text:
    Leonce HERNANDEZ v. COMCO INSURANCE COMPANY.
    No. 8960.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.

      Law Offices of Sidney D. Torres, III, George N. Bischof, Jr., Chalmette, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, E. Ross Buckley, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   GARSAUD, Judge.

■Defendant Comeo Insurance Company appeals from a judgment of the trial court awarding to plaintiff, Leonce Hernandez, Sr., $25,000 in damages for burns sustained by him in a backyard accident resulting from an explosion of crawfish boiling equipment. The accident occurred at the home of Leonce (Lonnie) Hernandez, Jr.,, plaintiff’s son, on premises owned by Alvin Pel-legrini, Lonnie’s father-in-law. There is no question that the sole cause of the accident was the alleged negligence of Lonnie Hernandez. Comeo Insurance Company had issued to Alvin Pellegrini a homeowners policy providing coverage up to $25,000 for accidents of this type. The only issue presented in this case is whether the policy covered negligent acts of Alvin Pellegrini’s son-in-law, Lonnie Hernandez.

This matter arose due to the special circumstances of geography and relationships of the parties. Mr. Pellegrini and his wife resided at 1210 Friscoville Avenue in Arabi, Louisiana, on a lot which they owned and on which was also located a second structure, designated as 1210V2 Friscoville Avenue, in which the Pellegrinis’ daughter Brenda lived with her husband Lonnie Hernandez and their young child. This building in which the young Hernandezes lived was an entirely separate structure from the Pellegrinis’ home. It had been built many years before by the Pellegrinis to provide an inexpensive home for their children when they first married. This house had previously been used successively by two Pellegrini sons and their wives before Brenda and Lonnie Hernandez moved in. Lonnie, with the help of Mr. Pellegrini, constructed an additional bedroom so that the structure consisted of kitchen, living room, bathroom, and two bedrooms.

Lonnie and Brenda Hernandez were • married in 1969 and lived in the house known as I2IOV2 Friscoville from then until some time after the accident in 1973. They paid their own utilities (electricity was on a separate meter from the Pellegrinis’), purchased their own groceries, cooked their own meals, and did their own laundry. In effect, they had a separate and distinct existence qua family from the Pellegrinis. Occasionally one of them would help out the Pellegrinis either in the house or in the yard, and Mrs. Pellegrini regularly kept their child during the day without compensation. The only rent paid by the young Hernandezes to the Pellegrinis was $50 a month, or almost enough to cover the monthly note payment of $52.41, which included insurance.

As the Pellegrinis were away from home at the time of the accident, and the accident was not due to any negligence on either of their parts, coverage under defendant Com-co’s homeowners policy issued to Alvin Pel-legrini obtains only if Lonnie Hernandez is an insured under the terms of that policy.

The policy of insurance issued by defendant Comeo to Alvin Pellegrini provides in Section II, Coverage E, as follows:

“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury . . .”

Definitions applicable for this policy are found in paragraph 8 under General Conditions. “Insured” is there defined as,

“(1) the Named Insured stated in the Declarations of this policy;
(2) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured; . . .."

Thus, in order to be an insured under this Policy, Lonnie Hernandez must be a “relative” of Mr. or Mrs. Pellegrini and a resident of their “household.”

Concluding that Lonnie is a “relative” of the Pellegrinis is not difficult. Webster’s Third New International Dictionary (1971) defines a relative as “a person connected with another by blood or affinity,” and Black’s Law Dictionary uses the same definition. This definition has been specifically adopted in Liprie v. Michigan Millers Mutual Insurance Company, 143 So.2d 597 (La.App. 3rd Cir. 1962), cert. denied October 5, 1962.

It further appears that as a general rule, when the word “relative” is used in insurance contracts it is intended to include persons related by marriage as well as by blood. 76 C.J.S. Relative pp. 623-625 (1952). As a relative, therefore, Lonnie Hernandez will be classified as an insured if he was also a resident of the Pellegrini household.

The problem of defining the word “household” has been faced by innumerable courts with no clear or easy resolution. See 19A Words and Phrases Household (West 1970). Ultimately, whether a person is a member of a given household is a question of fact, to be determined after consideration of all the circumstances.

Webster’s Third New International Dictionary (1971) defines “household” as “those who dwell under the same roof and compose a family; a domestic establishment; specifically, a social unit comprised of those living together in the same dwelling place.” .Black’s Law Dictionary (4th ed. 1957) defines it as “a family living together; those who dwell under the same roof and compose a family.” However, living technically “under the same roof” has been found not to be essential. See Taylor v. State Farm Mutual Auto Ins. Co., 248 La. 246, 178 So.2d 238 (La.1965); Vinet v. Hano, 281 So.2d 183 (La.App. 4th Cir. 1973), writ refused October 12, 1973; Fidelity and Casualty Company of New York v. Jackson, 194 F.Supp. 431 (E.D.N.C.1961) and citations therein.

Perhaps the most appropriate definition of “household” was set forth by the court in Leteff v. Maryland Casualty Co., 91 So.2d 123 (La.App. 1st Cir. 1956):

“Whether the term ‘household’ or ‘family’ is used, the term embraces a collection of persons as a single group, with one head, living together, a unit of permanent and domestic character, under one roof; a ‘collective body of persons living together within one curtilage, subsisting in common and directing their attention to a common object, the promotion of their mutual interests and' social happiness.’ ” 91 So.2d at 130.

The pattern which emerges from the myriad of decisions considering the term “household” seems to be an emphasis on dwelling as a family under one head. Here there existed two distinct families, dwélling apart. The testimony in the record discloses that all parties involved considered themselves as two independent family units. Clearly, Mr. Pellegrini was not the head of Lonnie Hernandez’ household, nor were Lonnie Hernandez and his wife part of the Pellegrini household. This is the same conclusion reached by the trial court and we believe there is substantial evidence in the record to support his conclusion, which will not be upset. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

As Lonnie Hernandez is not a relative in the household of the insured (Alvin Pelle-grini), he does not fall within the definition of “insured” for whose negligence the policy will pay for resulting damages for personal injuries. As the trial court nonetheless found coverage in spite of its finding that Lonnie Hernandez was not a member of the household, we must reverse and dismiss the claim of Mr. Leonce Hernandez, Sr.

REVERSED & DISMISSED.


source: Caselaw Access Project

author: GULOTTA, Judge. STOULIG, Judge,

license: Public Domain

text:
    Lorraine S. Prevost, wife of/and Edmond G. PREVOST v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 8975.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Writ Refused June 2, 1978.
    Badeaux, Discon, Cumberland & Barbier, Carl J. Barbier, New Orleans, for plaintiffs-appellees.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   GULOTTA, Judge.

Defendant complains, on appeal, that a $300,000.00 jury award is excessive. We affirm.

Based on the medical and actuarial testimony, a jury could have reasonably concluded: 1) that lower back nerve root irritation was causally related to injuries sustained in a bus accident; 2) that the injuries were permanent in nature; 3) that because of chronic pain, resulting from the injury, plaintiff was unable to continue to be gainfully employed; 4) that a 34-year-old plaintiff with a work-life expectancy of 26.3 years who was earning between $13,-000.00-$14,000.00 per year, had sustained loss of future earnings ranging from approximately $200,000.00-$400,000.00 depending on discount and cost-of-living factors. The evidence supports these conclusions. Under the circumstances we cannot say the jury award was excessive. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Defendant does not quarrel with the jury charges or cite any trial irregularities. Accordingly, the judgment is affirmed.

AFFIRMED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I concur in the majority opinion for the reasons therein stated.

In my opinion this case is a classic illustration of one of the glaring deficiencies in our civil jury trial procedures — the failure to require that specific interrogatories be propounded to the jury to elicit from them the specific awards for general and for special damages. In the instant case, the jury verdict of $300,000 is an aggregate award without any specific allocation for the general damages of pain and suffering and the special damages of the loss of the future income based upon a $13,000 annual salary with a work life expectancy of 26.3 years.

Neither this court nor counsel for the litigants can, with any degree of reasonable certainty, apportion the award for general and for special damages as determined by the jury since this information is not available. The defendant-appellant, who maintains that the award is excessive, must now tilt against the windmills of speculation in trying to have this court reduce the same.

The deficiency in the system represented by this lack of information is indeed a most serious one in reviewing the assessment of damages since the norm or standard in determining both general damages and special damages are radically different. Great discretion vests in the jury or trial judge in awarding general damages for pain and suffering, etc.; however, special damages are based upon actual expenses or losses and the projection of these continuing expenses as losses in the future. Thus one damage falls within the discretion of the trier, whereas the other is based upon actual facts and circumstances.

And in connection with the loss of future wages or for future medical expenses, the award of damages projected over the period of disability or life expectancy should be discounted or adjusted by a reasonable rate of return which could be realized by its conservative investment based upon prevailing market conditions at the time of its award. This adjustment is necessary because the pre-payment of the párticular anticipated special damage is made immediately upon the finality of judgment, whereas in fact the right to such wages would normally accrue or be payable in successive years in the future over a like period of time.

To do otherwise in those instances where the work life expectancy is of _ sufficient duration (as in this case 26.3 years), if no adjustment is made the claimant by conservative investment of the mass amount awarded could earn sufficient interest or income in excess of her annual salary and at the conclusion of her life work expectancy would still have the principal of the mass amount awarded still intact. The tort law of this State and the jurisprudence interpreting the same never contemplated such a result.

      . Medical experts who testified in support of plaintiffs’ position included Dr. Kenneth Adat-to, plaintiff’s treating orthopedic surgeon, and Dr. Raeburn Llewelyn, a neurosurgeon. The jury also heard the testimony of Dr. Claude S. Williams, an orthopedic surgeon who examined plaintiff at defense counsel’s request.

      . An expert economist, Melville S. Wolfson, testified regarding plaintiff’s loss of wages.

      . Dr. Wolfson relied on U.S. Department of Labor tables to arrive at this work-life expectancy. We find no merit to defendant’s contention that the economist should have used the American Experience Table of Mortality set forth in LSA-R.S. 47:2405. The statute suggested by defendant pertains to evaluation of annuities or usufructs in legacies. In Triche v. Commercial Union Insurance Company, 329 So.2d 784 (La.App. 1st Cir. 1976), relied on by defendant, the actuarial expert’s use of the U.S. Department of Labor table was accepted by the court.


author: BOUTALL, Judge.

text:
    Wilbert PARKER, Individually and on behalf of his minor daughter, Patrice Junius v. SINCLAIR AND WARD REALTY COMPANY, Lois Yaeger and United States Fidelity and Guaranty Co.
    No. 8983.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Orlando G. Bendana, New Orleans, for Wilbert Parker, plaintiff-appellant.
    Daniel R. Martiny, of Edwards, Porteous & Lee, Gretna, for Lois Yaeger, defendant-appellee.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

Wilbert Parker sued Lois Yaeger and others for damages arising out of an intersec-tional collision. The trial court found Yae-ger to be negligent and Parker to be con-tributorily negligent, dismissing his suit. He appeals. The only issue before us is the contributory negligence of Parker.

Parker was driving his automobile westerly on the West Bank Expressway in Gret-na and stopped in obedience to a red traffic light at its intersection with Terry Parkway. Yaeger, who had been stopped on Terry Parkway waiting for a light change, proceeded across the intersection behind other vehicles, and as she attempted to cross the far lanes of the expressway, Parker started his vehicle up and collided with her right side. The cause of the collision revolves about the operation of the traffic semaphore which was determined to be changing at a rate more rapid than its normal sequence. Yaeger claims she was properly in the intersection, having started on the green light, the light having turned yellow as she neared the median of the expressway, and was entitled to proceed across the westerly lanes to clear the intersection. As opposed to this, Parker contends that he looked both ways at the intersection to make sure that it was clear, that the vehicle to his left proceeded across, and then he proceeded across, that Yaeger approached rapidly from the left and struck his vehicle.

The resolution of this issue depends largely upon the credibility of the witnesses, and the trial court in his reasons for judgment relied mainly upon the sequence of events as related by Yaeger, and stated that Parker did not discharge his duty to look and see that the intersection was clear. We agree with the findings of the trial judge. The testimony of Parker as to how the collision happened is contrary to the physical facts of damages on the automobiles involved. Additionally, it seems improbable, under his testimony, that the Yae-ger vehicle would have missed the automobile Parker places ahead of him in the left lane and be able to strike Parker on the side as he related.

LSA-R.S. 32:232(l)(a) requires a vehicle facing the green signal, before starting into that intersection, to yield the right of way to other vehicles lawfully within the intersection. See also Potts v. United States Fidelity & Guaranty Company, 135 So.2d 77, (La.App. 2d Cir. 1961); and McMullan v. Travelers Insurance Company, 311 So.2d 902 (La.App. 2d Cir. 1975). We affirm the ruling appealed from.

AFFIRMED.


author: BEER, Judge. LEMMON, Judge, SCHOTT, Judge,

text:
    Valco CRUMP v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and National Gypsum Company.
    No. 9050.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Granted June 9, 1978.

      Ethel Harriet Cohen, Jefferson Heights, for defendants-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, Peter Frank Liberto, New Orleans, for plaintiff-appellee.
    Before LEMMON, SCHOTT and BEER, JJ.
   BEER, Judge.

Yalco Crump was employed by National Gypsum Company for twenty-eight years, the last twenty as a punch press feeder. He fed asbestos sheets (about two by four feet in size) into a punch press which cut and punched holes in them. On January 31, 1976, he retired in compliance with the company’s mandatory retirement policy, having reached the age sixty-five.

Several months following his retirement, Crump filed this suit against National Gypsum and its insurer, Hartford Accident and Indemnity Company, alleging that he had become totally and permanently disabled as a result of contracting asbestosis in the course of his employment. The trial court awarded total and permanent disability at the rate of $85.00 per week for a period of 500 weeks, plus all medical expenses up to the statutory maximum. No written reasons were given.

Defendants-appellants appeal, reurge their exception of prescription and strenuously contend that the trial court erred in concluding that Crump bore the burden of proving his alleged disability.

Appellant’s prescription contention lacks merit. La.R.S. 23:1031.1(E) (Supp. 1977) corresponds exactly with La.R.S. 23:1031.1(D) (as amended Acts 1958, No. 39, § 1), the pre-1975 amendment version. In interpreting the latter provision, our courts have consistently held, in cases of an occupational disease which gradually manifests itself, that knowledge on the part of the plaintiff that he has the disease is not sufficient, standing alone, to commence prescription. Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976); LaCoste v. J. Ray McDermott & Co., Inc., 250 La. 43, 193 So.2d 779 (1967); Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4th Cir. 1975), writ refused, La., 329 So.2d 760; Marcantel v. Gulf Coast Food Stores, Inc., 300 So.2d 566 (La.App. 3rd Cir. 1974), writ ref., La., 304 So.2d 668.

Appellants’ contention regarding proof of disability has merit notwithstanding the fact that there is no disagreement among the doctors, all of whom testified that Crump does, indeed, have asbestosis. His x-rays reveal “early manifestation of asbestosis;” his personal physician, Dr. Albert Bloom, diagnosed asbestosis; and Dr. Morton Brown, the defense medical witness, confirmed the existence of the condition. However, the record does not support the trial court’s conclusion that asbestosis has caused Crump to be permanently and totally disabled.

Dr. Bloom, who first saw him in 1971 (and, early on, diagnosed asbestosis), found, at that time, that Crump was in no distress, with lung capacity estimated by Dr. Bloom as close to normal. Other pulmonary test results were within normal limits. Crump was seen on a bi-monthly or monthly basis from 1971 through 1977, and, during that time, Dr. Bloom found no increase or progression in the disease. However, Crump did suffer, increasingly, from congestive heart failure, or cardiac decompensation, and was treated by Dr. Bloom for this condition throughout the period noted above.

Dr. Bloom discussed the disabling effect (or lack thereof) of the asbestosis as affecting Crump’s ability to work and concludes that cardiac decompensation and, more particularly, old age are the real reasons that Crump should not return to full-time manual labor.

Dr. Russell C. Klein, who examined Crump in December, 1976, had, previously, interpreted two lung function studies made at St. Charles General Hospital in October, 1975 and February, 1976. He found that the lung examination results were within normal limits, and, after making the necessary comparisons, that current x-rays indicated no progression of the disease since the October, 1975 and February, 1976 x-rays were taken. He concluded that although Crump had asbestosis, he was in good condition and not disabled by the disease which was essentially unchanged from its non-disabling status in 1975 and 1976. These conclusions are confirmed by the only other medical expert, Dr. Morton Brown.

In summary, the record casts substantial doubt on the existence of an alleged total disability caused by asbestosis. Only the lay testimony of Crump and various family members give any support to the trial court’s apparent determination that asbestosis, and not plaintiff’s age, heart condition (and the condition of obesity which aggravated the heart condition), are the cause of his alleged total disability.

The record does, however, support the conclusion that Crump has experienced a minor reduction of lung capacity as a result of asbestosis. This condition is, essentially, a non-disabling residual arising from minor, yet permanent, impairment of plaintiff’s lung function and does, therefore, entitle him to compensation under La.R.S. 23:1221(4)(p). See, e. g., Ventress v. Danel-Ryder, Inc., 225 So.2d 765 (La.App. 3rd Cir. 1969).

Following the applicable provisions of La. R.S. 23:1221(4)(p), the trial court should render an award of weekly benefits, limited to one hundred weeks, at a weekly rate to be determined by a consideration of the evidence. In this instance, however, we must make that determination, and we set the amount at $50.00.

Accordingly, the amended judgment of the Civil District Court for the Parish of Orleans, dated February 15, 1977, is recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Valeo Crump, and against the defendants, Hartford Accident and Indemnity Company and National Gypsum Company, for compensation at the rate of $50.00 per week for a period of 100 weeks, with interest from the date of judicial demand (June 1, 1976), plus all taxable costs of these proceedings.

As recast, the judgment is affirmed.

RECAST AND, AS RECAST, AFFIRMED.

LEMMON, J., concurs and assigns reasons.

SCHOTT, J., dissents.

LEMMON, Judge,

concurring and assigning reasons.

The issue of prescription (or peremption) in this case is very tricky, because of the necessity of determining when the “disease first manifested itself”.

In the Chivoletto case suit was filed three years after the employer had terminated the claimant for economic reasons, but within four months of the date claimant learned he had asbestosis. And in the La-Coste case the court found plaintiff was not disabled by silicosis and dismissed the action as of non-suit (annulling a dismissal with prejudice), noting that a cause of action for disability based on occupational disease does not accrue (and therefore the peremptive period does not begin to run) until the claimant becomes disabled by the disease.

In the present case the alternative claim under R.S. 23:1221(4)(p), a statute providing for benefits not based on disability, requires the determination of when the disease first manifested itself. When the rationale of the LaCoste case is applied, the peremptive period for plaintiff’s asserting a cause of action for compensation benefits did not begin when he learned he had contracted asbestosis, but was preserved as long as he remained in defendant’s employ and until he became disabled. And since he retired before becoming disabled “to do work of any reasonable character”, the beginning of the peremptive period for the cause of action under R.S. 23:1221(4)(p) is reasonably deemed to have accrued when he retired upon reaching mandatory retirement age. Significantly, the employer sustains no detriment from the deferral of commencement of the peremptive period, because there is no dispute that the employee contracted the disease while working for this employer.

This plaintiff learned he had asbestosis in 1967 or 1969, and the disease progressed somewhat until 1971 when the employees in that plant began using masks. Although there was no significant progression thereafter and the level of hypoxia was not sufficient to cause significant symptoms or inability to work, general hypoxia does cause impairment. Under the overall circumstances plaintiff’s cause of action for this impairment, undoubtedly contracted while in defendant’s employ, was timely asserted.

SCHOTT, Judge,

dissenting.

I agree with my colleagues that the record does not support the conclusion that plaintiff is entitled to compensation benefits for disability resulting from the occupational disease of asbestosis under the provisions of LSA-R.S. 23:1031.1. Once that conclusion is reached, however, I am unable to agree that plaintiff’s claim has not prescribed.

Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295, La.1976, and the other eases cited in the majority opinion held that prescription against a claim for disability from an occupational disease does not begin to run until the disease becomes disabling as opposed to the time when the disease is first diagnosed and known to the plaintiff. This is so because the compensation act does not provide benefits for the mere contraction of an occupational disease but only if disability results from such disease.

The majority would award plaintiff benefits under R.S. 23:1221(4)(p) on the theory that the usefulness of a physical function, namely, plaintiff’s lungs are seriously, permanently impaired. The record shows that plaintiff’s condition was essentially unchanged from 1971 when his condition was first diagnosed as asbestosis. Consequently, the present impairment of his physical function has existed since 1971 and his claim for benefits under that section of the act has long prescribed.

The cases cited by the majority as authority for overruling the exception of prescription have no application to a claim for benefits based on the impairment of a physical function, and consequently I would maintain the exception and dismiss plaintiff’s suit.

      . This award apparently was based on La.R.S. 23:1221 prior to its amendment in 1975, without consideration of the applicability of La.R.S. 23:1221 as amended.

      . The decree in this case is not affected by Louisiana Constitution of 1974, Article 5, Section 8(B), since the panel is unanimous in its view that the judgment of the district court awarding permanent and total disability must be reversed. All three judges on the panel vote to reverse that judgment, and there are no dissents in that regard. The judge who dissents does so only on the ground that there should be no award and, thus, dissents only from the action taken by this court to render an award of $50 per week for 100 weeks.

      . R.S. 23:1031.1 D provides in part:
      “All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months of the date of his contraction of the disease or within four months of the date that the disease first manifested itself.” (Emphasis supplied)

      . This view is logical. If a claim is cognizable under R.S. 23:1221(4)(p) in the case of an occupational disease which does not produce “disability to do work of any reasonable character”, then it would be unreasonable to require the employee to file a claim while he continues in the employment after discovery of the disease.
      This case holds that such a claim is cognizable. The Chivoletto case did not make such a holding, because only the plaintiff had appealed from that award by the trial court. And, as noted in the Chivoletto case, the court in the LaCoste case did not consider the issue.


author: GULOTTA, Judge.

text:
    Sherry Culpepper SAUCIER v. Clyde L. SAUCIER.
    No. 9127.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for plaintiff-appellant.
    R. A. Osborn, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   GULOTTA, Judge.

The trial court granted a separation in favor of the wife against the husband but further adjudged the wife to be “not free from fault”. The wife appeals on the issue of fault. The husband has neither appealed nor answered the appeal.

The wife filed suit for separation based on abandonment and the husband reconvened seeking a separation on the grounds of abandonment and ill treatment. In written reasons, the trial judge stated:

“In this case, Mrs. Saucier testified that she moved herself from her husband’s bed to a separate room. The Court finds that she failed to show reasonable ground for this conduct. Therefore, the Court can not find that she is free from fault.
“The Court finds the parties to be mutually at fault in the separation.”

A reasonable interpretation of these reasons is that the wife denied the husband sexual relations without sufficient cause.

A determination of the wife’s fault is based upon factual findings and will not be disturbed absent manifest error. Pearce v. Pearce, 348 So.2d 75 (La.1977); Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir. 1972). Our examination of the record leads us to conclude that the trial-court’s implicit finding that the wife unjustifiably denied her husband sexual relations is supported by the evidence.

The wife testified that she had moved into a separate bedroom in early 1976 because of friction and a lack of communication between her and her husband. She stated that she had moved into the other room because “things were so strained at the house I did not sleep at night”. The wife indicated that the bedroom door was not locked and that her husband had free access to her room. She testified that her husband had not made any comment regarding the move, that he had not made any sexual advances toward her since early 1976 and that she did not have the opportunity of denying her husband sexual rela- • tions. Her testimony in these respects was not seriously disputed by the husband who further indicated that his sexual activity had been minimal during the five years preceding trial.

The husband, however, denied that he had never approached his wife for sexual relations and further testified that she had refused him, that 99 out of 100 times he was unsuccessful in his advances and that consequently he had given up approaching her for marital relations. He further stated that he knew of no medical problems that his wife had which would have prevented sexual relations.

LSA-C.C. art. 141 authorizing a separation in cases of mutual fault presupposes each party has committed fault constituting an independent ground for separation under LSA-C.C. art. 138. Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir. 1978). To be considered as “fault”, the spouse’s “misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation . . . Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707, 709 (1958). The denial of sexual intercourse to one’s spouse unjustifiably and persistently constitutes “ill treatment” within the meaning of LSA-C.C. art. 138 and is a legal ground for separation. Phillpott v. Phillpott, 285 So.2d 570, 572 (La.App. 4th Cir. 1973), writ refused, 288 So.2d 643 (La.1974).

Though a factual dispute exists in the record regarding the wife’s refusal of sexual relations, the trial judge chose to believe the husband’s testimony. We find no error.

The judgment is affirmed.

AFFIRMED.

      . Though the wife’s suit for separation was filed on June 23, 1976, the judgment was rendered on January 18, 1977, subsequent to the effective date of Act No. 495, § 1 of 1976 which implemented LSA-C.C. art. 141 permitting a judgment of separation despite the mutual fault of the spouses. LSA-C.C. art. 141, therefore, was applicable to the case. See Lawrence v. Lawrence, 352 So.2d 378 (La.App. 4th Cir. 1977).

      . Approximately six months before the separation suit was filed.


author: REDMANN, Judge.

text:
    Mrs. Barbara Blaine, wife of Edward Paul SMITH v. Edward Paul SMITH.
    No. 9181.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.
    Gerald J. Martinez, Metairie, for plaintiff-appellant.
    Thomas S. Loop, Metairie, for defendant-appellee.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   REDMANN, Judge.

A divorced wife appeals from a change in custody of two of her three children and from termination of alimony for herself. We affirm.

The three children are now aged approximately 17,15, and 13 years. The family members have had more than their share of hurt, and apparently find it difficult even to express to one another the good will an outsider can plainly see they have towards each other, much less to express support for one another in their weaknesses and to rejoice in their strengths. Nevertheless, beneath their angry surface, despite the wounds they have inflicted on one another, there appears to remain a concern for one another that still affords hope for a reasonable recovery of parent-child normalcy in the future. One indication of that concern is parents’ and children’s willingness to provide and accept extended treatment, within institutions, which has been undertaken as a desperate, near-last resort. The mother has consented to and the father is paying for and the children are freely accepting one child’s staying at an institution in California near the father and another’s staying at an institution near New Orleans. The wife has also agreed to the third child’s staying with the father in California since a year before the trial of this rule, with the hope that the child will be happier there. The father’s rule for and the trial judge’s granting of a change in legal custody were based upon the fact that two of the children are and have for a long time been in California. The father is in fact the logical person to whom to entrust their legal custody for the time being, since the mother is now so far removed from them, by her own act of good will towards them. The mother does, by another act of concern for the institutionalized child in California, oppose the change of custody because she now opposes the child’s continued stay in the California institution and proposes to place her in an institution at New Orleans, but she did not change institutions while she had custody and she has not shown the necessity for changing institutions. The change in custody here approved is, however, not one arising from a finding of unfitness on the part of the mother, but a purely technical change, and it will doubtless be so considered if reconsideration is necessary hereafter. The change is within the trial judge’s authority to act for the best interest of the children, see Fulco v. Fulco, 1971, 259 La. 1122, 254 So.2d 603, and the trial judge’s exercise of his discretion will ordinarily not be disturbed on review, Monsour v. Monsour, La. 1977, 347 So.2d 203. We therefore affirm the judgment on custody.

We also affirm the judgment on alimony. Alimony and child support for all three children had been fixed by consent at $524.50 twice monthly. One thus cannot say that the wife had alimony for herself alone in any specific amount. Bernhardt v. Bernhardt, La.1973, 283 So.2d 226, rules that alimony fixed by consent may not be modified in the absence of a change in circumstances. In our case, the circumstance is not new that the wife has substantial assets (well over $100,000, not counting mutual funds concerning which the trial judge rejected evidence as superfluous, and from which the wife obtained $20,000 cash to buy the husband’s half of their community property) and substantial income (over $6,800 annually from her individual Indian account with the Department of the Interi- or, plus the mutual funds income). But the circumstance is new that none of the three children now resides with the wife. Presumably the bulk of the $524.50 award was for child support, since the mother was so well able to support herself, and the small amount of alimony for the wife was a concession that her needs would be somewhat increased by the presence of the three children. We conclude that the change in circumstances justifies exclusion of the wife from the now $310 monthly award for support of the one child whose custody (but not physical presence) remains with the wife.

Affirmed.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General, et al. v. CROSSROADS GALLERY, INC.
    No. 9198.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.

      William J. Guste, Jr., Atty. Gen., Charles L. Patin, Jr., Staff Atty., New Orleans, for plaintiff-appellant.
    Jacques F. Bezou, Garon, Brener & McNeely, New Orleans, for defendant-ap-pellee.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   REDMANN, Judge.

The State of Louisiana, through her Attorney General and the Director of her Governor’s Consumer Protection Division, appeals from the dismissal of her suit to enjoin certain representations being made by defendant in its sale of oil paintings in New Orleans. The basic issue is whether defendant’s representation that its prices afford a 50% savings is an enjoinable deceptive trade practice We hold that it is.

Defendant moved dismissal of this appeal as moot because defendant had completed its sale in Louisiana and had moved elsewhere. However, La.R.S. 51:1407 authorizes injunctive proceedings against any person who “has used” a practice declared unlawful by § 1405. Evidently the Legislature has authorized action against “the danger that deception may recur if not forbidden”, see W. M. R. Watch Case Corp. v. F. T. C., 1965, 120 U.S.App.D.C. 20, 22, 343 F.2d 302, 304, cert. denied 381 U.S. 936, 85 S.Ct. 1768, 14 L.Ed.2d 700. We therefore deny the motion to dismiss.

Defendant purchases paintings in quantity from distributors and individual painters in Europe and the Far East. It operates a permanent gallery for the sale of the paintings in Phoenix, Arizona and in that gallery it sells, its president testified, “possibly ten per cent” of its gross volume, “could be more than that, but in that area.” About 90% of its gross volume is sold in “road shows” like that held in New Orleans. In New Orleans it priced its paintings at 50% of the price it would ask for comparable paintings in Phoenix. It represented to New Orleans area purchasers that the prices afforded a 50% savings, without indicating that the saving was 50% of the theoretical price in Phoenix, Arizona, where only 10% of gross volume is sold.

Defendant’s “road shows” started at a “slow time” in the Phoenix gallery, when defendant’s president decided to “run a sale . for half price”. Rather than affect prices in Phoenix he took paintings from Phoenix to “another area” and the sale “was so successful, and then we ran in the next city to us, and so the shows were just kind of an offshoot of our gallery business, and it is now — now the shows are much better than the gallery.”

The prices at all shows away from Phoenix are reduced from the Phoenix prices, though some are reduced only 25% (and prices in Canada are the same as the Phoenix prices but defendant pays the Canadian import duty whose amount is not disclosed by the record).

Louisiana’s “Unfair Trade Practices and Consumer Protection Law”, La.R.S. 51:1401-1418, declares unlawful “deceptive acts or practices in the conduct of any trade or commerce” and authorizes “rules and regulations interpreting the provisions of [the cited law]”. R.S. 51:1405 A and B. Governor’s Consumer Protection Division Rules and Regulations were adopted as authorized and § 5007 interprets the law on deceptive pricing as an unlawful deceptive practice. § 5007B(1) declares it an unfair and deceptive act or practice to represent an offered price as affording a savings over a compared price:

unless the comparative price used represents the price at which the merchandise is usually and customarily offered for sale ... in the trade area involved and/or is the price at which such merchandise has been usually and regularly offered for sale ... in the recent regular course of seller’s business. [Emphasis added.]

Because defendant’s merchandise is usually — 90% of the time — offered at a price substantially below the Phoenix price the quoted regulation proscribes defendant’s using the Phoenix price as a base upon which to represent that purchasers save 50%.

The judgment appealed from is reversed at defendant’s cost and defendant is permanently enjoined from representing that its prices in Louisiana represent a 50% savings to purchasers.


text:
    Joseph DIMITRI and Frank Dimitri v. Hugh C. SNELL, John C. Snell and H. Charles Snell, d/b/a John-Charles Restaurant.
    No. 9238.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Raymond A. McGuire, New Orleans, for Joseph Dimitri and Frank Dimitri, plaintiffs-appellants.
    Samuel W. Ethridge, Kenner, for Hugh C. Snell and H. Charles Snell, d/b/a John-Charles Restaurant, defendants-appellees.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

The lessors sought a declaratory judgment to declare the status of a lease relative to the exercise of an option to renew by lessees. The trial court held that the option was exercised and the lease was binding. The lessors appeal.

Petitioners, Joseph and Frank Dimitri, leased to defendants, Hugh C., John C. and H. Charles Snell, the premises known as “John-Charles Restaurant” for a term of five years ending on November 30, 1972. Latter & Blum, Inc., was lessors’ agent. The lease contained the following provisions:

“Lessee is hereby granted the privilege to renew this lease for an additional Five Years (60 Months) at One Thousand ($1,000.00) Dollars per month by giving notice in writing by Certified or Registered mail to Agent or Landlord not later than June 1, 1972.”

The basic issue here then is whether the lessees exercised the option in accordance with those terms. The trial court found that it was in fact exercised stating:

“I am satisfied from the entire testimony and documents in the case that the conduct of the lessor, Mr. Dimitri, as well as his agent, Latter and Blum, indicates to me that the option was exercised and that the lease is in full force and effect under the terms of the option until November 30th, 1977.”

From this we reason that the trial judge must have believed the testimony of Hugh C. Snell that on February 3, 1972, he consulted his attorney who prepared a letter addressed to Latter & Blum, Inc., the agents, that he brought it to his brother for his additional signature, and that he mailed it by Certified Mail at the post office. We note that this is supported by the testimony of his brother and by the attorney, who furnished a copy of the letter that had remained in his file since that time. On the other hand, we also note that no certification certificate could be produced, and that the representative of Latter & Blum denies receipt of such a letter. These facts are in large part dependent upon the trial judge’s assessment of the credibility of the witnesses, and we cannot say he erred in his determination. By his stated reasons, the trial judge must have been persuaded to this belief by the fact that Latter & Blum had within their files a letter to its attorney dated June 28, 1973 stating that the lease had been renewed in late 1972, and that the agent considered the lease renewed. Similarly the lessor could have considered the lease renewed, because for 4 years after renewal date there was not even so much as a discussion as to whether the lease had been renewed or not, yet the lessee was some $5,000.00 in arrears in the rent. The lessor took no action on the lease nor made any efforts to change the existing agreement until he notified lessee of rental increase on November 3, 1976, after his insurance premiums increased drastically.

Based upon these facts, we affirm the ruling of the trial judge. It is apparent that there are several other hypotheses which could arise from this record, and which are as reasonable as the one proposed. However we cannot merely substitute our opinion for that of the trial judge. It must be shown that his decision is manifestly erroneous and an abuse of his discretion in determining the weight and sufficiency of the evidence.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . Since 1969 a dispute existed between lessor and agent as to the amount of fee owed and the matter was in the hands of the attorneys at this time. The fact that the attorney for Latter & Blum had the file in his office at the apparent time of the notification may have had some bearing on the nonappearance of the notification letter in Latter & Blum’s file.


author: REDMANN, Judge. BEER, Judge,

text:
    WESTSIDE LUMBER AND SUPPLY CO., INC. v. PARISH OF JEFFERSON and the Parish Council of Jefferson Parish.
    No. 9424.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.

      Lester J. Waldmann, New Orleans, for relator.
    Craig J. Cimo, Gretna, for respondent.
    Before REDMANN, BEER and BAILES, JJ.
   REDMANN, Judge.

We granted certiorari to review, and we now reverse, a ruling that evidence to show arbitrariness of a parish zoning ordinance (and its consequent unenforceability) is inadmissible in a district court proceeding unless the evidence was presented' before the parochial legislative authority in an effort to have that authority amend the ordinance to cure the arbitrary provision.

The trial judge reasoned that:

the function of . the District Court, in reviewing the decision of the Parish Council . . . and in reviewing the decision of any board — administrative board or boards of adjustment — is simply to determine whether or not the board acted arbitrarily . . ., and whether or not the decision of the board is supported by substantial and competent evidence adduced in proceedings which are regular and orderly.

That reasoning does not distinguish between legislative and quasi-judicial decisions.

In a different factual context, the question before us has been impliedly decided by Meyers v. City of Baton Rouge, La.App. 1 Cir. 1966, 185 So.2d 278. There opponents of a zoning change enacted by a city council argued that the trial court erred in admitting evidence that supported the change but had not been presented to the council. The argument was that the zoning was arbitrary because evidence before the council was insufficient to support the council’s decision to enact the zoning change. Meyers held the evidence properly admitted, reasoning that the question is whether the legislative action is arbitrary, and that accordingly any evidence tending to answer that question is admissible.

Here the offer of evidence is to show arbitrariness, while in Meyers it was to show non-arbitrariness, but the issue is the same in both cases: is the governing authority’s legislation arbitrary, and therefore a taking of property without due process of law? Whether a litigant opposes or supports the legislative action, he must in either case be allowed to submit evidence of the correctness of his position. The offered evidence is admissible insofar as relevant.

Reversed.

BEER, Judge,

dissenting.

In Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir. 1977), we discussed the dilemma which confronts a trial court in this kind of case. It must not substitute its judgment for that of the administrative tribunal except upon a showing, affirmatively proven, that the administrative tribunal was arbitrary and capricious and, thus, abused its discretion. With that as its judicial objective, the trial court must carefully chart a course which permits an allegedly aggrieved litigant to have his day in court on that issue without reopening the entire administrative proceeding. Otherwise, the proceeding before the administrative tribunal serves no useful purpose.

In my view, the aggrieved litigant, who appeals an administrative agency ruling to the district court, has the burden of alleging and standing ready to prove those facts which will support the contention that the administrative agency was arbitrary and capricious.

Specifically, I believe that it is appellant’s burden to make clear-cut, categoric, factual allegations, sounding in arbitrariness or capriciousness, such as, for example, factual allegations which directly attack the manner in which the proceeding was held or allegations of due process failures directly relating thereto. If these kinds of specific allegations are made, then the aggrieved litigant seeking to appeal to the district court must have a chance to prove them, but, in my view, they must be particularized and clearly set forth. I do not find, on the showing made, that such is the case here. Accordingly, I respectfully dissent.

      . In any case, when the court does review a Jefferson parish board of adjustment decision, the enabling statute expressly provides for the hearing of additional evidence; La.Acts 1954, No. 537, § 7.


author: STOULIG, Judge.

text:
    Linda Stansell MORRISON et al. v. CLEARVIEW MEDICAL PLAZA et al.
    No. 8579.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearings Denied May 10, 1978.
    Writ Refused June 9, 1978.
    Wayne M. LeBlanc and Jack A. Williams, Metairie, for plaintiffs-appellants.

      Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendants-appellees.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   STOULIG, Judge.

Plaintiff, Linda Morrison Ciaccio, had appealed a judgment dismissing the suit she filed as tutrix of her minor son, Gene Morrison, Jr., for injuries he incurred when he ran into a plate glass side light window adjacent to a glass exit door in the Clear-view Medical Plaza. Also dismissed was her individual claim for expenses she incurred as a result of the accident. A jury found merit in her contention that the design of the doorway was negligent in that it created an illusion of open space and that this negligence was a proximate cause of the accident. However, the jury further found that plaintiff, Linda Ciaccio, was con-tributorily negligent, and in accordance with instructions given to it dismissed both claims.

The record reflects that on July 6, 1972, Gene Morrison, Jr., aged 2, was being cared for by plaintiff’s younger sister Kathy while his mother was working. Kathy, accompanied by two friends, went to the Clearview Medical Plaza where all three ladies had an appointment to see a doctor with offices in that building. While Kathy was in the doctor’s examination room, Martha Blake, who had already been seen by the doctor, was watching young Gene in the reception area. After awhile, the child became restless and began activities that Mrs. Blake felt were disturbing to the others in the waiting room. Therefore, she, her 13-year-old son, and young Gene left the office. Mrs. Blake intended to wait for Kathy in her automobile. When the elevator stopped on the ground floor, Gene pulled away from her and ran without breaking his stride into the window or side light of plate glass adjacent to the exit door. He bounced back to the floor as broken glass showered over him.

The pivotal issue on negligence from plaintiff’s standpoint is whether the design of the glass exit and the adjoining glass sidelights extending from the floor to the ceiling created the illusion that there was open space.

Architect Tilghman Chachere, Jr., an expert for plaintiff, said the window as designed was hazardous because there was no bar or decal or other safety device to apprise people using the building that the side light was a fixed glass obstruction rather than open air. He cited the following article of the 1970 Life Safety Code, a national publication available to architects, to fortify his conclusion the exit was negligently designed. We quote:

“Article 5-2112. Every exit doorway and every principal entrance which are required to serve as an exit shall be so designed and constructed that the way of exit travel is obvious and direct. Windows which because of their physical configuration or design and the materials used in their construction could be mistaken for doors shall be made inaccessible to the occupants by barriers or railings conforming to the requirements of 5-316.”

To rebut Chachere’s testimony, the defense called Murvan Maxwell, an architect who testified the design of the doorway and side lights met all building codes in effect when the medical center was erected. Although he was asked several times by defense counsel as to' safety of the design, he would not comment or give an opinion. On cross-examination plaintiff’s counsel elicited several suggestions from him that might have made the exit safer. Maxwell suggested some design or device to leave no visual doubt that the side light was in fact a fixed panel, for example using a material other than glass from the floor to a sufficient level to give the correct visual picture.

Defendants rely on compliance with existing building codes as exculpatory; however, this is not the only yardstick by which negligent design may be measured. At the time a 1952 parish building code was the standard with which architects had to comply to obtain a permit and this code is silent as to side lights. From the quoted regulation that Chachere cited, it is apparent that architects throughout the country were aware of a need to clearly delineate the fixed glass panels adjacent to doorways to prevent the type of accident that we are concerned with in this case.

One of the tenants of this medical center is a pediatrician; therefore it is even more reasonable to require the lessor to maintain a building that is safe for small children. When young Gene ran from the elevator, the fact that he never slowed or broke his stride demonstrates that the side light appeared to be open space. As the Supreme Court pointed out in Natal v. Phoenix Assurance Co. of New York, 305 So.2d 438, 440 (1974): “Glass doors and panels which are clear and without any decoration create a transparency which, even under the best of circumstances, makes it difficult for one to observe the panel of glass.”

The record fully supports the jury finding of actionable negligence upon the part of defendants, however, there is no basis for denying recovery to plaintiff on either the individual demand for special damages or the claim on behalf of her minor child for general damages.

The trial court properly informed the jury that a child of Gene’s young years could not be held to be contributorily negligent and we do not think this principle is in dispute because the defendants’ pleading concedes a child younger than seven years cannot be guilty of contributory negligence. Perry v. Herrin, 215 So.2d 167 (La.App. 3d Cir. 1968), points out that a nonnegligent minor may not be deprived of an award of general damages if it is found that the parent is guilty of contributory negligence. Thus, the jury’s denial of the minor’s claim was based on improper instruction that if they found the mother contributorily negligent, they should return a verdict for the defendants.

As to Linda Morrison, defendants failed to prove that she was contributorily negligent. In order that she could support herself and her child, she left young Gene with her sister who was almost 17. At the time of the accident, Martha Ann Blake, accompanied by her teen-age son, was taking young Gene to the automobile when he broke loose from her grip. Gene was entrusted to the care of a mature woman with children of her own at the time of the accident and we find no negligence on the part of his mother. Therefore we reverse the jury finding of contributory negligence.

We next consider quantum. Young Gene suffered facial scarring, the most prominent one appearing on his right cheek. There is another scar on his forehead into the hairline and a minimal scar on the nose. The blow caused a deviated septum which required surgery and four days’ hospitalization. The surgery was not performed until June 1975, almost three years after the accident and Dr. Gertrude Waite, the plastic surgeon, testified she is reluctant to operate on children unless there is an immediate need. Because Gene experienced an increased difficulty in breathing, the surgery was performed. Whether further surgery will be required is not determinable at the present time.

Immediately after the accident Gene was taken to the office of a Dr. Hebert (the doctor Kathy and Mrs. Blake had visited), who sutured the facial cut and when plaintiff arrived, she decided more medical attention was required. However before rushing off to Ochsner Emergency Room, she contacted her attorney. While her priorities are questionable, there is no doubt the child was injured.

As general damages we award $5,000 to Linda Morrison Ciaccio for the benefit of her son Gene and award $1,282.05 to Linda Morrison Ciaccio individually as special damages for the medical expenditures she made on her child’s behalf.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff, Linda Morrison Ciaccio, individually, in the sum of $1,282.05 and in the sum of $5,000 for the use and benefit of her minor son, Gene Morrison, Jr., and against defendants, Clearview Medical Plaza; William J. Hogan; L. Dow Oliver; Ralph D. Dwyer, Jr.; and American Motorist Insurance Company, jointly, severally and soli-darily with legal interest from judicial demand. It is further ordered that an expert fee be awarded to Tilghman Cachere of $75 and a fee of $250 be awarded Dr. Gertrude Waite. Defendants are to pay all costs and expert fees.

REVERSED AND RENDERED.

      . Plaintiff remarried after this suit was filed.

      . Interrogatory No. 3 propounded to the jury stated: “Was plaintiff, Linda Morrison, con-tributorily negligent and did this contributory negligence constitute a proximate cause of the accident? * * * If your answer is ‘yes’ you will return a verdict in favor of the defendant.”

      .The glass measurements of the doorway are 36 inches by 82 inches, while the side light measures 23 inches by 82 inches.


text:
    John A. KYLE, Rosemary Deig, wife of/and George E. Godbey v. CITY OF NEW ORLEANS and Lieutenant Eugene Fields of the New Orleans Police Department.
    No. 7823.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.

      Leroy J. Falgout, Kenner, for plaintiffs-appellants.
    Philip S. Brooks, Joseph J: Laura, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and GAR-SAUD, JJ. '
   GULOTTA, Judge.

On remand from the Louisiana Supreme Court, this matter is before us on the question of quantum. While an arrest was being effected by New Orleans police officers, plaintiffs sustained injuries from shotgun blasts. The circumstances leading to the use of excessive force, as determined by the Supreme Court, are set forth in our earlier decision, Kyle v. City of New Orleans, 342 So.2d 1257 (La.App. 4th Cir. 1977) and in the Louisiana Supreme Court decision, No. 59,683, 353 So.2d 969 (La.1977).

The trial judge awarded, in general damages, $25,000.00 to John A. Kyle and $750.00 each to George E. and Rosemary Deig God-bey. In this appeal, plaintiffs seek an increase in the amounts of the general damage awards. We affirm.

JOHN A. KYLE

As a result of the February 19, 1972 incident, Kyle, a 65-year-old retired seaman, suffered a comminuted fracture of the lower femur and damage to the femoral artery. Following surgery at Charity Hospital, plaintiff was placed in and remained in traction during his 56-day hospitalization at Charity. Subsequent to discharge on April 15, 1972, Kyle was admitted to the U.S. Public Health Service Hospital for further .treatment where he remained hospitalized for an additional 48 days. When Kyle was transferred from Charity, he was fitted with a spica body cast which was replaced, on April 27, 1972, with a walking leg cast. He was discharged on June 2,1972, but was readmitted to the Public Health Hospital on June 29 for “primarily custodial and disposi-tional care”. Kyle’s cast was removed on July 24 and a July 25 report indicates that he had been treated with exercises to the left hip, knee and ankle and was ambulating with crutches. He was discharged on August 8,1972 with instructions to continue out-patient physical therapy treatments three or four times a week. However, Kyle did not return for therapy after August 10, 1972. Plaintiff underwent additional surgery on April 3, 1973, when three lead shotgun pellets were removed from his left upper thigh.

Examination by Dr. Byron M. Unkauf, an orthopedic surgeon, on April 9, 1974, revealed a Vt" shortening of the left leg and a Vs" wasting of the thigh muscle. As a result of the injury, according to Dr. Un-kauf, Kyle has sustained a 30% permanent disability of the lower limb. He has a shortening of the left leg, contributed to by a “bowing of the thigh” and walks with a limp. Misalignment of the leg resulted in limited rotation of the hip joint and limited (30%) flexion of the knee. Dr. Unkauf indicated that crepitation (popping) of the knee is partially a result of the gunshot wound.

Kyle testified that he was semiconscious immediately following the gunshots and experienced “quite a bit of pain” then, throughout postoperative therapy and even at the time of trial. He complained of leg soreness when he walks. Kyle suffered no loss of earnings. Because of treatment received at Charity and the U.S. Public Health Service Hospital, he incurred no medical expenses.

GEORGE E. AND ROSEMARY DEIG GODBEY

The Godbeys received pellet wounds in the legs. Mrs. Godbey did not testify at trial and her husband s testimony does not directly address itself to the particulars of her leg injury, except to say that his wife screamed when the guns were fired and that she paid for several prescriptions as a result of the accident. George Godbey stated that he was shot on the inside of the left thigh, that the pellet was removed from the leg with a pair of tweezers and that no stitches were necessary. Because these plaintiffs received treatment at Charity also, they incurred no medical expenses.

In addition to the testimony regarding their physical injuries, both Kyle and God-bey related the fear they experienced at the time of the incident. Kyle stated that he first thought they were the subjects of a “stickup” by hoodlums. Because he feared he would be killed, he “played dead”. God-bey stated that one of the arresting officers placed a revolver to his head, thereby placing him in fear of his life.

We are confronted with the sole issue whether the general damage awards are so inadequate as to constitute an abuse of the much discretion rule. We think not. Undoubtedly, Kyle sustained severe injury to his leg, resulting in a permanent disability. We recognize also that he experienced fear as a result of the incident. Nevertheless, considering the severity of the injuries and the fear experienced, we are inclined to the belief that the $25,000.00 general damage award is perhaps on the low side but not so inadequate as to constitute an abuse of the trial-court’s discretion. We reach the same result regarding the Godbeys’ injuries. Finding no abuse, we affirm.

AFFIRMED.

      . Plaintiffs filed suit for damages resulting from their arrest and judgment was rendered in their favor by the trial court. On appeal, we reversed, 342 So.2d 1257 (La.App. 4th Cir. 1977). Certiorari was granted by the Supreme Court on May 18, 1977, and our decision was reversed and set aside. The case was remanded to this court for a consideration of quantum.

      . Because of disability unrelated to the shooting, Mrs. Godbey was unable to testify. At trial, counsel stipulated that she had received “one or two pellets in the calf” from the shotgun blast and was treated as an outpatient on two or three occasions.

      . In Hoffman v. All Star Insurance Corp., 288 So.2d 388 (La.App. 4th Cir. 1974), writ refused, 290 So.2d 909 (La.1974) and Singleton v. Townsend, 339 So.2d 543 (La.App. 4th Cir. 1976), damages were awarded for fear apart from physical injury.


author: PER CURIAM. ADKINS, Justice,

text:
    SPECIAL DISABILITY TRUST FUND, Petitioner, v. TROPICANA PRODUCTS, INC., Royal Globe Insurance Company, and Florida Industrial Relations Commission, Respondents.
    No. 48634.
    Supreme Court of Florida.
    March 2, 1978.
    Rehearing Denied May 8, 1978.
    Margaret M. Black, Tallahassee, for petitioner.
    James H. Smith of Marlow, Mitzel, Ort-mayer & Shofi, Tampa, for respondents.
   PER CURIAM.

We have for review by certiorari an order of the Industrial Relations Commission dismissing the petitioner’s application for review of an order of a Judge of Industrial Claims. Jurisdiction vests in this Court, pursuant to Article V, Section 3(b)(3), Florida Constitution, and Section 440.27(1), Florida Statutes (1975).

Grady Cutts severely injured his back in 1967. The injury and resulting infection left him permanently disabled. In 1972, Grady slipped off a truck at work and rein-jured his back. The two injuries left him permanently and totally disabled. A Judge of Industrial Claims ordered Grady’s employer to provide permanent disability compensation. Later Grady, his employer, and the employer’s insurance carrier petitioned the judge for an order approving and requiring a lump sum settlement.

In separate proceedings, pursuant to Section 440.49(4), Florida Statutes (1975), the employer and its carrier sought reimbursement from the Special Disability Trust Fund (Fund) for the portion of benefits paid which was attributable to the pre-ex-isting physical impairment caused by the 1967 injury. The Fund moved for joinder in the settlement proceeding. A hearing was held and the motion was denied. The Industrial Relations Commission dismissed the Fund’s appeal for review of the denial, and the Fund now petitions this Court for certiorari. The Fund claims the judge’s rejection of its bid for joinder was a denial of its rights under the Workmen’s Compensation Act, Chapter 440, Florida Statutes (1975), the Florida Administrative Procedures Act (APA), Chapter 120, Florida Statutes (1975), and the due process guarantees of the Florida and United States Constitutions.

The issue is whether the Special Disability Trust Fund is an “interested party” to a lump sum settlement authorized in Section 440.20(10), Florida Statutes (1975), and in Workmen’s Compensation Rule 17(f). The plain meaning of the statute’s words provides the answer. Since the money to be received by the injured claimant in settlement of his claim will in part be paid by the Fund, obviously the Fund is a party “interested” in the settlement to the same extent as others financially responsible, such as the employer and the carrier. See National Bank of Tampa v. Green, 175 So.2d 545 (Fla. 1st DCA 1965); Goldberger v. Wolfie’s Restaurant, IRC Order No. 2-2424 (10/8/73). There is no merit to respondent’s suggestions (1) that the Fund is free to litigate the claimant’s entitlement to the settlement benefits in a later, independent proceeding, and (2) that the settlement figure does not conclusively establish the Fund’s liability. See Special Disability Trust Fund v. Fleet Transport Co., 283 So.2d 31 (Fla.1973). As the Fund demonstrates, Section 440.49(4)(g) has an extremely limited effect on this proceeding and does not bar Fund joinder.

We hold the Fund may have a right to intervene in workmen’s compensation lump sum settlement proceedings when the employer or carrier is seeking Fund reimbursement for part of the payments at issue. This holding does not modify our decision in Special Disability Trust Fund v. Fleet Transport Co., supra, that the Fund is not a proper party to compensation proceedings. That issue is not present in this case. Since this issue is resolved under the Workmen’s Compensation Act, we do not address or pass upon the Fund’s APA and constitutional claims.

The Industrial Relations Commission departed from the essential requirements of the law. Its order is quashed, and this case is remanded for a determination of the merits of the Fund’s application for review.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., concurs specially with an opinion, with which HATCHETT, J., concurs.

ADKINS, Justice,

specially concurring:

I concur with the majority’s decision that under the Workmen’s Compensation Act and the Workmen’s Compensation Rules of Procedure, the Fund may be entitled to participate in the settlement proceedings below. I cannot, however, concur in the majority’s cavalier disregard of the Fund’s. APA claims.

Allowing participation under the Workmen’s Compensation Act does not give the Fund the same rights participation under the auspices of the Administration Procedure Act would. Compare, Chapter 120, Florida Statutes (1975) and Chapter 440, Florida Statutes (1975). Litigants should be informed of the reasons for rejection of their good faith claims. This explains my position that the APA does not apply to workmen’s compensation proceedings.

The applicability of the APA to workmen’s compensation proceedings has been unclear. In Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974), this Court acknowledged the issue’s existence, but the Court did not find it necessary to resolve it. There is some uncertainty among attorneys. 50 Fla.B.J. 508 (1976). This Court referred to the proceedings as “more judicial than quasi-judicial” (In re Florida Workmen’s Compensation Rules of Procedure, 258 So.2d 601 [Fla.1973] at 601) or “judicial functions” (Scholastic Systems, Inc. v. LeLoup, supra, at 171) on one hand while referring to the Industrial Relations Commission as an administrative agency on the other. See, e. g. Vargas v. Americana of Bal Harbor, 345 So.2d 1052 (Fla.1976), and Chicken’n Things v. Murray, 329 So.2d 302 (Fla.1976).

The APA is broadly aimed and broadly worded. Construed alone it could easily encompass workmen’s compensation proceedings. The reporter for the Law Revision Council, which presented the act, thought the proceedings were covered. Reporters’ Comments on Proposed APA for State of Florida (March 9, 1974), p. 24. An amendment to the act specifically exempting the Industrial Relations Commission and the Judges of Industrial Claims was rejected by the Legislature. Journal of the Senate, Regular Session 1974, at 563, 622, 906, 914. The action is ambiguous and unexplained but could be interpreted as showing an intent to cover workmen’s compensation proceedings. But it could just as easily be interpreted as showing the Legislature thought workmen’s compensation proceedings were not covered and that a specific exemption was mere verbiage. Statutes, however, cannot be construed alone. It is our duty to interpret and give effect to all the laws and resolve conflicts among them in a way most likely to give effect to the Legislature’s intent.

The legislative session that enacted the APA and the one that followed also amended and re-enacted portions of the Workmen’s Compensation Act. To read the APA as applying to the Workmen’s Compensation proceedings would render the contemporaneous and subsequent enactments inexplicable and futile. The repealer section of the APA offers no assistance since it affects only statutes in existence in 1973. Section 120.72(1), Florida Statutes (1975).

The APA was adopted to make rule-making and adjudicative procedures uniform throughout state agencies. Section 120.-72(1), Florida Statutes (1975). It requires extensive procedural steps for promulgation of rules. Sections 120.53, 120.54, 120.55, 120.56, Florida Statutes (1975). Enacted as Chapter 74-310, Section 1, Laws of Florida. Yet a contemporaneous amendment to the Workmen’s Compensation Act requires the Supreme Court to adopt rules governing practice and procedure before the Industrial Relations Commission and the Judges of Industrial Claims. Enacted as Chapter 74-197, Section 16, Laws of Florida, re-enacted as Chapter 75-209, Section 14, Laws of Florida. (Rules of practice and procedure were the only ones the commission or judges were empowered to create before the amendment. See Chapter 440, Florida Statutes [1973]). Section 440.29(3), Florida Statutes (1975). The Legislature clearly did not intend for Chapter 120 to apply to rule-making workmen’s compensation proceedings. The Supreme Court is immune to the APA. Section 120.50, Florida Statutes (1975).

The APA also requires certain procedures for decisions affecting substantial interests. Formal proceedings are required whenever a disputed issue of material fact is involved. Section 120.57, Florida Statutes (1975). Claims to workmen’s compensation benefits are substantial interests, and they invariably involve questions of material fact. If any part of Section 120.57, Florida Statutes (1975) applies to workmen’s compensation proceedings, it is the formal proceedings requirement. Workmen’s compensation proceedings are exempted from the required use of hearing officers but are not otherwise specifically exempted from Section 120.57, Florida Statutes (1975). Hearing officers are required to submit a proposed order with findings of fact and allow ten days for filing of exceptions. Section 120.57(l)(b)(8), Florida Statutes (1975). All parties are guaranteed the right to submit proposed findings of fact. Section 120.-57(l)(b)(4), Florida Statutes (1975). After hearing exceptions and considering the proposed order, the agency head issues a final order which must include a ruling on each proposed finding and a brief explanation of the denial. Section 120.59, Florida Statutes (1975). Review of the hearing officer’s proposed order by the agency head is mandatory. Section 120.57(l)(b)(8), (9), Florida Statutes (1975).

In incompatible contrast, a Judge of Industrial Claims’ order need only set forth findings of ultimate fact and the mandate. Other reasons or justifications are specifically not required. Section 440.25(3)(c), Florida Statutes (1975). Review of the order is not automatic; there is none unless a party provides a transcript. Section 440-25(4)(b), Florida Statutes (1975). The Legislature has created two conflicting adjudicative procedures. All these provisions of the Workmen’s Compensation Act were reenacted after the APA’s enactment. Chapter 75-209, Section 12, Laws of Florida. To give the provisions of both laws the effect and weight they are due, I conclude that the APA does not apply to the unique, long-established, well-respected procedures of the Industrial Relations Commission and Judges of Industrial Claims.

HATCHETT, J., concurs.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Hugh R. PAPY, Respondent.
    No. 50810.
    Supreme Court of Florida.
    March 2, 1978.
    Rehearing Denied May 11, 1978.
    Alfred K. Frigola, Bar Counsel, Marathon and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    James E. Tribble, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami and Magill, Sevier & Reed, Miami, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against respondent, Hugh R. Papy, a member of The Florida Bar, is before us on complaint of The Florida Bar, report of the referee and petition for review of respondent.

The Florida Bar filed a four-count complaint against respondent in June, 1974, charging in Count I that he accepted employment in a matter in which the exercise of his professional judgment on behalf of his client was or could reasonably have been affected by his own financial, business, property or personal interests, in that in June of 1971, while administrator of the estate of Robert Curry, which estate included a business known as Haven Roofing Company, he sold the assets of said company to Haven Roofing Company, Inc., in which he was an officer and incorporator and of which he and his wife subsequently became owners on July 31, 1971, without notifying the court supervising Curry’s estate of his interest in Haven Roofing Company, Inc.

Count II charged that respondent commissioned an appraiser to appraise the assets of Haven Roofing Company for the Curry estate, and on the day scheduled for the appraisal, he hired one Hunter to load two trucks with material owned by Haven Roofing Company and to take it to Hunter’s home until the appraisal was completed; and charged that, by directing that assets belonging to Haven Roofing Company be concealed from an appraiser of the property, he engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.

Count III charged that respondent represented to Mr. Arroyo, who was responsible for the appraisal for all of the property in Curry’s estate, that the independent appraisal of Haven Roofing Company was accurate and suitable to use in the overall appraisal and that he represented to the court, in a petition for order authorizing sale, that the assets of Haven Roofing Company were worth $8,920.35 when, in fact, he was aware that the true value of the property was much higher.

Count IV charged that he received at least $8,920.35 in his capacity as administrator of Curry’s estate pursuant to a sale of the assets of Haven Roofing Company, that he never distributed this money to Curry’s heirs or accounted for it, and that he never opened a separate account for Curry’s estate but, instead, used the bank account of Haven Roofing Company.

Detailing the facts which he found to be supported by the evidence indicative of respondent’s interest, which was not disclosed to the court or beneficiaries of Curry’s estate, in Haven Roofing Company, Inc., beyond the status of accommodation endorser on the bank loan, as to Count I, the referee concluded:

“It is obvious that the interests of the Estate and the interests of Haven Roofing Company, Inc. were different in the transaction wherein the corporation bought the assets of the Estate business. The apparent complete exercise of control over the affairs of the corporation by the Respondent establishes his interest in the corporation. There is no evidence of consent by the beneficiaries or the Court or evidence of full disclosure to the beneficiaries or the Court. That the Respondent’s personal judgment as Attorney for the Estate was affected by his own interest is evidenced by the facts,”

and found respondent guilty of violating Disciplinary Rules 5-101(A) and 5-104(A) of the Code of Professional Responsibility.

As to Count II the referee found that the unrefuted evidence shows that two truckloads of material, valued at several thousand dollars, was removed from the business location of Haven Roofing Company for the entire working day on which the inventory and appraisal of the assets of Haven Roofing Company was made; that the only party to benefit by the reduced inventory was Haven Roofing Company, Inc., the prospective purchaser of which, respondent, was a fifty percent stockholder; that the same inventory valued at $8,920.35 in early 1971 was sold approximately a year and a half later for $10,000.00; that from the evidence, it could only be concluded that the total appraised value of the assets of Haven Roofing Company was deliberately reduced from its actual value both in quantity and worth, and that a convincing exam-pie of respondent’s dishonest conduct was the using of the assets of the estate business to acquire assets of J. R. B. Roofing; and found respondent guilty of violating Disciplinary Rules 1-102(A)(4), 7-101(A)(3), and Integration Rule 11.02(3)(a).

The referee found, as to Count III, that by the filing of the report of the appraisers by respondent into the court record and by the utilizing of the falsified figures as to the value of the estate in the accounting filed by respondent with the court, respondent used false evidence, made a false statement and concealed that which was required to be revealed; and that respondent falsified evidence either to the Circuit Court or to the hearing referee, thereby violating Disciplinary Rule 7-102(A)(3), (4), (5) and (6). Pertaining to the last count in the complaint, the referee found that respondent utilized money and material entrusted to him for a specific purpose for another purpose and that he had failed to make the required annual accountings, and recommends that respondent be found guilty of violating Disciplinary Rule 9-102(B)(1), (3) and (4) and Integration Rule 11.02(4).

Having carefully examined the record, we initially find that the findings of the referee are supported by clear and convincing evidence in the record before us for review. <

Although we conclude that respondent’s arguments on petition for review to this Court do not warrant reversal of the findings of the referee or dismissal of the complaint or any counts thereof, we do find sufficient mitigating circumstances so as to require reduction of the recommended disciplinary action to be taken against the respondent. Respondent contends, and it indisputably appears from the record, that the Bar failed to expeditiously prosecute the complaint against respondent. In fact, this cause has been replete with delays for the most part resultant from the Bar’s activity or inactivity. The offenses upon which the complaint was based occurred in 1970 and 1971. The grievance hearings were held in late 1973 and early 1974, and the complaint of The Florida Bar was served in 1974. Final hearing was repeatedly postponed by the Bar and was not held until almost two years after the complaint had been filed.

Respondent was admitted to The Florida Bar in 1958 and has no record of any disciplinary activity prior to the present disciplinary proceedings. Furthermore, counsel for The Florida Bar and for respondent reported at the bar of this Court that there have been no subsequent disciplinary charges filed against respondent. This Court is committed to the proposition that disciplinary proceedings should be handled with dispatch, without any undue delay. The Florida Bar v. King, 174 So.2d 398 (Fla.1965). This Court, in The Florida Bar v. Randolph, 238 So.2d 635 (Fla.1970), emphasized that the responsibility for exercising diligence in the prosecution of disciplinary matters lies with the Bar. Opining that inordinate delays are unfair, unjust and may even be prejudicial to the accused attorney, this Court, in Randolph, supra, explicated:

“They permit violators to remain active in the practice. They dim the memories of witnesses. They mar effective and efficient enforcement of the canons of ethics. Worst of all, perhaps, they undermine the public confidence in the bar’s announced determination to keep its own house in order. .
“We have repeatedly announced that disciplinary proceedings should be handled with dispatch. In cases of flagrant delays, such as the matter sub judice, we have held that years of exposure to public scrutiny and criticism supplemented by clear evidence of rehabilitation, justify a terminal penalty that otherwise perhaps would be considered inadequate. [Cases cited.] During this unduly long period of investigation and prosecution, the accused lawyer is left roaming through the fields of Limbo where dwelt what Dante called .'the praiseless and the blameless dead.’ State v. Oxford, [127 So.2d 107 (Fla.1961),] supra.”

Our ultimate judgment as to the disciplinary penalty to be imposed must not only be just to the public but also must be fair to the accused. Cf. State v. Bass, 106 So.2d 77 (Fla.1958).

The totality of the circumstances in this cause, which include the inordinate delay caused by the Bar, no previous record of any disciplinary activity and his good behavior subsequent to the charged incident, mandate that the recommendation of disbarment by the referee be rejected and, in lieu of such penalty, respondent be, and is hereby, suspended for one year, beginning March 2, 1978.

Costs in the amount of $1,976.03 are assessed against respondent, which costs shall be paid before reinstatement.

It is so ordered.

OVERTON, C. J., and ENGLAND, HATCHETT and KARL, JJ., concur.

BOYD, J., dissents with an opinion, with which ADKINS, J., concurs.

BOYD, Justice,

dissenting.

I respectfully dissent.

It is evident that respondent used poor professional and business judgment in his handling of this estate. It was obviously improper for him to become financially involved personally with an estate for which he was serving as attorney and legal representative. The record shows he did not profit by such efforts. On the contrary, there is convincing proof that he lost several thousand dollars of his own funds in the undertaking. There is no showing that he actually intended to profit personally from his efforts in the business. In his career as an attorney this is the only matter of his alleged professional misconduct to have-' come before this Court.

As stated in the majority opinion, the long passage of time between the alleged misconduct and consideration by the referee, and subsequent consideration by this Court, creates an awkward situation. Delay between the happening of events and the testimony thereof by witnesses naturally weakened their memories and diminished their effectiveness. Through financial loss and adverse publicity respondent has paid dearly for his exercise of poor judgment. There is not clear and convincing proof of his guilt, and I would therefore respectfully dissent to the finding of guilt and imposition of penalty.

ADKINS, J., concurs.


text:
    In re FLORIDA BOARD OF BAR EXAMINERS. In re Robert Francis EIMERS.
    No. 51154.
    Supreme Court of Florida.
    March 2, 1978.

      C. Graham Carothers, Tallahassee, for Florida Bd. of Bar Examiners, complainant.
    Terry L. DeMeo and Bruce J. Winick of the American Civil Liberties Union Foundation of Florida, Inc., South Miami, for respondent.
   PER CURIAM.

The Florida Board of Bar Examiners (the Board) has requested certain information for its guidance in determining the admissibility of an applicant to The Florida Bar. We treat the Board’s request as one for an advisory opinion and assume jurisdiction pursuant to Article V, Section 15, Florida Constitution. The applicant was invited to file a brief in this cause setting forth his views and a brief on his behalf has been filed by counsel for the American Civil Liberties Union Foundation of Florida Inc.

The question which has been submitted by the Board with request for this Court’s answer is:

Whether an applicant with an admitted homosexual orientation who is fully qualified for admission to The Florida Bar in all other respects can qualify for admission under the provisions of Article IV, Section 19, of the Rules of the Supreme Court of Florida Relating to Admission to the Bar, which section places a strict prohibition against any recommendation by the Board to the Supreme Court for admission to The Florida Bar for a person not determined to be of good moral character.

We answer this question in the affirmative, noting that our response is limited to situations in which the applicant’s sexual orientation or preference is at issue. This opinion, then, does not address itself to the circumstance where evidence establishes that an individual has actually engaged in homosexual acts.

The applicant in the instant case is a graduate of an accredited law school, is certified for admission to the Pennsylvania Bar, and has passed all parts of The Florida Bar examination. The Florida Board of Bar Examiners has found him qualified for admission to The Florida Bar in all respects with the possible exception that he may fail to meet the “good moral character” standard for admission due to his homosexual preference.

The applicant admitted his homosexual preference in response to inquiry made at a hearing before the Board. He was not questioned about what sexual acts he may have engaged in. Further, no evidence was presented indicating that the applicant has acted or plans to act on his sexual preferences.

The United States Supreme Court described the term “good moral character” as “unusually ambiguous”:

The term “good moral character” has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambigúous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law. (Footnotes omitted) Konigsberg v. State Bar of California, 353 U.S. 252, 262-263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1957).

Wary of the state’s capacity to arbitrarily deny an applicant admission to a state bar, the Supreme Court recognized as early as 1866 that the reasons for denying admission should be related to the purposes for exclusion. Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866) (test oath required of all candidates for admission to the bar bore no relation to the qualifications necessary for the profession); cf. In re Rouss, 221 N.Y. 81, 85, 116 N.E. 782, 783 (1917). However, as long as there was a rational connection between the qualification and the applicant’s ability to practice law, courts could exclude incompetent and iniquitous persons from the legal profession to protect clients and to assure a credible bar, Mitchell v. State Board of Law Examiners, 155 Mich. 452, 119 N.W. 587 (1909); Spears v. State Board of California, 211 Cal. 183, 294 P. 697 (1930).

Elucidating upon these principles in the landmark case of Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), the Supreme Court held that:

A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. ... A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law. (Emphasis added) Id. at 238-239, 77 S.Ct. at 756.

Thus, in determining fitness for admission to the bar, state courts must now meet the standard imposed by the due process clause found in the Fourteenth Amendment. In the instant case, the issue which must be resolved is whether there is a rational connection between homosexual orientation and fitness to practice law.

In assessing the reasonableness of the relation between homosexual orientation and moral unfitness to be an attorney, we must make reference to the purposes promoted by ostracizing the morally unfit. The layman must have confidence that he has employed an attorney who will protect his interests. See Drinker, Legal Ethics, p. 89-188 (1953). Further, society must be guaranteed that the applicant will not thwart the administration of justice. These exigencies arise because the technical nature of law provides the unscrupulous attorney with a frequent vehicle to defraud a client. Further, the lawyer can obstruct the judicial process in numerous ways, e. g., by recommending perjury, misrepresenting case holdings, or attempting to bribe judges or jurors. Consequently, if an applicant has committed certain illegal acts in the past, he may represent a future peril to society which would justify denying the applicant admission.

In the instant case, however, we cannot believe that the candidate’s mere preference for homosexuality threatens these societal exigencies. In a related context, we note that former Justice Ervin in The Florida Bar v. Kay, 232 So.2d 378 (Fla.1970) (Ervin, C. J., specially concurring), observed:

While Respondent’s act definitely affronts public conventions, I am concerned as to the extent of the authority of the Board of Governors of The Florida Bar under controlling concepts of due process to continue the discipline of Respondent since there is no showing in the record of a substantial nexus between his antisocial act, or its notoriety, or place of commission, and a manifest permanent inability on Respondent’s part to live up to the professional responsibility and conduct required of an attorney. .
******
The present record contains no evidence — scientific, medical, pathological or otherwise — suggesting homosexual behavior among consenting adults is so indicative of character baseness as to warrant a condemnation per se of a participant’s ability ever to live up to and perform other societal duties, including professional duties and responsibilities assigned to members of The Bar. .
******
Since it is held in Florida that The Bar has jurisdiction to discipline Florida Bar members concerning their personal or private morals, it would appear appropriate to require that such discipline be subject to a showing originally or when reinstatement is sought that there is a substantial connection between a member’s antisocial behavior and his ability to otherwise carry out his professional responsibilities as an attorney. Otherwise, The Bar will be virtually unfettered in its power to censor the private morals of Florida Bar members, regardless of any nexus between the behavior and the ability to responsibly perform as an attorney. Governmental regulation in the area of private morality is generally considered anachronistic in the absence of a clear and convincing showing there is a substantial connection between the private acts regulated and public interests and welfare. (Emphasis added) Id. at 379-381.

Accordingly, we find that the applicant in the instant case is qualified for admission to The Florida Bar under the provisions of Article IV, Section 19, of the Rules of the Supreme Court of Florida Relating to Admission to The Florida Bar.

It is so ordered.

ADKINS, SUNDBERG, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., and ENGLAND, J., concur in result only.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

Applicant admits he is a homosexual. Before a finding on the issue of his fitness to practice law I would remand this cause to the Board of Bar Examiners for an inquiry into whether he has committed homosexual acts of the kind criminally outlawed by Section 800.02, Florida Statutes. There should not be admitted to The Florida Bar anyone whose sexual life style contemplates routine violation of a criminal statute.

      . In The Florida Bar v. Kay, supra, this Court considered the propriety of permanently disbarring an attorney who was convicted of indecent exposure after being observed engaging in a homosexual act with a consenting adult in a public lavatory. The respondent was disbarred but The Bar indicated that no permanent disbarment was intended and he was subsequently readmitted to practice. While we find the following language persuasive, we do not mean to imply that we are not unmindful of the differing standards to be met for admissions to The Bar as compared to disciplinary or disbarment proceedings.

       See Franklin v. State, 257 So.2d 21, 24 (Fla.1971).