author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Alvin SENETTE.
    No. 60726.
    Supreme Court of Louisiana.
    March 6, 1978.
    Omer F. Kuebel, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State jointly charged Alvin Senette and Michael Colton with distribution of heroin, a violation of LSA-R.S. 40:966. After trial, the jury found them both guilty as charged. The court sentenced Senette to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant Senette appeals his conviction and sentence, relying upon five assignments of error. Finding reversible error in Assignment of Error No. 3, we pretermit treatment of the remaining four assignments of error.

The facts disclose that on August 25, 1975, the defendants sold an undercover police officer two tin foil packets of heroin for $350.

In Assignment of Error No. 3, Senette complains that the trial court improperly denied his challenge for cause of prospective juror Albert C. Provost. The defendant’s challenge of Provost arose as follows:

During voir dire, defense counsel questioned the prospective jurors about prior jury service in narcotics cases. Provost testified that he had served as juror the previous week in a narcotics distribution case. He also informed the court that two of the State’s intended witnesses, Officers Larry Taplin and William Reiher, had also testified during that trial.

Relative to these disclosures, the following colloquy occurred:

“BY DEFENSE COUNSEL: Now, would the fact that you heard Officer Taplin testify before tend to . . .do you feel a relationship with him, or would you tend to believe his testimony more in this case? Or could you judge him again on this matter:
“BY PROVOST: I could.
“BY DEFENSE COUNSEL: You could be impartial?
“BY PROVOST: Yes.
“BY DEFENSE COUNSEL: How long ago was it?
“BY PROVOST: Last Tuesday.
“BY DEFENSE COUNSEL: Mr. District Attorney, do you have any other witnesses besides Officer Taplin? I'd like to ask the jurors if they know them.
“BY THE PROSECUTOR: Your Honor, the State’s witness list is filed in the record.
“BY DEFENSE COUNSEL: Would the Court call them?
“BY THE COURT: Since there’s only a few I will call it, with the exclusion of the chemist. Officer William Reiher and Officer John Driscoll. Ask these officers to step into Court and stand by the rail.
“BY THE PROSECUTOR: If it please the Court, Officer Driscoll is in Federal Court this morning. The State does not intend to use him.
“BY THE COURT: Officer William Rei-her, would you step forward and stand by the rail and face the jury for voir dire examination. That’s fine. Would you also face the remaining jurors? Thank you, officer. Would you step outside until your name is called as a witness.
“BY DEFENSE COUNSEL: Do any of you know this particular police officer? Was this a police officer that testified in that case, too, sir?
“BY PROVOST: Yes.
“BY DEFENSE COUNSEL: Would the fact you again see this police officer in any way tend to give him more credit when you listen to his testimony than any other witness ?
“BY PROVOST: It would.
“BY DEFENSE COUNSEL: Submit it for cause, Your Honor.
“BY THE COURT: Not at this time; denied.
“BY DEFENSE COUNSEL: I’d like to note my objection to the Court’s ruling.
“BY THE COURT: Is it your testimony, Mr. Provost, that because you sat through a case in which both these witnesses testified that you could not give this defendant, Alvin Senette, a fair and impartial trial ?
“BY PROVOST: Right.
“BY THE COURT: I don’t think that’s sufficient, Mr. Heyd [defense counsel]. It’s overruled.” (Tr. pp. 22-24) (Emphasis added.)

LSA-C.Cr.P. Art. 797 provides the bases upon which a prospective juror may be challenged for cause. It provides in pertinent part:

“The state or the defendant may challenge a juror for cause on the ground that:
“(2) The juror is not impartial, whatever the cause of his partiality. * * * ”

As defendant exhausted his peremptory challenges prior to the completion of the jury panel, the trial court’s denial of his challenge for cause is properly before us. LSA-C.Cr.P. Art. 800.

In the instant case, Provost testified clearly that he could not give the defendant an impartial trial. The voir dire examination ended without any attempt to clarify his response or rehabilitate the juror. See State v. Governor, La., 331 So.2d 443 (1976). Apparently, the juror’s partiality was based upon his having considered the police officers’ testimony during his prior jury service. As defense counsel properly noted during voir dire examination, the State’s case rested primarily upon police testimony. Officer Taplin made the narcotics purchase, and Officer Reiher witnessed the transaction.

We conclude that the trial judge erred in denying the challenge for cause. See State v. Nolan, La., 341 So.2d 885 (1977); State v. Jones, La., 282 So.2d 422 (1973).

For the reasons assigned, the conviction and sentence are reversed. The case is remanded to the district court for a new trial according to law and consistent with the views herein expressed.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Jerome D. LOEHR. STATE of Louisiana v. Linda M. LOEHR.
    Nos. 60737, 60738.
    Supreme Court of Louisiana.
    March 6, 1978.
    Allen A. McElroy, Jr., McElroy & Ramsey, Ltd., Berwick, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Edward M. Leonard, Jr., Walter J. Sen-ette, Jr., Asst. Dist. Attys., for plaintiff-respondent.
   DIXON, Justice.

Defendants Jerome D. Loehr and Linda M. Loehr were charged with the possession of marijuana. A motion to suppress evidence seized in a search of the defendants’ trailer was denied by the trial court on August 17, 1977. We granted defendants’ application for certiorari in order to review that ruling. 351 So.2d 1213 (La.1977); 351 So.2d 1214 (La.1977).

The sole issue presented is whether the affidavit upon which the warrant for the search of defendants’ residence was issued adequately supports a finding of probable cause to search. The affidavit reads as follows:

“BEFORE ME, Edward A. Delahoussaye III Judge of the 16th Judicial District Court, Parish of St. Mary State of Louisiana, personally appear(s) Agent James M. Riley who, being duly sworn by me, depose^) and say(s) the following:
Probable cause exists for the issuance of a search warrant authorizing the search of The residence of Jerome Loehr This being a 10' X 60' Magnolia House Trailer White with Green trim, located at 501 Teche St in Bayou Vista, La. where the following described item(s) (is) (áre) believed to be: Heroin.
The probable cause is based on the following: This officer received information that the above subject had in his possession Heroin. This subject is a known user of Heroin. The informant stated that he observed personally a small amount of white powder that the subject told him was Heroin. The subject told the informant that he purchased this Heroin in New Orleans, La. This officer has used this informant in the past and he has proved reliable by giving this officer information that has led to the arrest and conviction of Narcotics violators.
The undersigned officer(s) request(s) a warrant to search the aforesaid Residence of Jerome Loehr for the item(s) specified in this affidavit.

It is fundamental that an affidavit upon which a search warrant is based must inform the issuing magistrate of underlying facts sufficient to support a determination that evidence of a crime is presently on the premises to be searched. State v. Porter, 344 So.2d 1031 (La.1977); State v. Paciera, 290 So.2d 681 (La.1974). The affidavit in the present case fails to meet this requirement.

First, there is nothing in the affidavit that suggests that whatever contraband that may have been in Jerome Loehr’s possession could be found in his residence. While in some cases this fact may be inferred from the surrounding circumstances (see, e. g. United States v. Burgard, 551 F.2d 190 (8th Cir. 1977); United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), cert. den. 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974); United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970)), such an inference is not justified where the only information supplied by the affiant is that the defendant had a small amount of heroin in his possession and that he had bought it in New Orleans. See United States v. Flanagan, 423 F.2d 745 (5th Cir. 1970); United States v. Whitlow, 339 F.2d 975 (7th Cir. 1964).

A second fatal defect in the affidavit is its failure to inform the issuing judge of the time when the events described actually happened. In dealing with this issue, this court has stated:

“The absence of a date for each episode described in the affidavit is not fatal, however. The language of the affidavit, including the use of the present tense, indicates that the affiants are describing a course of conduct continuing to the date of the warrant. .
Such an affidavit has been held to be adequate if, in a commonsense construction, it can be said from the face of the affidavit that the information received by the affiant was current and not stale. See: Borras v. State, 229 So.2d 244 (Fla., 1969); State v. Clay, 7 Wash.App. 631, 501 P.2d 603 (1973); Sutton v. State, 419 S.W.2d 857 (Tex.Cr.App., 1967); Lewis v. State, 126 Ga.App. 123, 190 S.E.2d 123 (1972). . . . ” State v. Boudreaux, 304 So.2d 343, 345-46 (La.1974).

See also State v. Segers, 355 So.2d 238 (La.1978); State v. Turner, 337 So.2d 1090 (La.1976). In State v. Thompson, 354 So.2d 513 (La.1978), we held that an affidavit which fails to make any reference to the time when the events took place, and which is phrased in the past tense does not provide the magistrate with sufficient facts to determine that probable cause to search exists at that time. In the present cases there is no reference to the time when the informant obtained his information, nor is there any indication of the time when the affiant was contacted by the informant. The affidavit is written in the past tense, so it is not possible to infer that the facts demonstrate a continuing course of conduct. Accordingly, the search warrant must fall. State v. Thompson, supra.

Since the affidavit in the present cases is fatally defective, the trial court erred in denying the motion to suppress. The motion to suppress is sustained, and the cases are remanded for further proceedings consistent with the ruling herein.


text:
    Samuel HAUGHTON v. FIREMAN’S FUND AMERICAN INS. COMPANIES.
    No. 60765.
    Supreme Court of Louisiana.
    March 6, 1978.
    Jerome P. Halford, New Orleans, for plaintiff-applicant.
    Lawrence J. Duplass, Johnston & Du-plass, New Orleans, for defendant-respondent.
   DIXON, Justice.

Samuel Haughton brought this action claiming workmen’s compensation for a total disability allegedly caused by a work related injury. The trial court judgment denying compensation was affirmed by the Court of Appeal. 349 So.2d 385 (La.App. 4th Cir. 1977). We granted certiorari to review that judgment on October 14, 1977.

Samuel Haughton was employed as a common laborer by the Jefferson Parish Sewerage Department. On November 4, 1974 he stumbled on a stick lying on the ground while carrying one end of a heavy timber and fell, breaking his left thigh just above the knee. He was hospitalized, and the fracture was surgically reduced and fixed with a steel plate and screws.

Tests made after the initial hospitalization suggested a bone marrow disorder, which was subsequently diagnosed as multiple myeloma. The break was thought to have been a “pathological fracture,” caused by weakening of the walls of the bone. In addition to the orthopedic treatment, Haughton was placed under the care of a hematologist for the control and treatment of the myeloma. The hematologist did not testify, nor were his reports introduced in evidence.

The orthopedic surgeon testified to a long period of recuperation and treatment, during which Haughton complained of some pain and weakness, reaching a point at which he could walk with a cane, depending on muscle relaxants and tranquilizers for control of the pain. The orthopedist found that Haughton could only bend his leg to about a 90 degree angle, and that the steel plate “probably impinges against the lateral border of the patella periodically.” The doctor ascribed a 25% residual disability to the left leg of Haughton “as a result of the injury and subsequent surgery.”

On June 4, 1976 the defendant insurance company terminated payment to Haughton. The claims manager testified that two medical reports prompted the termination. One was from the orthopedist, saying that the fracture had healed; the other was from the hematologist, relating his opinion that Haughton “will never be able to return to work because of his myeloma.”

The orthopedic surgeon testified to the effect that the fracture had healed, but that Haughton’s “myeloma condition does preclude his return to work.” On this testimony, the trial judge found that Haugh-ton’s myelomata, not the accident, caused his disability. The Court of Appeal concluded that the “medical evidence is controlling in this case and that plaintiff’s present disability is not causally connected to the work-related accident.” Haughton v. Fireman’s Fund, 349 So.2d 385, 387.

Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.

The orthopedic surgeon’s conclusion that Haughton could have returned to work in the absence of the myelomata is inconsistent with his other findings. First, Haugh-ton probably would not have suffered the broken leg (the “pathological fracture”) except for the weakening of the bone at the fracture site by the multiple myeloma. Second, the conclusion ignored other findings by the physician, that Haughton had a 25% disability of the left leg, could hardly bend it more than 90 degrees, and was unstable and painful. There was no medical evidence that these symptoms, nor the necessity for the cane in walking, were caused by anything other than the fracture. Finally, there was only slight consideration given to the nature of Haughton’s employment, which was of the most strenuous nature.

The uncontradicted medical opinions in the record do establish that the multiple myeloma was disabling, but the orthopedist’s opinion that the fracture was not disabling is contradicted by his own findings.

Professor Malone writes:

“In the trial of compensation cases medical experts are frequently requested to give their opinions as to the extent of the disability involved. The estimate of disability offered by the medical expert should not be confused with the estimate of disability which must eventually be made by the judge. The medical expert defines disability in terms of the physiological injury and its effect upon the performance of the mechanical operations which the claimant can perform prior to and after the accident. The material upon which he draws is largely that of anatomy, physiology, and body mechanics. .
“On the other hand, a court is called upon to determine disability according to a legal definition drawn by interpretation from the compensation statute furnished by the legislature. The law fixes disability in terms of loss of earning capacity, which includes the extent of the physiological impairment as only one factor. The function of the judge is much broader than that of the medical man, for loss of earning capacity, which is the eventual touchstone of all legal definitions of disability, can be determined only by reference to the state of the labor market, hiring practices, the humanity of obliging a man to work in pain, and other broad policy considerations which the physician is not equipped nor authorized to evaluate.
“Consequently, the court may properly find that a worker is totally disabled although the medical witnesses are in substantial agreement that the disability is only twenty or thirty percent. . . . ”
Malone, Louisiana Workmen’s Compensation, § 272 (Supp.1964).

See also Johnson v. The Travelers Insurance Co., 284 So.2d 888 (La.1973); Futrell v. Hartford Accident & Indemnity Co., 276 So.2d 271 (La.1973).

If an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job connected accident. But here there is no evidence of an intervening cause. Nothing happened to Haughton after the accident except his failure to recover. He did not suffer a new accident or disease. The disease he had when the accident occurred contributed to the injury itself.

When there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability. This simple guide, plainly stated in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), we affirmed in Johnson v. The Travelers Insurance Co., 284 So.2d 888 (La.1973) and reaffirmed in Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974). The presumption is not irrebuttable, but its effect is to shift the burden of proof to the defendant. This burden was not enforced by the courts below, and the defendant has failed to prove that Haughton’s accident did not cause his disability.

Therefore, the judgment of the Court of Appeal is reversed, and there is now judgment in favor of the substituted plaintiffs and against defendant, Fireman’s Fund American Insurance Companies, finding that Samuel Haughton was totally and permanently disabled by the accident of November 4, 1974, all at defendant’s cost.

The ease is remanded to the district court for computation of the amount due plaintiffs, and for further proceedings not inconsistent with the views expressed here.

      . On December 6, 1977, while the case was pending before this court, Samuel Haughton died of causes unrelated to the injury for which he claimed compensation. We granted a motion to substitute Lula Mae Davis, widow of Samuel Haughton, and Cora Haughton Mar-zett, Samuel Haughton, Jr. and Lillie Haughton Dede, Samuel Haughton’s surviving children, as parties plaintiff.

      . “ . . . ‘It has come to my attention that I have not answered your letter of March 17, 1976 in regard to Mr. Samuel Haughton. I read Dr. Fleming’s opinion and certainly agree; at the present time, Mr. Haughton is disabled from the point of view of this multiple myelo-ma. It is difficult for me as a hematologist to assess the functional capacity of his leg in relationship to his job. However, it is my opinion that this man will never be able to return to work because of his myeloma. He requires constant therapy for this disorder and at the present time, becomes symptomatic during and between treatments — ’
      Q Go on.
      A ‘I hope the above all — I hope the above will be helpful to you in fairly assessing this compensation problem.
      If I can answer any additional specific questions, please do not hesitate to let me know.’ Q Do you have any subsequent reports from Dr. Brown?
      A No, I do not."


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Robert Jack HOFFPAUIR, a/k/a Bobby Jack Hoffpauir, Appellant.
    No. 60837.
    Supreme Court of Louisiana.
    March 6, 1978.

      Emile A. Carmouche, Jr., Crowley, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert T. Cline, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was Convicted of manslaughter, La.R.S. 14:31, and sentenced to fifteen years imprisonment. He argues seven assignments of error upon his appeal. We find no merit in them and affirm.

Facts

Before summarizing the assignments, we state the background facts:

The defendant is charged with killing Glenn Russell. Russell’s tenant was the wife of the defendant’s nephew. Hearing that Russell had made an advance to the lady (put his arms around her), the defendant went to Russell’s residence at about 4:00 P.M. on January 11, 1977.

Before entering the residence, the defendant told a witness in a grocery store across the street that he was “fixing to kill a man.” The witness saw him shove Russell’s door open and enter Russell’s house.

About thirty minutes later, the defendant returned to the store. He asked the proprietor to call an ambulance and, then, the police. In the presence of three other witnesses, he stated, variously that “I hit the man once and he fell . . . he’s dying” and that “He thought he killed a man”..

The police arrived soon afterwards. They found Russell in his bedroom with his head and face bloody and a small table with its top broken off and blood and hair on it, and the bedroom in disarray.

At about 10:00 A.M. on the morning after the beating (i. e., on January 12), the police found the defendant sleeping at his mother’s house. They brought him to the police station where, after Miranda warnings, he gave them a statement. The substance of the statement is that the defendant was drinking with Russell in the latter’s home, that he left to get a six-pack of beer, and that when he returned he found Russell beaten up. The accused denied any argument with Russell.

Russell died eight days later in the hospital. The cause of death is shown to be one of two blows received, a blow over the forehead and one down the temple. It caused a skull fracture and brain damage.

Assignments of Error

We find no merit to the assignments of error:

Assignment 1: The defendant complains that his statement was involuntary because he was too intoxicated at the time to waive his rights to the assistance of an attorney. The evidence of the police officers, who arrested him at ten in the morning on the day following the beating, is to the effect that, while he smelled of his drinking the day previously, he exhibited no signs of intoxication and was apparently in full possession of his faculties. We find no error in the trial court’s determination that the state had borne its burden of proving beyond a reasonable doubt that the accused’s statement was made freely and voluntarily. See, e. g. State v. Bias, 352 So.2d 1011 (La.1977).

Assignment 2: The defendant complains of the denial of his motion to suppress as evidence a shirt and trousers belonging to him. They were apparently secured from his nephew’s house with the consent of the nephew. Aside from any other reason for lack of merit to this assignment, the evidence sought to be suppressed was not alluded to nor introduced in evidence.

Assignment 3: The defendant complains that the state was permitted to ask-leading questions of its own witness (the defendant’s niece), in violation of La.R.S. 15:277. The questions objected to were not leading questions. Aside from this, immediately subsequent to the objection, the state was permitted to establish that the niece was an unwilling witness and thus subject to interrogation by such questions. La.R.S. 15:277.

Assignment 4: The objections to admission of the defendant’s statement are without merit, for the reasons stated in our discussion of Assignment 1. No objection was made at the time of their introduction to the photographs of the victim and of the table allegedly used to beat him. Aside from no shown merit to the belated complaint by assignment of error, complaints as to their admissibility were waived by permitting their introduction into evidence without objection. La.C.Cr.P. art. 841.

Assignment 5: The defendant attempted to introduce into evidence an alleged response made to the defendant’s nephew by the victim when the latter was in the hospital. The response was, allegedly, to the effect that the defendant was not his assailant. The trial court indicated a willingness to receive this hearsay declaration if the defendant could advance any basis for excepting it from inadmissibility as hearsay. The defendant’s counsel was unable to do so at the time, and the state’s objection was sustained. (Nor does the record indicate that the response might have been admissible as a dying declaration made by a person in the immediate prospect of death and without hope of recovery. See Pugh, Louisiana Evidence Law 462 (1974) and State v. Vincent, 338 So.2d 1376 (La. 1976).)

Assignment 6: Since there was some evidence of the defendant’s guilt, no issue reviewable on appeal is presented by the motion for a new trial based on the contention that the verdict was contrary to the evidence presented.

Assignment 7: The defendant complains that the state did not afford him the pre-trial notice required by La.C.Cr.P. art. 768 before introducing his inculpatory statements to the witnesses in the grocery store immediately before and after the beating. Aside from the probable admissibility of these statements without the requisite prior notice (as res gestae), the defendant did not object to the introduction during the trial. His failure to object at the time waives his right to complain after the verdict of their admissibility. La.C. Cr.P. art. 841.

Decree

Finding no merit to the assignments of error, we affirm the conviction and sentence.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Henry A. REID, Jr.
    No. 61718.
    Supreme Court of Louisiana.
    March 8, 1978.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Roland T. Huson, III, R. Neal Wilkinson, Asst. Attys. Gen., Frank T. Salter, Jr., Dist. Atty., for plaintiff-appellant.
    Joe J. Tritico, J. Michael Veron, Lake Charles, for defendant-appellee.
   MARCUS, Justice.

Henry A. Reid, Jr., Sheriff of Calcasieu Parish, was charged by bill of information in count one with the crime of theft of public funds, services and things valued in excess of five hundred dollars in violation of La.R.S. 14:67. Prior to commencement of trial on this count, the state filed an application for a change of venue (La.Code Crim.P. art. 621) alleging, inter alia, that the power and influence of defendant as Sheriff of Calcasieu Parish rendered it impossible for the state to obtain a fair and impartial trial in that parish. After a hearing, the trial judge denied the state’s application for a change of venue. Pursuant to La.Code Crim.P. art. 912 Bib), the state took an appeal from the adverse ruling. The trial judge entered an order of appeal fixing the return date in the order. Subsequently, the trial judge extended the return date and specified the time within which the state was to designate in writing those errors to be urged on appeal and the state and defendant were to designate the portion of the record to be lodged in this court. Additionally, the state notified the trial judge of its intention to apply to this court for writs under our supervisory jurisdiction to obtain review of the adverse ruling. The state’s application was denied by this court on January 30, 1978. Thereafter, defendant filed with the trial court a motion to dismiss the state’s appeal, which was later amended, and a motion for a speedy trial. Because the jurisdiction of the trial court was divested and that of this court attached upon the entering of the order of appeal except for certain limited matters not present here (La.Code Crim.P. art. 916), the trial judge notified the state and defense counsel that he no longer had jurisdiction over the case and, therefore could not rule on defendant’s motions to dismiss and for a speedy trial. Subsequently, defense counsel filed with this court a motion to dismiss the state’s appeal from the adverse ruling on its application for a change of venue. An opposition to the motion to dismiss was filed by the state.

We grant defendant’s motion to dismiss the state’s appeal. Under La.Const. art. 5, § 5(D-E) (1974), the state has no right to invoke the criminal appellate jurisdiction of this court for our review of final pre-conviction adverse judgments or rulings, except in criminal cases in which a law or ordinance has been declared unconstitutional. State v. Twiner, 350 So.2d 608 (La.1977); State v. Nichols, 337 So.2d 1074 (La.1976); State v. James, 329 So.2d 713 (La.1976). Accordingly, La.Code Crim.P. art. 912 B is no longer applicable insofar as it permits the state to appeal final pre-conviction adverse judgments or rulings. Rather, where the state desires review of a final pre-conviction adverse judgment or ruling in a criminal case, application to this court for a writ of review is the proper procedure for the state to follow. La.Const. art. 5, § 5(A) (1974); State v. Twiner, supra; State v. Nichols, supra; State v. James, supra. Hence, we lack appellate jurisdiction to entertain the state’s appeal from the final pre-conviction adverse ruling on its application for a change of venue.

DECREE

For the reasons assigned, defendant’s motion to dismiss the state’s appeal is granted. Appeal dismissed.

DENNIS, J., concurs.

      . La.Code Crim.P. art. 912 B(5) provides:
      B. The state cannot appeal from a verdict of acquittal. Adverse judgments or rulings from which the state may appeal include, but are not limited to, judgments or rulings on:

      (5) A motion to change the venue;

      . No. 61,430, 354 So.2d 208 (La.1978).

      .In the instant case, the state followed this procedure by applying to this court for writs under our supervisory jurisdiction seeking review of the trial judge’s denial of its application for a change of venue in addition to appealing from the adverse ruling. This court denied the application. No. 61,430, 354 So.2d 208 (La. 1978).


text:
    LOUISIANA STATE BAR ASSOCIATION v. Harry A. HAMMILL.
    No. 61203.
    Supreme Court of Louisiana.
    Jan. 12, 1978.
   PETITION FOR LEAVE TO SURRENDER LICENSE TO PRACTICE LAW AND TO HAVE STRICKEN HIS NAME FROM THE ROLLS OF ATTORNEYS FOR THE PERIOD OF THREE YEARS (SUSPENSION ON CONSENT)

TO THE HONORABLE SUPREME COURT OF THE STATE OF LOUISIANA, THROUGH THE COMMITTEE ON PROFESSIONAL RESPONSIBILITY OF THE LOUISIANA STATE BAR ASSOCIATION:

The petition of HARRY A. HAMMILL, respondent herein, appearing herein personally and through his attorney, Mr. Camille F. Gravel, Jr., with respect represents:

1.

That HARRY A. HAMMILL was admitted to practice law in the State of Louisiana before this Honorable Court on June 10, 1955.

2.

That HARRY A. HAMMILL is presently under investigation by the Committee on Professional Responsibility with reference to certain specific charges of alleged misconduct all as set forth in copy of specifications dated August 30,1977, marked Exhibit A for identification herewith, attached thereto and made a part hereof as if copied “in extenso.”

3.

In keeping with the notice of August 30, 1977, a hearing was held before the Committee on Tuesday, October 4, 1977, and a copy of the transcript of that hearing is attached hereto, made a part hereof as if copied “in extenso” herein.

4.

That HARRY A. HAMMILL acknowledges that the material facts upon which the complaint and investigation are based are true, subject to mitigating factors as set forth in the transcript attached hereto.

5.

That HARRY A. HAMMILL suggests that a three-year suspension from the practice of law is appropriate discipline for the alleged misconduct herein.

6.

That HARRY A. HAMMILL herein petitions this Court for leave to surrender his license to the practice of law for a period of three (3) years after January 1, 1978, or from the date of this Court’s order, whichever is later, thus resulting in his suspension for that period by his own consent.

7.

HARRY A. HAMMILL acknowledges and declares that his suspension on consent is freely and voluntarily submitted; it is not the result of coercion or duress and HARRY A. HAMMILL is fully aware of the implications of his suspension.

WHEREFORE, HARRY A. HAMMILL PRAYS that he be allowed to surrender his license and that same be revoked and can-celled and, further, that his name be stricken from the rolls of attorneys authorized to practice law in the State of Louisiana, all for the limited period of three (3) years from January 1, 1978, or from the date of this Court’s Order, whichever is later, thus resulting in his suspension for that period by his own consent.

ORDER

The foregoing petition, the premises, and the law considered:

IT IS ORDERED, ADJUDGED AND DECREED

That HARRY A. HAMMILL be and he is hereby suspended from the practice of law in the State of Louisiana, for a period of three (3) years, from the First day of January, 1978.

JOE W. SANDERS Chief Justice

FRANK W. SUMMERS Associate Justice

ALBERT TATE JR. Associate Justice

PASCAL F. CALOGERO JR. Associate Justice

WALTER F. MARCUS JR. Associate Justice

DIXON' and DENNIS, JJ.,

cannot say the recommendation for suspension is erroneous, but would remand for amplification of the record on the question of mitigation.


author: JOE W. SANDERS, Chief Justice.

text:
    DAPHINE STERLING ETHERIDGE v. UNION NATIONAL LIFE INSURANCE COMPANY.
    No. 60655.
    Supreme Court of Louisiana.
    Jan. 19, 1978.
   JOINT MOTION AND ORDER

On joint motion of Daphine Sterling Eth-eridge, plaintiff-applicant, and Union National Life Insurance Company, defendant-respondent, and on suggesting to the Court that this matter has been compromised and settled and that, therefore, plaintiff-applicant desires to dismiss her suit, with prejudice.

ORDER

Considering the foregoing joint motion;

IT IS ORDERED that plaintiff-applicant’s, Daphine Sterling Etheridge, suit be dismissed with prejudice.

JOE W. SANDERS, Chief Justice.


text:
    In the Matter of Berwick LAGARDE, Jr.
    No. 61613.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Dianne and Berwick Lagarde, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of Orleans.

Granted — Appeal reinstated without bond. In re Jackson, La., 294 So.2d 517; In re Curley, La.App., 287 So.2d 558; In re Salmon, La.App., 318 So.2d 897.


author: SANDERS, C. J., SUMMERS, J.,

text:
    Dyke SPEAR, D/B/A Broadway Productions v. STATE of Louisiana and City of Lake Charles.
    No. 61681.
    Supreme Court of Louisiana.
    Feb. 27, 1978.
   In re: Dyke Spear, d/b/a Broadway Productions applying for writ of review and stay order. Calcasieu Parish.

Writ granted. Failing to have seen the play “Oh! Calcutta,” the trial judge erred in granting a preliminary injunction; accordingly, it is ordered that the injunction be vacated and set aside. See La.R.S. 14:106, La.R.S. 13:4711 et seq.

SANDERS, C. J.,

dissents from the granting of the writ. Obscenity is tested by a community standard. The showing made is insufficient to justify disturbing the ruling of the trial judge.

SUMMERS, J.,

dissents. Based upon the community standards the trial judge in that community found “Oh! Calcutta!” to be an exhibition of hard core sexual conduct. In doing so he applied the requirements established by law. I therefore dissent from the granting of this writ and would not disturb the ruling of the trial judge. This court’s action is taken without a review of the evidence.


text:
    STATE of Louisiana ex rel. Bobby Ray SPATES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 61426.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Bobby Ray Spates applying for writ of habeas corpus. Parish of Caddo.

The order to the trial judge to appoint counsel and resentence applicant with benefit of counsel is annulled and set aside. This application is denied. See also # 58107 on the docket of this Court.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Leonard S. UNGAR, Respondent.
    No. 60619.
    Supreme Court of Louisiana.
    March 5, 1978.
   PETITION FOR LEAVE TO SURRENDER LICENSE TO PRACTICE LAW AND TO HAVE STRICKEN HIS NAME FROM THE ROLLS OF ATTORNEYS FOR A PERIOD OF SIX (6) MONTHS SUSPENSION ON CONSENT

TO THE HONORABLE SUPREME COURT OF THE STATE OF LOUISIANA, THROUGH THE COMMITTEE ON PROFESSIONAL RESPONSIBILITY OF THE LOUISIANA STATE BAR ASSOCIATION

The Petition of Leonard S. Ungar, Respondent herein, appearing herein personally and through Arthur A. Lemann III, his attorney, with respect represents.

I.

That Leonard S.' Ungar was admitted to practice law in the State of Louisiana before this Honorable Court on June 6, 1942.

II.

That on September 9, 1977, the Louisiana State Bar Association through the Committee on Professional Responsibility filed a “Petition for Disciplinary Action” against Leonard S. Ungar under the above title and docket number of this Court; said Petition being based upon the Committee on Professional Responsibility finding after its investigations including hearings that Leonard S. Ungar had been guilty of violations of the laws of this State relating to the professional conduct of lawyers and to the practice of law of sufficient gravity as to evidence a lack of fitness for the practice of law, specifically as set out in “EXHIBIT A” and

“EXHIBIT B” attached to said Petition of September 9, 1977. Copies of said “EXHIBIT A” and “EXHIBIT B” are attached hereto for ready reference by the Court.

III.

That there are on file under the above caption and docket number of this Court, transcripts of the aforesaid hearings which are made part hereof by reference.

IV.

That Leonard S. Ungar acknowledges that the material facts upon which said “Petition for Disciplinary Action” is based are true subject to the circumstances attendant thereon as set forth in the aforesaid transcripts made part hereof by reference.

V.

That Leonard S. Ungar suggests that a six (6) months suspension from the practice of law is appropriate discipline for the misconduct alleged, taking into consideration all circumstances attendant thereon and in connection therewith. Leonard S. Ungar bases his suggestion in part on the following:

(a) The misconduct alleged in “EXHIBIT A” and “EXHIBIT B” did in no way involve the commingling or conversion of clients’ funds.

(b) That as spelled out in said “EXHIBIT A” and “EXHIBIT B” said acts of misconduct centered around alleged acts of solicitation of employment as an attorney by Leonard S. Ungar in violation of DR 2-103 of the Code of Professional Responsibility, including solicitation of a party represented by an attorney and attempts to discredit such attorney in violation of DR 1-102 of the Code of Professional Responsibility.

(c) That at least in part, and to some degree, the sentiments of this Court in the case of Louisiana State Bar Association versus Edwins, La., 329 So.2d 437 (1976) have some application herein.

VI.

Leonard S. Ungar herein petitions this Court for leave to surrender his license to practice law for a period of six (6) months from the date of this Court’s Order, thus resulting in his suspension for that period by his own consent.

VII.

Leonard S. Ungar acknowledges and declares that his suspension on consent is freely and voluntarily submitted; it is not the result of coercion or duress and Leonard S. Ungar is fully aware of the implications of his suspension.

WHEREFORE, Leonard S. Ungar Prays he be allowed to surrender his license and that the same be revoked and cancelled, further, that his name be stricken from the rolls of attorneys authorized to practice law in the State of Louisiana, all for the limited period of six (6) months from the date of this Court’s Order thus resulting in his suspension for that period by his own consent.

ORDER

The foregoing Petition, the premises, and the law considered:

IT IS ORDERED, ADJUDGED, AND DECREED

That LEONARD S. UNGAR be and he is hereby suspended from the practice of law in the State of Louisiana for a period of Six (6) Months from the date of this Order, all at the cost of Respondent, Leonard S. Un-gar.

JOE W. SANDERS Chief Justice

FRANK W. SUMMERS Associate Justice

ALBERT TATE JR. Associate Justice

PASCAL F. CALOGERO JR. Associate Justice

WALTER F. MARCUS JR. Associate Justice

DIXON J.,

is of the opinion The Bar Ass’n should more fully articulate the mitigating circumstances.


text:
    STATE of Louisiana v. Salvadore OVELLA.
    No. 61027.
    Supreme Court of Louisiana.
    March 8, 1978.
   ORDER

On motion of the defendant-relator in the above captioned matter, it is ordered that the writ previously granted 353 So.2d 1035, be dismissed.


text:
    STATE of Louisiana v. Joseph TONEY.
    No. 61764.
    Supreme Court of Louisiana.
    March 10, 1978.
   In re: Joseph Toney applying for remedial writs and stay order. Orleans Parish.

Writ denied. Adequate Remedy by review in the event of conviction.


text:
    Robert L. RABORN v. LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION et al.
    No. 60718.
    Supreme Court of Louisiana.
    March 13, 1978.
   MOTION TO DISMISS

NOW INTO COURT come Robert L. Ra-born, plaintiff-appellant-applicant in the above matter and on suggesting to the court that he now wishes to dismiss his application and writ now before this court which was argued on the 6th day of March, 1978, and is now under consideration by the Court, with prejudice.

IT IS ORDERED that the above matter is hereby dismissed at the cost of the plaintiff-appellant-appellant, Robert L. Raborn, with prejudice.

JOE W. SANDERS Chief Justice

FRANK W. SUMMERS Associate Justice

ALBERT TATE JR. Associate Justice

JOHN A. DIXON JR. Associate Justice

PASCAL F. CALOGERO JR. Associate Justice

WALTER F. MARCUS JR. Associate Justice

JAMES L. DENNIS Associate Justice


text:
    STATE of Louisiana v. William E. CRETSINGER.
    No. 61825.
    Supreme Court of Louisiana.
    March 16, 1978.
   In re: William E. Cretsinger applying for remedial writs and stay order. St. Mary Parish.

Writ denied; and stay order vacated. Adequate showing for extradition made.


text:
    William Travis ALLISON, Paula A. Perrone and Allison and Perrone (a Professional Law Corp.) v. LOUISIANA STATE BAR ASSOCIATION.
    No. 61047.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: William Travis Allison, Paula Anne Perrone, and Allison and Perrone (A Professional Law Corp.) applying for in-junctive relief and a declaratory judgment. Orleans Parish.

Application Granted. • It is ordered that the matter be placed on docket for oral argument.


text:
    STATE of Louisiana ex rel. Jessie MARTIN v. C. Paul PHELPS, Director Dept. of Corrections.
    No. 61449.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Jessie Martin, applying for remedial writs. Parish of Livingston.

Writ granted. Evidentiary hearing ordered.


text:
    STATE of Louisiana v. Mark J. LAMARTINIERE.
    No. 61621.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: State of Louisiana applying for writ of certiorari. Parish of Tangipahoa.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Gordon E. Causey, Judge of the 21st Judicial District Court, for the Parish of Tangipa-hoa, to transmit to the Supreme Court of Louisiana, on or before the 31st day of March, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Melvin Dean FORD.
    No. 61664.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Melvin Dean Ford applying for supervisory and remedial writs. Parish of Orleans.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank A. Marullo, Jr., Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 31st day of March, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Ulyses SMITH v. STATE of Louisiana.
    No. 61679.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Ulyses Smith applying for writ of Mandamus. Parish of Jefferson.

Granted. Relator is to be supplied with the transcription of his prior conviction. (Per prayer).


text:
    STATE of Louisiana v. Ronald D. LEGENDRE.
    No. 61719.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Ronald D. Legendre applying for writs of certiorari and review. Parish of East Baton Rouge.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable John S. Covington, Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 31st day of March, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. James WILLIAMS.
    No. 61772.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: James Williams, applying for writ of certiorari. Parish of Orleans.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank Shea, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 31st day of March, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Newell A. TAYLOR v. Hayden J. DEES, Warden.
    No. 60583.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Newell A. Taylor, applying for writ of certiorari. Parish of Ouachita.

Writ denied. Evidentiary hearing set for March 23, 1978. Application is moot.


text:
    STATE of Louisiana ex rel. Rudolph WILSON v. Hon. Frank J. SHEA, Judge, Criminal Dist. Court, Section “6”.
    No. 61021.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Rudolph Wilson, Sr., applying for writ of mandamus. Parish of Orleans.

Writ denied. The mandamus application is moot. The evidentiary hearing has been held.


text:
    STATE of Louisiana v. Dewayne C. MORRIS, Sr., Dewayne C. Morris, Jr., Helen Morris.
    No. 61193.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Dewayne C. Morris, Sr., Dewayne C. Morris, Jr., Helen Morris, applying for writ of certiorari, prohibition and mandamus. Parish of Rapides.

Denied.


text:
    STATE of Louisiana v. William MALMAY.
    No. 61603.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: William Malmay, applying for writs of certiorari, mandamus, prohibition and review. Parish of Sabine.

Writ denied.


text:
    STATE of Louisiana v. Colin McGREGOR.
    No. 61625.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: State of Louisiana applying for certiorari, mandamus and prohibition. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Earl CLARK.
    No. 61666.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Earl Clark applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Plaquemines.

Denied.


text:
    STATE of Louisiana v. Robert SMITH.
    No. 61676.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Robert Smith, applying for writ of mandamus and certiorari. Parish of Moore-house.

Writ denied.


text:
    STATE of Louisiana ex rel. Thomas Lewis GARNER v. STATE of Louisiana.
    No. 61677.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Thomas Lewis Garner, applying for writs of habeas corpus and certiorari. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Richard BROWN v. Harold M. TERRY, Sheriff of Caddo Parish.
    No. 61680.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Richard Brown, applying for writ of certiorari. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Lovair McCOY.
    No. 61702.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Lovair McCoy applying for writs of habeas corpus and mandamus. Parish of Caddo.

Denied.


text:
    STATE of Louisiana ex rel. Kenneth Lee MOORE v. COURT REPORTER, CRIMINAL DISTRICT COURT, SEC. “F”, PARISH OF ORLEANS.
    No. 61703.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Kenneth Lee Moore, applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Larry AARON.
    No. 61706.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Larry Aaron, applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of Grant.

Denied.


text:
    STATE of Louisiana v. William MICHAEL.
    No. 61715.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: William Michael applying for supervisory and remedial writs. Parish of Orleans.

Denied.


text:
    In the Matter of Delta ORTEGO v. ARGONAUT INSURANCE CO. et al.
    No. 61721.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: D. B. Littlefield, et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles.

Writ denied.


text:
    STATE of Louisiana v. Paul SANDERS.
    No. 61723.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Paul Sanders applying for writs of certiorari.

Writ denied.


text:
    STATE of Louisiana v. James Louis SENEGAL.
    No. 61725.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: James Louis Senegal applying for writ of habeas corpus. Lafayette Parish.

Writ denied.


text:
    STATE of Louisiana v. Walter DAVIS.
    No. 61726.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Walter Davis applying for supervisory writs. Orleans Parish.

Denied.


text:
    Pete O. GOODLY v. Dorothy WELLS, Harry Connick, District Attorney for Orleans Parish and Ossie Brown, District Attorney for East Baton Rouge Parish.
    No. 61758.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Pete O. Goodly applying for supervisory writs and stay order. Orleans Parish.

Stay order recalled. Writ denied.


author: HOOD, Judge.

text:
    Shirline Horton MEGASON et vir., Plaintiffs-Appellants, v. ST. PAUL FIRE & MARINE INSURANCE CO. et al., Defendants-Appellees.
    No. 6008.
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 1977.
    Rehearing Denied Sept. 21, 1977.
    Writ Refused Nov. 11, 1977.
    Martin Sanders, Winnfield, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Jack Carlisle, Shreveport, Gold, Hall, Ham-mill & Little by Leo Gold, Alexandria, Brit-tain & Williams by Jack O. Brittain, Natch-itoches, for defendants-appellees.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

Mr. and Mrs. Olin Travis Megason claim damages for injuries sustained by Mrs. Me-gason when a laparotomy pad was left in her abdominal cavity following surgery. The suit was instituted against the hospital, the chief surgeon, the assisting surgeon, and their insurers. Plaintiffs settled their claims against the hospital and the chief surgeon prior to trial, and the suit was tried only on their claim against the assisting surgeon, Dr. James V. Kaufman, and his insurer, Continental Insurance Company.

Judgment was rendered by the trial court in favor of defendants. Plaintiffs appealed. We affirm.

The sole issue presented is whether the assisting surgeon was negligent, and whether he thus is responsible for the injuries sustained by plaintiffs.

Mrs. Megason underwent abdominal surgery in the Natchitoches Parish Hospital on August 24, 1970. Dr. Charles E. Cook, plaintiffs’ family physician, performed the operation as chief surgeon, and Dr. Kaufman was the assisting surgeon. Almost two years later plaintiff discovered that a sponge had been left in the peritoneal cavity during the operation. A laparotomy pad, or “lap sponge,” was surgically removed from Mrs. Megason’s abdomen on August 2, 1972. This suit was instituted a few months later.

Shortly before the first surgery was performed in 1970, Dr. Cook asked Dr. Kaufman to assist him in performing the operation. Dr. Kaufman had never seen or treated Mrs. Megason prior to that time. The surgery was performed in accordance with the hospital’s usual and standard procedures, particularly with reference to the counting and checking of sponges before the wound was closed. The chief surgeon, the assisting surgeon, a “scrub nurse” and a “circulating nurse” were present during the entire operation.

Immediately prior to the performance of the surgery the nurses counted and made a record of the number of sterile sponges which were available for use in that procedure. After the surgery was completed and before the incision was closed, the chief surgeon, Dr. Cook, called for a sponge count. The circulating nurse thereupon counted the number of sponges which had been used and removed from plaintiff’s abdomen, while the scrub nurse counted the number of unused sponges which remained on the sterile field. They compared their figures and determined that all sponges had been accounted for. They reported that fact to Dr. Cook, and he thereupon proceeded to close and suture the incision.

Both of the above nurses testified that they counted the sponges carefully and thought that the count was correct. They do not understand how they failed to account for one sponge. One of the nurses stated that Dr. Cook participated in the counting of the sponges, and that he checked to make sure that the sponge count was correct. The other nurse did not recall seeing Dr. Cook check the sponge count on that occasion, but she stated that that is the usual procedure, and that she had “never seen it not done.” Both testified that Dr. Kaufman did not participate in counting the sponges, but that it had never been the practice in Natchitoches Parish for the assisting surgeon “to count sponges and participate in the sponge count.”

Six doctors, including Dr. Kaufman but not Dr. Cook, testified at the trial or by deposition. Four of them practiced medicine in Natchitoches Parish. All of them except one, Dr. L. R. Collier, testified unequivocally that it was not the duty or responsibility of the assisting surgeon at any time to participate in counting sponges or in checking on the count of sponges following surgery. They stated that in an operation of this type, the assisting surgeon does not place a sponge or a surgical instrument in the abdominal cavity, or even put his hands in that cavity, unless the chief surgeon asks or instructs him to do so. They consider it to be the sole responsibility of the chief surgeon, not the assisting surgeon, to order the sponge count, to check on that count, and to determine that all sponges have been removed from the abdomen before the incision is closed. Good reasons were assigned for that practice, some of which are that the opening is relatively small and there is not room for two surgeons to work in it, the assisting surgeon is not in as good a position as is the chief surgeon to see in the cavity, the assisting surgeon might break an abscess or damage some surgical work which had been done by the chief surgeon, and the assisting surgeon may cause unnecessary trauma to the patient if he places his hands in the cavity.

Dr. Collier, who removed the lap sponge from Mrs. Megason’s abdomen in 1972, testified that in performing abdominal surgery it is “primarily the function of the chief surgeon” to check and to see that all sponges have been removed from the cavity. He stated that if the nurses report that the sponge count is correct and the chief surgeon examines the abdomen for sponges, he feels that the assistant surgeon then would be relieved from any duty to examine the patient further for sponges. He expressed the view, however, that if the chief surgeon did not palpate the abdomen to determine whether any sponges remained in it before closing the incision, then it would be the duty of the assistant surgeon to do so. He conceded that he has served as an assisting surgeon only twice in the past twelve years, and that on both of those occasions he did not make a sponge count or check to see whether the sponges had been removed, because the chief surgeon did not instruct him to do so.

The trial judge decided that “assisting surgeons in the Natchitoches medical com-mmunity do not count sponges, that this is entirely out of the scope of the assisting surgeon’s responsibilities,” and that the chief surgeon has the responsibility of seeing that all procedures required in the performance of the surgery are performed correctly. He concluded that Dr. Kaufman violated no duty owed to plaintiffs and that he was free from negligence.

The law imposes a duty on a physician or surgeon to exercise the degree of skill ordinarily employed under similar circumstances by members of his profession in good standing in the same community or locality, and to use reasonable care and diligence along with his best judgment in the application of his skill to the case. Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953).

Our Supreme Court has held that, as a general rule, the failure of the chief surgeon to remove a sponge or pad before closing an incision may be regarded as negligence per se. See Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969). Plaintiffs rely on that case, and they argue that the same general rule should be applied to a surgeon who assists in the operation.

Both parties concede that the question presented here, that is, whether the duties imposed on the chief surgeon with respect to the removal and counting of sponges also are imposed on the assisting surgeon, is res novo in Louisiana. Plaintiffs, however, cite and rely on Conrad v. Lakewood General Hospital, 67 Wash.2d 934, 410 P.2d 785 (1966), where the Supreme Court of Washington held that both the chief surgeon and the assisting surgeon were responsible for leaving a hemostat (a metal, scissor-like surgical instrument) enclosed in the plaintiff’s abdomen. In that case both surgeons utilized those surgical instruments in the patient’s abdominal cavity to stop bleeding, and it was impossible to determine which of them failed to remove a hemostat which he had inserted. Surgeons in that locality did not make a practice of counting the surgical instruments used in the operation to determine whether one was left in the cavity. The court refused to overturn a jury verdict which found that the assisting surgeon as well as the chief surgeon was liable, on the ground that the jury could have concluded that the assistant surgeon “negligently failed to remove a hemostat which he inserted in the plaintiff’s abdomen”, or that “he failed to observe that (the chief surgeon) negligently misplaced such an instrument or was careless in examining the operative field before closing the wound.”

We distinguish Conrad, supra, from the instant suit because of the difference in facts. Here, Dr. Kaufman did not insert any pads in Mrs. Megason’s abdominal cavity, he had no authority to remove any pads which may have been inserted, and there is no showing that he should or could have observed that the chief surgeon was careless in examining the operative field. If Conrad can be construed to be in conflict with the holding of the trial court in the instant case, however, then we respectfully disagree with the views expressed by the Washington court insofar as such a conflict may exist.

We think the medical evidence preponderates to the effect that in Natchi-toches Parish the assisting surgeon is not responsible for counting sponges, or for checking on the count of sponges made under the direction of the chief surgeon. So far as we can determine from the evidence, that practice is general in the medical profession and is not restricted to Natchitoches Parish. Dr. Collier, who incidentally practices in Winnfield and does not perform surgery in Natchitoches Parish, feels that a duty to check on the sponge count is imposed on the assisting surgeon under some circumstances. The evidence in the instant case indicates, however, that the chief surgeon checked the sponge count before closing the incision, and we believe that Dr. Kaufman thus was relieved from the duty of making another check of the sponges, even if Dr. Collier’s views as to the standards of the medical profession should be accepted. Since Dr. Kaufman had no authority to examine plaintiff’s abdomen for lost sponges in the absence of instructions to do so by the chief surgeon, we believe he should not be held responsible for the failure to discover that one such sponge had been left in the abdominal cavity when the wound was closed.

Our conclusion is that Dr. Kaufman, as the assisting surgeon, did not owe plaintiffs a duty of counting the sponges or of checking to see that all of the sponges used in performing the surgery had been removed before the incision was closed. He thus was not negligent in having failed to determine that a laparotomy pad had been left in plaintiff’s abdomen when the operation was concluded.

There thus is no error in the judgment of the trial court which relieves Dr. Kaufman and his insurer from liability.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.


text:
    McNallen J. REED et al., Plaintiffs-Appellees, v. AMERICAN MOTORISTS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6047.
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 1977.
    Rehearing Denied Sept. 21, 1977.
    Writ Refused Nov. 11, 1977.

      Voorhies & Labbé by Mark D. Bienvenu, Davidson, Meaux, Sonnier & Roy, Richard C. Meaux, Lafayette, for defendants-appellants.
    Donald Soileau, Mamou, for plaintiffs-ap-pellees.
    Before HOOD, HEARD and ROGERS, JJ.
   HOOD, Judge.

This is an action for damages arising out of a collision between an automobile being driven by Mrs. Anna S. Reed and a station-wagon being driven by Thomas M. Jones. Mrs. Reed and her husband, Etley Reed, died of injuries which they received in that accident. Three grandchildren of Mr. and Mrs. Reed, who were riding as passengers in their car, also were injured as a result of the collision.

The plaintiffs in the present suit are (1) the four surviving children of the late Etley Reed, who claim damages individually and as survivors of their deceased father, and (2) McNallen J. Reed, who claims damages individually and on behalf of his three minor children for the injuries sustained by his children in that accident. The defendants are American Motorists Insurance Company (the insurer of the Reed vehicle), ACF Industries, Inc. (the employer of Jones and owner of the stationwagon involved in the accident), and the.latter’s insurer, Aet-na Casualty and Surety Company. Plaintiffs settled their claims against American Motorists prior to trial, and the case was tried solely on their demands against the remaining defendants, ACF Industries and Aetna.

A separate suit was filed by ACF Industries and Aetna against the Estate of Mr. and Mrs. Etley Reed. In that action Aetna seeks to recover the compensation benefits it paid to Jones, and ACF Industries claims property damages allegedly sustained by it as a result of the accident. That suit and the instant one were consolidated for trial and appeal.

The trial judge concluded that the drivers of both vehicles were negligent. In the instant suit he rendered judgment in favor of plaintiffs and against ACF Industries and Aetna. In the companion suit, he rendered judgment in favor of defendant, Estate of Mr. and Mrs. Etley Reed, rejecting the demands of the plaintiffs in that action. ACF Industries and Aetna appealed. We are rendering a separate judgment in each case on this date. See Aetna Casualty and Surety Company, et a1. v. Reed, et al., 355 So.2d 952 (La.App.1977).

The sole issue presented in these companion suits is whether Thomas M. Jones, the driver of the stationwa'gon involved in the accident, was negligent.

The collision occurred about 4:00 P.M., on May 1, 1970, on Interstate 10 Highway, in Acadia Parish. Immediately before and at the time of the accident Jones was driving his employer’s stationwagon west, in the westbound lane of traffic, on that highway. Mrs. Reed at that time was driving an automobile east, or in the wrong direction, in the westbound lane of traffic on the same highway. The vehicles collided head-on, with the result that all of the occupants of the Reed car were injured. Mrs. Reed died almost instantly. Her husband died 24 days later of the injuries he received. Each of the three minor children in that car sustained serious injuries.

The automobile being driven by Mrs. Reed was owned by Robert 0. Guintard. There was in effect at the time of the accident an automobile liability policy issued to Guintard by American Motorists covering that automobile. Mrs. Reed was driving the car with Guintard’s permission, and she was an insured under the above policy.

The highway at the site of the accident was a relatively new, concrete, four-lane, divided highway, which ran generally east and west. Two lanes were designated for westbound traffic, and two were for eastbound vehicles. The westbound lanes were separated from the eastbound lanes by a grass covered neutral ground, about 44 feet wide, which sloped gently to a ditch in the center. The bottom of the ditch was about five feet below the level of the surface of the highway. The concrete slab making up the two westbound lanes of traffic were 24 feet wide. There were blacktopped shoulders on each side of that slab, the shoulder along the south edge of the westbound lane being six feet wide and the shoulder along the north edge of the slab being ten feet wide. At the time of the accident, the weather was clear, the highway was dry and visibility was good.

Shortly before the collision occurred, Jones drove over an overpass at the point where Interstate 10 crosses Louisiana Highway 13. He overtook and passed an automobile being driven by Robert L. Vincent as he started up that structure, and he completed his passing maneuver just before he reached the crest of the overpass. Jones travelled in the inside (that is, the left or southernmost) lane for westbound traffic as he went over the overpass, and he remained in that lane thereafter until the collision occurred. The Vincent car travelled in the outside (that is, the right or northernmost) lane for westbound traffic as it went over the overpass. When Jones reached the crest of the overpass the Vincent car was about three or four car lengths behind him, in the outside lane.

Vincent was driving 60 miles per hour as he negotiated the overpass, and Jones was driving at a speed of 70 miles per hour, which was the maximum speed limit at that time.

Jones testified that as soon as he reached the crest of the overpass and could see the highway extending west from that point he observed the Reed car about 300 feet directly in front of him, travelling east, or in the wrong direction, in his lane of traffic. He testified that he applied his brakes immediately in an unsuccessful attempt to avoid a collision, and he thinks he travelled a distance of “a hundred feet or so” between the time he first saw the Reed car and the time the collision occurred. He explained that he could not veer to his right because of the presence of the Vincent car in the right lane, and he could not turn to his left because there was a deep gully along the south edge of the pavement.

Jones made it clear that when he first observed the Reed car he could see that it was “coming toward” him. He estimated that it was travelling at a speed of between 40 and 50 miles per hour at that time. He stated that he “had no difficulty” in determining that the Reed vehicle was “coming toward . . . rather than travelling away” from him when he first observed it, because “you don’t have headlights on the back of a car.” He did not see the Reed car enter Interstate 10, or make a U-turn on that highway, or attempt to leave the inside westbound lane of traffic at any time before the collision occurred.

Vincent’s testimony supports that of Jones in some respects. Vincent testified, for instance, that the brake lights on the Jones vehicle came on immediately after Jones reached the crest of the overpass, and that the accident occurred “a second,” or “five seconds,” or “an instant” later, when Jones was “about half way down the overpass.”

Other evidence produced at the trial contradicts the statements of Jones and Vincent as to the location of the Reed car when Jones first saw it. The testimony of the state trooper who investigated the accident, for instance, together with photographs taken at the scene while the wrecked vehicles were still there, establish beyond question that the collision occurred four-tenths of a mile, or 2,112 feet, west of the crest of the overpass. The highway was straight and level at that point. There was no “sharp ditch” or “gully” on the south edge of the pavement. The Jones station wagon left skid marks, about 100 feet long, leading up to the point of impact, and there was no evidence that it left any other skid marks. The collision occurred in the inside, or southernmost, lane for westbound traffic, so it is obvious that Jones made no attempt to veer out of that lane to avoid a collision. The investigating officer estimated that Mrs. Reed was travelling east at a speed of about 30 miles per hour when the vehicles collided.

The evidence convinces us, as it did the trial judge, that Jones drove his vehicle a distance of 2,112 feet between the time he reached the crest of the overpass and the time the collision occurred. There was no traffic on the highway at that time, other than the Jones, Vincent and Reed vehicles, and Jones’ view of the highway ahead of him was clear and unobstructed after he reached the top of the overpass. From that point he could have seen vehicles on the highway west of the overpass at distances of considerably more than 2,112 feet from the crest of that structure.

Considering the speeds at which both vehicles were travelling, and the point where the collision occurred, we find that when Jones reached the crest of the overpass the Reed car was in the westbound lane of traffic, at least 3,000 feet in front of him. Jones could have seen the Reed vehicle at that time, and at all times thereafter until the collision occurred, if he had been maintaining a proper lookout. He concedes that he did not see the Reed car until he reached a point about 300 feet from it, and the evidence shows that he did not attempt to apply his brakes until he was within that distance from the point of impact.

We agree with the trial judge that Jones was negligent in failing to maintain a proper lookout and in failing to bring his vehicle to a stop or to take some other appropriate evasive action when the danger should have become apparent to him.

Defendants argue, however, that the sudden emergency doctrine should be invoked to exonerate Jones from fault. We find no merit to that argument.

A motorist cannot take advantage of the sudden emergency doctrine and thus exonerate himself from fault, if the emergency is brought about or contributed to by his own negligence. Dick v. Phillips, 253 La. 366, 218 So.2d 299 (1969); Stonewall Insurance Company v. Cross, 244 So.2d 327 (La.App. 3 Cir. 1971), and Nichols v. Aetna Casualty & Surety Company, 240 So.2d 568 (La.App. 2 Cir. 1970).

In Stonewall Insurance Company v. Cross, supra, where an issue similar to the one presented here was considered, we said:

“The evidence convinces us that Cross was negligent in failing to bring his car to a stop before he reached the parked Morrison automobile. He saw the unidentified Oldsmobile careening in both lanes of traffic when he had ample time within which to stop, and yet he did not apply his brakes or make any attempt to bring his car under control until a moment before the collision occurred. His negligence in failing to stop before he reached the parked car was a proximate cause of the accident.”
“In the instant suit, we find that Cross brought about or contributed to the emergency by his own negligence in failing to reduce the speed of his car or in failing to bring it to a stop after he observed the danger and before any emergency existed. He and his insurer thus cannot invoke the sudden emergency doctrine to exculpate Cross from fault.”

We concede that in the instant suit Jones was confronted with an emergency when he first observed the Reed vehicle approaching in his lane of traffic, a relatively short distance in front of him. That emergency, however, was brought about or contributed to by Jones’ failure to observe the Reed vehicle long before he reached that point. Although Mrs. Reed clearly was negligent in driving in the wrong lane of traffic, a “sudden emergency” would never have existed if Jones had maintained a proper lookout and would have seen her shortly after he reached the crest of the overpass, when Mrs. Reed was more than half a mile away. If Jones had maintained a proper lookout, we think he would have had ample time within which to take some deliberate action to avoid an accident. The emergency which came into existence later, therefore, was brought about or contributed to by Jones himself. Under those circumstances, we hold that Jones cannot be exonerated from fault under the sudden emergency doctrine.

Defendants contend, however, that Mrs. Reed made a U-turn in the westbound lane of Interstate 10 shortly before the collision occurred, and they argue that Jones should be exonerated from fault under the sudden emergency doctrine since the evidence fails to show where or when that maneuver was made.

The evidence does not show that Mrs. Reed made a U-turn on the highway before this accident occurred. Even if we assume that she made such a maneuver, however, we must also assume that it was made more than 2,112 feet west of the crest of the overpass, because the collision occurred at that point and the Reed car was travelling east at that time. If she made a U-turn after Jones reached the top of the overpass, he must be held to have observed that maneuver in ample time to avoid a collision. If the alleged U-turn was made before Jones reached the crest of the overpass, then such a maneuver did not contribute in any way to the accident. We thus find no merit to this argument by defendants. Although Mrs. Reed was negligent, the evidence convinces us that Jones should have discovered that she was travelling in the wrong lane and would not yield the right of way to him, and that that discovery should have been made in ample time to permit him to avoid a collision. Under those circumstances, we think Jones was under a duty to take some appropriate action in an attempt to avoid an accident, and that he was negligent in failing to do so. His negligence in that respect was a proximate cause of the accident.

We find no error in the judgment of the trial court which condemns Jones’ employer, ACF Industries, Inc., and its insurer, Aetna Casualty and Surety Company, to pay damages to plaintiffs.

No issues are raised on this appeal as to the reasonableness of the awards made by the trial court.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.


text:
    AETNA CASUALTY AND SURETY COMPANY et al., Plaintiffs-Appellants, v. McNallen J. REED et al., Defendants-Appellees.
    No. 6048.
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 1977.
    Rehearing Denied Sept. 21, 1977.
    Writ Refused Nov. 11, 1977.

      Yoorhies & Labbé by Mark D. Bienvenu, Davidson, Meaux, Sonnier & Roy, Richard C. Meaux, Lafayette, for defendants-appellants.
    Donald Soileau, Mamou, for plaintiffs-ap-pellees.
    Before HOOD, HEARD and ROGERS, JJ.
   HOOD, Judge.

Aetna Casualty and Surety Company and ACF Industries, Inc., instituted this action against the Estate of Mr. and Mrs. Etley Reed. Their claims arose out of a motor vehicle collision which occurred on May 1, 1970. Aetna seeks to recover workmen’s compensation payments made to Thomas M. Jones for injuries sustained by Jones as a result of that accident. ACF Industries, the insured, seeks to recover property damages. Judgment was rendered by the trial court in favor of defendant, and plaintiffs appealed.

This is a companion to a suit which was instituted by McNallen J. Reed, and others, against American Motorists Insurance Company, ACF Industries and Aetna, arising out of the same accident. The cases were consolidated for trial, and we are rendering a separate judgment in each case. See Reed, et al. v. American Motorists Insurance Company, et al., 355 So.2d 948, (No. 6047 on the docket of this court).

In the companion suit, No. 6047, we held that Jones, the driver of one of the vehicles involved was negligent, and that his negligence was a proximate cause of the accident. For the reasons which we assigned in that case, we conclude that in the instant suit Jones’ employer, ACF Industries, and its insurer, Aetna, are not entitled to recover against the Estate of the driver of the other vehicle.

The judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.