (La.1976); State v. Peevy, 321 So.2d 324 (La.1975). In the instant case, the eyewitness testified that the crime was committed on a bright moonlit night so that he could clearly see the assailant. Defendant was viewed at close range by both the victim and the eyewitness over a long period of time (a little less than an hour). In view of the totality of the circumstances, the in-court identifications had an independent source and did not violate defendant’s due process rights.

Decree

For the foregoing reasons the conviction and sentence of defendant Cass is reversed and the case is remanded to the district court for further proceedings consistent with the views expressed in this opinion.

REVERSED AND REMANDED.

      . It should be noted that defendant Cass was also tried and convicted for the crime of armed robbery arising out of this same attempted rape incident. Separate appeals of the two convictions were lodged in this Court. In a companion decision handed down this day, State v. Cass, 356 So.2d 936 (La.1977) No. 60,468, defendant’s conviction and sentence for the crime of armed robbery had been affirmed.

      . Defendant contends that he was particularly disturbed by the allegedly illegal removal of the juror because the state had no grounds to challenge him for cause and had been required to accept him (the twelfth juror chosen) because their peremptory challenges had been exhausted, and also because that juror’s age, race and marital status, akin to that of the defendant, made him peculiarly susceptible to fairly judging the defendant.

      . We note that this argument is not reviewable by this Court as the defendant has not made it an assignment of error. However, since the issue is likely to recur we treat the assignment for future trial guidance.

      . It appears from defendant’s testimony that he was working on the night of the crime as an undercover informer for the police in the detection of narcotic related crimes. He had been picked up at his residence by three police officers and was taken to Plain Dealing, Louisiana for the purpose of buying some marijuana from a local dealer. During his negotiations for the sale several of the officers and the defendant smoked marijuana.
      The defendant’s main defense at trial was that the officers did not return him home until such time after the commission of the crime as to make it impossible for him to have been the perpetrator.
      The state’s version of the facts has defendant deposited at his home sometime prior to the crime and then walking one-half mile to the victim’s car and committing the crime he is charged with.
      Considering these opposing theories it is clear that the evidence sought through the out-of-parish subpoena duces tecum was essential to a fair determination of a relevant issue in the case.


author: DIXON, Justice. SANDERS, Chief Justice

text:
    Mrs. Vera Ruppel BAUMGARTNER, Mrs. Shirley Baumgartner McDonald and Henry H. Baumgartner, Jr., Individually and for and on behalf of Henry H. Baumgartner, Deceased and his Estate, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 60210.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Dissenting Opinion March 1, 1978.
    Rehearing Denied March 15, 1978.

      Frank W. Lagarde, Jr., Connolly, La-branche & Lagarde, New Orleans, for plaintiffs-applicants.
    Harvey L. Strayhan, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for defendants-respondents.
   DIXON, Justice.

Writs were granted in this case to review a judgment of the Court of Appeal reversing the trial court. Plaintiffs are the survivors of a pedestrian who died one month after receiving injuries when he was hit by a car driven by William N. Morgan. The trial judge granted judgment for the plaintiffs. The Court of Appeal found both decedent and defendant negligent, found that the defendant did not have the last clear chance, and held that the plaintiffs were barred from recovery by the decedent’s negligence. Baumgartner v. State Farm Mutual Auto. Ins. Co., 346 So.2d 277 (4th Cir. 1977).

Trial began June 5, 1976. The accident occurred October 9, 1971, a few minutes after 7:00 p. m., at the intersection of Canal Boulevard and French Street in New Orleans. Morgan was driving a 1970 Chevrolet lake bound on Canal Boulevard, with a passenger, Mrs. Curtis. Mr. Baumgartner, wearing dark clothing and a light colored hat, was crossing from the easterly to the westerly side of the north bound lane of Canal Boulevard. It was dark enough for headlights and street lights to be turned on. Morgan said when he was in the area of the intersection he saw Baumgartner close to the middle of the street, crossing from Morgan’s right to his left, walking normally, carrying a paper bag. Mrs. Curtis said she saw Baumgartner at the moment Morgan applied the brakes, and was thrown to the floor by the force of deceleration of the car.

Both Morgan and Mrs. Curtis said Baum-gartner was about 15 feet ahead of the car when they first saw him in the pedestrian crosswalk. Morgan’s estimate of distance is probably in error; the police, in measuring Morgan’s skid marks, noted that one was 46 feet long, ending about a car length beyond the 11 foot crosswalk. Morgan’s speed was pretty well established at 30 mph, or 44 feet per second. In the normal reaction time, /t second, he would have traveled about 33 feet before skidding 20-30 feet into the crosswalk. The precise point of impact was not determined, but Morgan was in his left lane during the entire time, next to the neutral ground. Baumgartner was struck by the front of Morgan’s car, hit the windshield and slid off the hood onto the neutral ground when the car stopped.

Baumgartner did not remember anything about the accident. There were no other witnesses to the accident. An expert accident investigator testified for the plaintiffs; both sides and the Court of Appeal relied on his findings (he performed tests to establish Morgan’s speed and a “co-efficient of friction,” and made examinations and measurements of the accident scene) but reached different conclusions. The expert testified that Baumgartner would not be considered a danger until he had traversed about 6 of the 28 foot width of Canal Boulevard, and could, at that point, have been easily seen by a motorist approaching approximately 200 feet distant. He also testified that Morgan could have come to a full still stop 115 feet from impact or could have avoided the accident merely by slowing down.

Baumgartner was carrying a purple K & B bag containing a bottle of Coca-Cola syrup and a bottle of whiskey. The whiskey bottle was broken in the accident and was empty, but the seal on the bottle had also been broken. There was evidence of the odor of alcohol on Baumgartner’s breath and medical testimony about a history of alcohol consumption which complicated the diagnosis with the possibility of alcoholic withdrawal symptoms. Morgan testified that Baumgartner gave no evidence of having seen the approaching automobile, in spite of the noise of brakes and horn.

The trial judge found that Morgan had the last clear chance to avoid the accident but failed to see what he could or should have seen or take evasive action.

A majority of the appellate court apparently found the trial court’s factual conclusions to be erroneous. Relying upon the expert’s testimony as did the trial court, and, using mathematical formulae, the court determined that Baumgartner would have been a foot or two to the right of Morgan’s traffic lane at the time when Morgan became unable to stop in time to avoid the accident. Therefore, the court concluded, Baumgartner could have halted his progression into Morgan’s path. Thus, the decedent, and not Morgan, had the last clear chance to avoid the accident, and decedent’s own contributory negligence barred plaintiffs’ recovery.

The dissenting judges of the Court of Appeal determined that Baumgartner was somewhat intoxicated at the time of the accident and was unaware of his peril and, due to his condition, was unable to extricate himself to avoid the collision. Hence, the dissenters reasoned, Baumgartner did not have a last clear chance as found by the majority of the court.

The last clear chance doctrine, as applied in Louisiana, has been explained:

“ . . . [T]hough the plaintiff may have been guilty of negligence which may in fact have contributed to the accident, yet if the defendant could in the result of the exercise of ordinary care and diligence have avoided the mischief which happened and did not do so, then the plaintiff’s negligence will not excuse the defendant and the defendant’s last negligence renders him responsible.” Stone, 12 Louisiana Civil Law Treatise: Tort Doctrine § 58(e) (1977). (Emphasis added by author).

The last clear chance doctrine was created to escape the harsh effects of the contributory negligence defense which operates, in its strict application, as an absolute bar to a plaintiff’s recovery. However, certain limitations on a plaintiff’s reliance on the doctrine began to appear. In some cases the courts would deny recovery where the defendant’s negligence preceded that of the plaintiff; in other words, where defendant did not in fact have the last chance to avoid the accident. Plaintiffs also were often denied recovery where their negligence was concurrent with the defendant’s negligence and continued to the point of injury.

Courts later began to ignore the continuing negligence limitation. In Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936), a pedestrian whose negligence continued up to the time of the accident was allowed to recover where the defendant motorist had actually discovered plaintiff’s perilous position and could have avoided injuring her by acting immediately upon such discovery. The theory upon which Rottman was based became known as the “discovered peril” doctrine. Rottman was extended further in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938), which introduced the “apparent peril” doctrine. In Jackson a motorist who did not see the plaintiff pedestrian’s peril but should have (if he had kept a sharp lookout ahead) was held liable for the damages incurred. The court held that plaintiff’s own negligence would not preclude his recovery where defendant either appreciated plaintiff’s peril or should have with the exercise of reasonable care and attention at a time when he could have prevented the injury.

The Court of Appeal in the instant case based its conclusion on the fact that Baum-gartner had the last opportunity to avoid the collision. Defendant was negligent in failing to see Baumgartner crossing the street from a distance at which he could have stopped. But this negligence was pri- or in time to Baumgartner’s negligence in stepping into the Morgan vehicle’s path when the former could have stopped his progression and avoided being struck.

We find that the evidence does not establish that Baumgartner was drunk at the time of the accident or intoxicated to the extent that his mental faculties were affected so that he was incapable of removing himself from the path of the approaching vehicle. It is clear, however, that Baumgartner, who continued to walk at the same stride with his head down, was oblivious to the vehicle bearing down on him with brakes screeching and horn blaring. The Court of Appeal’s application of mathematical formulae to conclude that Baum-gartner had the last opportunity to avoid the accident might not have been incorrect. It should not, however, have barred his recovery.

It is well settled in our jurisprudence that the first duty of those operating motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. Rottman v. Beverly, 183 La. at 955, 165 So. at 156. “ . . . [WJhat they can see they must see and in legal contemplation they do see; . their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.” Jackson v. Cook, 189 La. at 868, 181 So. at 197.

Our law imposes an additional burden upon motorists approaching a pedestrian crosswalk to use more than ordinary care to see what is ahead; they must expect that people may be crossing and be prepared for that possibility. In Mequet v. Algiers Mfg. Co., 147 La. 364, 84 So. 904 (1920), during the early history of automobile traffic, this court stated:

“ . . .On those portions of the highways, known to be used by such [motor] vehicles, between the points provided for the passage of pedestrians, the latter, in attempting to cross, do so in large measure at their peril, subject to the requirement that the drivers of such vehicles shall not knowingly or wantonly strike and injure them. But at the points provided for the passage of pedestrians they have the right to assume that the operators of such machines will observe that high decree of care imposed by the circumstances. . . . We do not mean by this that he [the pedestrian] is to be excused for failing to use his own senses to avoid being injured; but the greater duty and care rests upon those who use these dangerous agencies carrying such great possibilities of harm.” 147 La. at 367-68, 84 So. at 905. (Emphasis added).

See also Duffy v. Hickey, 151 La. 274, 91 So. 733 (1922); Prine v. Continental Southern Lines, 71 So.2d 716 (La.App. 2d Cir. 1954); Norwood v. Bahm, 14 La.App. 261, 129 So. 183 (1st Cir. 1930). And as the First Circuit stated in Woodard v. Burkes, 135 So.2d 333, 336-37 (La.App. 1st Cir. 1961):

“It is logical that the motorist, as against the pedestrian, bears the greater burden of careful lookout and extreme caution at locations provided for the passage of pedestrians; for it is the motorist who has the power, because of the dangerous instrument which he controls, to reduce the status of a pedestrian to that of a statistic in a split second. The pedestrian poses no such threat.”

The right of way of the pedestrian in a crosswalk is further provided by statute.

The courts of this State have often appeared to recognize a distinction between last clear chance cases involving a motor vehicle and a pedestrian from those involving two motor vehicles. In many cases a pedestrian has been permitted to recover, even though he might have had the last opportunity to avoid the accident by hopping out of the path of the oncoming vehicle in the nick of time. Perhaps these courts had in mind the fact that in motor vehicle-pedestrian cases there is lacking a “mutuality of risks.” That is, the operator of a dangerous instrumentality, such as a motor vehicle, creates a great risk of injury to the life and limb of others. Thus he owes a duty to the public to protect it from that danger. The pedestrian, on the other hand, endangers himself only, therefore his duty is owed primarily to himself. The motorist runs small risk of harm, physical or financial, from a pedestrian’s negligence.

Since the operator of a motor vehicle is aware that he could meet many emergencies in which pedestrians will not always act prudently and will sometimes be found in perilous situations, he should have the added burden of keeping the roads safe even for those who are negligently caught off their guard. Further, where injury results, the burden should fall on the motorist who, with the exercise of care reasonable under the circumstances, saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it.

Earlier this court, without expressly saying so, signaled an intention to abolish the contributory negligence defense in pedestrian-motorist cases. Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958). In Belshe, a motorist, who failed to keep a proper lookout and if he had done so would have avoided striking a pedestrian, was held liable. The court indicated that even if it were to find the pedestrian contributorily negligent, defendant would still be held liable.

What was implicit in Belshe became explicit in the more recent case of Guilbeau v. Liberty Mutual Ins. Co., 338 So.2d 600 (La.1976), where we said;

“Under Louisiana jurisprudence, an operator of a vehicle or heavy equipment who observes, or who should by the exercise of reasonable care have observed, a pedestrian in a position of peril of which the latter is apparently unaware, is responsible for injuries caused when his vehicle strikes the pedestrian in his path, despite any contributory negligence on the part of the latter; providing that, after the duty to make such observation arose, the operator could reasonably have avoided the accident.
See; Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La. 1973); Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958); Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936); Comment, 27 La.L.Rev. 269 (1967). See also: Leake v. Prudhomme Truck Tank Service, 260 La. 1071, 258 So.2d 358 (1972); Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968).” 338 So.2d at 604. (Emphasis added).

And again, in Pierre v. Landry, 341 So.2d 891 (La.1977), relying on the above quoted language from Guilbeau, this court held liable a motorist who failed to see what he should have seen and struck a pedestrian who was in a position of peril. The court spoke of defendant’s “clear chance” without referring to it as his last clear chance, further indicating the court’s intention to ignore whether the plaintiff or defendant had the final opportunity to avoid the accident in pedestrian-motorist cases.

Accordingly, we hold that the doctrine of “last clear chance” has no application in absolving a motorist from liability when he negligently strikes a pedestrian. In the city a motorist is obligated to maintain a lookout for pedestrians at crosswalks at all times. If he fails to see a pedestrian in a position of peril when he should have, the motorist is at fault and is responsible. A motorist who could have avoided injury to a pedestrian by the exercise of care which is reasonable under the circumstances is at fault, and is responsible. The motorist cannot escape liability by proving that the pedestrian, admittedly in peril because of his own negligence, could have avoided injury more quickly than the motorist. The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Therefore, he should not be able to escape responsibility for injury to the pedestrian by pleading the latter’s negligence. And since, in such case, a plaintiff’s contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue.

It must be noted, however, that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.

In the instant case, Morgan could and should have discovered Baumgartner’s peril early enough to have avoided hitting him. From a distance of at least 200 feet, and with an unobstructed view, Morgan should have seen Baumgartner crossing the street in a crosswalk, apparently unaware of the Morgan vehicle’s approach. Morgan would then have realized the likelihood that decedent would continue his course of action so as to soon be in a position of peril. His failure to so discover Baumgartner at a time when the former could have avoided the injury by slowing, attempting to gain decedent’s attention by honking, or by changing lanes constituted fault and entitled the plaintiffs to recovery despite Baumgartner’s later negligence in continuing into Morgan’s lane of travel.

Defendants cite several cases in which the plaintiff pedestrian was denied recovery and argue that these cases are controlling. We find three of defendants’ cases distinguishable. Ritter v. Southern Farm Bureau Cas. Ins. Co., 321 So.2d 46 (La.App. 3d Cir. 1975), writ refused, 325 So.2d 586 (La.1976); Comeaux v. State Farm Mutual Auto. Ins. Co., 231 So.2d 674 (La.App. 1st Cir. 1970), writ refused, 256 La. 69, 235 So.2d 96 (1970); St. Amant v. Travelers Ins. Co., 233 So.2d 23 (La.App. 4th Cir. 1970). In all of the above cases, the motorist was not negligent since he discovered the pedestrian as soon as it was possible for him to do so, and did all in his power to avoid the collision. We expressly disapprove of Ortego v. State Farm Mutual Auto. Ins. Co., 295 So.2d 593 (3d Cir. 1974), writ refused, 299 So.2d 800 (1974), insofar as it conflicts with this decision. Ortego held that the pedestrian had the ability to get out of the way of defendant’s car before it reached him and therefore he, and not the motorist, had" the last clear chance.

Plaintiffs contend that the trial court’s award of damages was inadequate and should be increased by this court. Plaintiffs were awarded a total of $31,-288.17 plus court costs and expert witness fees. This amount included a $15,500 award against State Farm and a $15,788.17 award against Morgan individually. Plaintiffs have not made a clear showing that the trial court abused the great discretion vested in it. See Anderson v. Welding Testing Laboratory, 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La. 1974); Fox v. State Farm Mutual Auto. Ins. Co., 288 So.2d 42 (La.1974). Therefore, we will not modify the award.

For the reasons assigned, the judgment of the Court of Appeal is reversed and the trial court judgment is reinstated; costs of appeal to be borne by defendants.

SANDERS, C. J., dissents and will assign written reasons.

SUMMERS and MARCUS, JJ., concur.

SANDERS, Chief Justice

(dissenting).

As I understand the majority opinion, it abolishes the defense of contributory negligence in suits by pedestrians against motorists for injuries. Thus, the decision represents major surgery upon the law of Louisiana.

As support for the decision, the majority cites Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958), opining that the decision signaled an intention to abolish contributory negligence in such cases. My examination of this 1958 decision discloses that the doctrine of last clear chance was applied.

The majority also relies upon the “humanitarian doctrine” of Missouri. Under that doctrine, an automobile is treated as a dangerous instrumentality, and the operator is charged with knowledge of a pedestrian’s peril whether he actually saw it or not. The majority approves the doctrine “in its application to pedestrian-motorist cases.” See fn. 6.

The “humanitarian doctrine” has been widely criticized as an “obvious fiction.” No other state has adopted it.

In commenting upon the doctrine, Dean William L. Prosser states:

“It appears to have begun as a distinction between a defendant operating a dangerous machine, such as a railroad train or an automobile, and a plaintiff who was not, and to have become transformed instead into a doctrine favoring the plaintiff where both parties were equally, and similarly, at fault. Unquestionably it represents an attempt to stress the greater importance of human safety over the convenience and financial interests of defendants; but its application has been marked by such great confusion, and so many appeals, that no other court has been tempted to follow the Missouri cases.” W. L-. Prosser, Law of Torts, 4th ed. 1971, p. 432.

It is difficult for me to understand the validity of a holding that an automobile driver has a higher duty of care to protect a pedestrian than a pedestrian has to protect himself. In any event, if there is to be a major revision of the law, it should be based upon a careful study of the entire field of delictual responsibility followed by legislative action. The approach in the present case is not in the public interest.

For the reasons assigned, I respectfully dissent.

On Motion For Rehearing

PER CURIAM.

In our original opinion we reversed the judgment of the Court of Appeal in favor of defendants and reinstated a trial court judgment in favor of plaintiffs.

State Farm Mutual Automobile Insurance Company has applied for rehearing. That application is denied. The applicant does however point out an error in the judgment of the district court which by our opinion we reinstated. State Farm’s policy covering William N. Morgan contained liability insurance with limits of $15,000 and medical payments coverage in the sum of $500 per person. The trial judge awarded plaintiff $31,288.17 plus court costs and expert witness fees, $15,500 of which was awarded against Morgan and the insuror State Farm.

Applicant points out that coverage C, medical payments, part II of the policy, is by its terms not made available to a claimant such as the pedestrian deceased in this case for, pertinently, he was not “occupying” the owned automobile. For this reason we amend our original decree by reinstating the judgment of the trial court in all particulars except that the award against State Farm is and shall be limited to $15,000.

We reverse to plaintiff s-relators the right to apply for further rehearing within the legal delay, the application to be limited to issues pertaining to the amendment herein of our original decision.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., would grant a rehearing.

      . The doctrine arose out of a mid-nineteenth century English case. Davies v. Mann, 10 M. and W. 546 (Court of Exchequer 1842). It was first recognized in Louisiana in 1894. McGuire v. Vicksburg, S. & P. R. Co., 46 La.Ann. 1543, 16 So. 457 (1894).

      . See Comment, “The Last Clear Chance Doctrine in Louisiana — An Analysis and Critique”, 27 La.L.Rev. 269, 276-83 (1967), for a more detailed history of the doctrine’s development in Louisiana.

      . R.S. 32:212(A) provides:
      “When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a cross-walk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching closely from the opposite half of the roadway as to be in danger.” See also Ordinances of the City of New Orleans, § 38-176. Compare R.S. 32:213(A) which provides:
      “Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersetion shall yield the right of way to all vehicles upon the roadway.”
      See also Ordinances of the City of New Orleans, §§ 37-179, 180.
      Defendants argue that R.S. 32:212(B) applies and would bar the plaintiffs’ recovery in the instant case. It reads:
      “No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.”
      When Baumgartner left the curb of Canal Boulevard Morgan was more than 200 feet away. Baumgartner had already crossed 25 feet of the 28 foot roadway when struck. Had Baumgart-ner been aware of Morgan’s approach he could reasonably have assumed that Morgan would have slowed and yielded the right of way upon seeing Baumgartner crossing within the crosswalk. Had Morgan seen Baumgartner crossing when he should have seen him he would have noticed Baumgartner’s obvious intention of proceeding into Morgan’s path. In any event, while Baumgartner did have the right of way he was negligent in continuing into Morgan’s path at a time when Morgan was no longer able to stop. This, however, as expressed more fully within, does not bar the plaintiffs’ recovery.

      . See, e. g., Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958); Taylor v. Kendall, 162 So.2d 156 (La.App. 3d Cir. 1964); Ingram v. McCorkle, 121 So.2d 303 (La.App. 1st Cir. 1960); Deck v. Page, 77 So.2d 209 (Orl.La.App.1955); Prine v. Continental Southern Lines, 71 So.2d 716 (La.App. 2d Cir. 1954); Moore v. NOLA Cabs, 70 So.2d 404 (Orl.La.App.1954); Breaux v. Barichnivich, 49 So.2d 651 (La.App. 1st Cir. 1950). Indeed these decisions even appeared to ignore the idea of last opportunity.

      . See Comment, supra note 1, at 275-76, exploring this concept. See also 2 Harper and James, The Law of Torts 1256 (1956); Green, “The Duty Problem in Negligence Cases: II,” 29 Colum.L.Rev. 255, 278 (1929); Green, “Contributory Negligence and Proximate Cause,” 6 N.C.L.Rev. 3, 31-32 (1927).

      . A similar theory has been employed in Missouri in what is called the “humanitarian doctrine.” By that doctrine the last clear chance rule was extended by charging the operator of a dangerous instrumentality with knowledge of a pedestrian’s peril, whether he actually saw it or should have seen it. Thus, the motorist must exercise the highest degree of care rather than ordinary care, as is the usual case. See Gaines, “The Humanitarian Doctrine in Missouri,” 20 St. Louis L.Rev. 113 (1935). The doctrine, in its original conception, represented an attempt to stress the greater importance of human safety over the convenience and financial interest of defendants. It has since been extended beyond its primary intention to encompass collisions between two automobiles. Prosser, Handbook of the Law of Torts 431-32 (1971). We approve of the doctrine in its application to pedestrian-motorist cases.

      .Professor Wex S. Malone, in commenting on this case, stated:
      “. . The decision suggests to this writer that in pedestrian cases, at least, we have placed the contributory negligence of the pedestrian on the shelf whenever the alleged carelessness of the motorist is his failure to make a reasonable adjustment to the emergency situation before him. . . .”19 La.L.Rev. 334, 340 (1959).

      . Although we find the last clear chance doctrine inapplicable to the instant case we take this opportunity to express our disapproval of a concept first introduced into Louisiana jurisprudence by this court in Bergeron v. Department of Highways, 221 La. 595, 60 So.2d 4 (1952). Relying on the authority of American Jurisprudence and quoting from it, we stated that the doctrine of last clear chance is a “two-edged sword, applicable equally to the rights of a defendant and those of a plaintiff.” 60 So.2d at 8. Since the last clear chance doctrine was originally intended as an escape from the effects of contributory negligence on the part of plaintiff, it is doubtful that last clear chance was intended to be a weapon in the hands of defendant. In any event, the concept of last chance should not be taken literally where a mutuality of risks is lacking.


author: MARCUS, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Charles M. STEVENSON.
    No. 58661.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.
    John B. Scofield, Chairman, Lake Charles, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Henry A. Politz, Shreveport, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, Thomas O. Collins, Jr., Executive Counsel, New Orleans, for petitioner (relator), Louisiana State Bar Association.
    Arthur A. Lemann, III, New Orleans, for respondent.
   DISCIPLINARY PROCEEDINGS

MARCUS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Re-spousibility, instituted this disciplinary proceeding against Charles M. Stevenson, a member of said association. The Committee’s petition for disciplinary action is based upon respondent’s final conviction resulting from a plea of guilty to the crime of credit card fraud in violation of the Consumer Credit Protection Act, 15 U.S.C. § 1644(a), and 18 U.S.C. § 2.

On April 8, 1976, Charles M. Stevenson was indicted in the United States District Court for the Eastern District of Louisiana, New Orleans Division, on two counts of violating the Consumer Credit Protection Act, 15 U.S.C. § 1644(a), and 18 U.S.C. § 2. On May 3, 1976, a plea of guilty was entered to count two of the indictment which charged in pertinent part:

From on or about October 9, 1975, and continuously thereafter until on or about November 10, 1975, in the Eastern District of Louisiana, CHARLES M. STEVENSON and a person who is unknown to the Grand Jury, in a transaction affecting interstate commerce, did willfully, knowingly and unlawfully use a Ban-kAmericard credit card fraudulently obtained from Ildefonso R. Gonzalez, a client of the said CHARLES M. STEVENSON, to obtain goods, services and other things of value which within the calendar year 1975 had a value aggregating in excess of $1,000, all in violation of Title 15, United States Code, Section 1644(a) and Title 18, United States Code, Section 2.

Count two of the indictment listed each of the various charges on the BankAmericard which totaled $1,083.41. On motion of counsel for the government, count one (based upon charges totaling $1,042.79 on a Master Charge credit card) was ordered dismissed. Following conviction resulting from his plea of guilty to count two, respondent was sentenced to imprisonment for a period of three years, three months of which he was ordered to serve in a “jail type institution.” Execution of the balance of the sentence was suspended, and respondent was placed on probation for a period of two years and nine months. As a special condition of probation, respondent was suspended from the practice of law until further orders of the court.

Based upon respondent’s conviction of the aforesaid crime and its determination that the crime of which respondent had been convicted constituted a “serious crime” reflecting upon his moral fitness to practice law, the Committee on Professional Responsibility filed a petition in this court on September 27, 1976, seeking an order suspending respondent from the practice of law and ordering the Committee to institute the necessary disciplinary proceedings. Moreover, respondent’s conviction had become final. On September 28, 1976, this court granted the requested order.

Subsequently, on October 8, 1976, the Committee filed a petition in this court seeking disciplinary action against respondent under the provisions of Article 15, section 8, paragraph (7)(a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association. Respondent filed an answer denying that he was morally unfit to practice law. After issue was joined by respondent’s answer, a Commissioner was appointed by this court. A hearing was conducted on January 31, 1977, at which respondent was afforded full and unrestricted opportunity to present any and all evidence of “mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted .." In the formal report of the Commissioner to this court, it is stated that the Commissioner found the offense for which respondent was convicted to be a felony under federal law involving moral turpitude and constituting a “serious crime” warranting disciplinary action, the only question being as to the extent of such discipline. The Commissioner recommended discipline “up to and including disbarment”; however, he specifically recommended against suspension for a determinate period of time as the record did not indicate when respondent would be able “emotionally and morally” to reenter the practice of law. The Commissioner stated that the burden of demonstrating his ability to resume the practice of law should be placed upon respondent. The Committee on Professional Responsibility filed its concurrence to the report of the Commissioner. An exception was filed by respondent to the report of the Commissioner. The matter was then submitted to this court under our original jurisdiction.

The sole issue to be determined by this court in a disciplinary proceeding based on a conviction of a crime is whether “the crime warrants discipline, and if so, the extent thereof.” Article 15, section 8, paragraph (7)(d) of the Articles of Incorporation of the Louisiana State Bar Association; Louisiana State Bar Association v. Hennigan, 340 So.2d 264 (La.1976).

At the hearing before the Commissioner, respondent introduced evidence of mitigating circumstances.

Respondent is thirty-five years of age and a native of Texas. His mother and father were divorced when he was three years of age. His mother has remarried three or four times. Respondent has been on his own since the age of sixteen. He attended Louisiana State University and received his law degree from Loyola University School of Law in 1968, working his way through school. After graduation from law school, he worked as an insurance adjuster for two and a half years with Hartford Insurance Company. Thereafter, respondent entered the private practice of law in Metairie, Louisiana. He served as an officer of the Jefferson Parish Bar Association for two years. Respondent was married at the age of twenty which marriage ended in a divorce after thirteen years. One child was adopted during this marriage. He has since remarried; one child has been born as a result of his second marriage. Respondent testified concerning his marital problems and emotional state during the time of his criminal conduct. He professed contrition for the crime and a desire to reenter the practice of law.

Dr. Oliver Sanders, Jr., a psychiatrist, testified on behalf of respondent. He stated that respondent first consulted him on January 15, 1976, about emotional problems and that he and his wife, a psychiatric social worker, treated respondent until June 10, 1976. Dr. Sanders diagnosed respondent’s condition as “a depersonalization neurosis which is a mild form of . multiple personality.” He stated that he believed relator’s criminal conduct was caused by this neurosis. Dr. Sanders further testified that respondent again consulted him on January 18,1977 after having served the three-month prison sentence. He stated that there was still a danger that respondent might again lapse into antisocial behavior. He opined that it might be advisable for respondent to avoid the private practice of law for a period of time because it is “very stressful” and suggested that he wait “until he has matured more” and then come before the Committee and “produce evidence that he could handle that type of pressure.”

The Committee produced no countervailing evidence on the issue of mitigation.

First, we agree with the finding of the Commissioner, concurred in by the Committee, that respondent has been convicted of a serious crime which reflects adversely upon his moral fitness to practice law. Hence, disciplinary action is warranted. Nevertheless, after reviewing the evidence of mitigating circumstances as set forth above, we do not find that respondent should be disbarred. Rather, we consider that respondent should be suspended from the practice of law for a period of three years from the date of this decree; however, reinstatement will not be automatic. Respondent may apply for reinstatement after the lapse of the three-year period; and such application shall be granted by this court, after due proceedings, upon a clear showing by respondent that he is emotionally able to resume the practice of law. Absent reinstatement by this court, respondent’s suspension to practice law shall continue in effect.

DECREE

For the reasons assigned, it is ordered, adjudged and decreed that Charles M. Stevenson be suspended from the practice of law in Louisiana for a period of three years from the date of this decree; however, reinstatement will not be automatic. Respondent may apply for reinstatement after the lapse of the three-year period; and such application shall be granted by this court, after due proceedings, upon a clear showing by respondent that he is emotionally able to resume the practice of law. Absent reinstatement by this court, respondent’s suspension to practice law shall continue in effect.

      .15 U.S.C. § 1644(a) provides:
      Whoever knowingly in a transaction affecting interstate or foreign commerce, uses or attempts or conspires to use any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain money, goods, services, or anything else of value which within any one-year period has a value aggregating $1,000 or more . shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
      18 U.S.C. § 2 provides:
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

      . This action was taken under the provisions of Article 15, section 8, paragraphs (1) through (6) of the Articles of Incorporation of the Louisiana State Bar Association.

      . Article 15, section 8, paragraph (7)(a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association provide:
      (7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
      (a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
      (b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
      (c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
      (d)At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.

      . La.Const. art. 5, § 5(B) (1974).