text:
    Lloyd ROMERO et al. v. Clyde STEPHENS et al.
    No. 6467.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Writ Refused July 3, 1978.

      Thomas A. Rayer, New Orleans, Landry, Poteet & Landry, Sidney P. Landry, Lafayette, John Jackson, Jr., Asst. Atty. Gen., New Orleans, Camp, Carmouche, Palmer, Carwile & Barsh, James E. Williams, Lake Charles, for defendants-appellants.
    J. Minos Simon, Lafayette, for plaintiffs-appellees.
    Before WATSON, GUIDRY and CUT-RER, JJ.
   WATSON, Judge.

This is an appeal from the trial court’s decision as to the result of a horse race. The proceedings were instituted by plaintiffs, Lloyd Romero, the trainer, and Glenn Cudd, the owner, of a quarterhorse, “Jet on Sam”, which finished second in a race conducted at Delta Downs, Incorporated, a track located in Calcasieu Parish, Louisiana. Plaintiffs were denied the second place purse because the urine of Jet on Sam was found to contain a prohibited substance. The defendants are Clyde Stephens, C. L. “Bubba” Webb, and Ernest Hessler, the stewards of the Louisiana Racing Commission at Delta Downs; the Louisiana Racing Commission; and Shilstone Testing Laboratories, Inc., the official chemist for the racing commission.

It was stipulated between the parties that, on June 19, 1976, in the ninth race at Delta Downs, a quarterhorse race, the physical order of finish was: first, Miss Fancy Mires; second, Jet on Sam; and third, Hilo Pearl. In track parlance, these were the “win, place and show horses”. It was also stipulated that, following the ninth race, Jet on Sam was taken to the testing barn at Delta Downs; a specimen of his urine was obtained; a portion of the urine sample was sent to Shilstone where it was tested and a test result was issued. It was stipulated that the second place purse was $5,304.

Stephens, one of the stewards, testified that he received two reports from Shilstone, the state chemist. One of these reports (Shilstone 7 — TR. 155) indicated that all 14 samples in the test group were negative except for urine sample number 2761, which was being subjected to further investigation. The next report (TR. 156) indicates that sample number 2761 was “positive for Apomorphine or an analog thereof.” A notation on one of the reports indicates that 2761 was the sample from Jet on Sam.

Romero testified that Stephens notified him by telephone that Jet on Sam’s urine had been found by the racing chemists to contain a forbidden substance and that Romero could have a hearing before one of the stewards, Webb, in Lafayette. Although the trial court did not allow much testimony as to the actions of the stewards, Romero testified that he had a hearing in Lafayette and that the stewards, Webb, Stephens and Hessler, were present. Although the record is not precise as to what occurred at this hearing, it is clear that no appeal was made by Romero to the Louisiana State Racing Commission as provided by LSA-R.S. 4:156 and Rule I of the Rules of Racing, Louisiana State Racing Commission, 1971 (Stephens Exhibit 3).

Plaintiffs then filed suit in the 15th Judicial District. The original petition sought a temporary restraining order, preliminary and permanent injunctions and a mandatory injunction designed to obtain samples of urine of the horses finishing first, second and third in the contested race. Following a series of orders and counter-orders in the Fifteenth Judicial District Court, plaintiffs filed an amending petition which demanded money judgments.

As the result of orders by the trial court, plaintiffs obtained from Shilstone a sample of Jet on Sam’s urine, but samples were not available from the horses finishing first and third.

The defendants filed various pleadings in response to plaintiffs’ demands. The principal pleading of significance to this appeal is the “return to rule to show cause and answer” filed by the attorney general on behalf of all defendants on September 27, 1976. This pleading asserts, among other things, that plaintiffs did not exhaust their administrative remedies. (TR. 64-66).

Additional exceptions were later filed by the Louisiana Racing Commission including: (1) exception of no right of action; (2) exception of no cause of action; (3) exception of non joinder of indispensable parties; and (4) exception to jurisdiction.

At the time set for hearing the merits of the case, the trial court entered its rulings on various motions and exceptions which had been filed. The trial court overruled the exception to jurisdiction, deeming it an exception to venue which had been waived by a general appearance. The exception of no right of action was overruled by the trial court on the ground that it would be “. . fruitless for the plaintiff herein to seek to follow any further administrative procedures as provided for in the Louisiana Revised Statutes . . ” (TR. 225). The exception of no cause of action was overruled; the trial court stated that conversion of a summary proceeding into an ordinary proceeding was permissible because of the amendment to the pleadings by plaintiffs. The exception of non joinder was overruled.

The matter proceeded to trial and evidence was taken on the sole issue of whether the horse Jet on Sam had a prohibited substance in his urine sample following the race.

The interesting transcript, which is lengthy and complex in its scientific detail, contains testimony from two experts on behalf of plaintiffs and several experts on behalf of defendants.

The sample of urine, which was judicially obtained by plaintiffs, was submitted first to Dr. Joseph T. Brierre, Jr., a pathologist of Lafayette, Louisiana, whose test with the “thin layer chromatography” method showed a spot which indicated a presumptive diagnosis of Apomorphine, the substance found by Shilstone. However, subsequent tests by Dr. Brierre did not confirm the presence of Apomorphine and he concluded that it was not present in the urine.

Dr. Brierre sent a portion of the sample to Dr. George Morrell of the Center for Laboratory Medicine, located in New Jersey. Dr. Morrell is a PhD. in toxicology. In his thin layer chromatography test, Dr. Morrell also noted a spot which required the notation of possible detection of Apomor-phine but he conducted several other tests which did not verify this finding and he concluded that the sample was negative for presence of opiates.

The experts testifying for the defendants included three laboratory technicians from Shilstone: David Marshall, Durwood Ne-veu, and Pamela Noll. They testified as to the procedures followed at the laboratory in testing equine urine and particularly that of Jet on Sam. The Shilstone people performed first a thin layer chromatography test which in their interpretation indicated the presence of some foreign substance in the horse’s urine. Next they performed a gas liquid chromatography analysis which verified that the suspicious substance was Apomorphine.

Additionally testifying for defendants was Dr. Robert Schoenfeld, a biochemist and toxicologist who is the past president of the Association of Official Racing Chemists of the United States and who is also the official racing chemist of the State of New Mexico. Dr. Schoenfeld testified as to the validity of the testing methods used by Shilstone.

Dr. Donald P. Dicharry, who is veterinarian for the Louisiana State Racing Commission, testified that Apomorphine in low doses would stimulate a race horse and a large dose would kill. (TR. 456).

On the basis of the testimony summarized above, the trial court concluded that the testimony by plaintiffs’ experts was more persuasive than that of defendants’ experts. The trial court thus decided that the urine of Jet on Sam did not contain Apomorphine and entered judgment for the plaintiffs. The judgment signed was in favor of Lloyd Romero and Glenn Cudd and against the previously named defendants, enjoining and ordering them to deliver to plaintiffs the purse for the second place winner of the race at Delta Downs in the amount of $5,304, together with legal interest from judicial demand until paid. It is from this judgment that defendants appeal, asserting all of the various defenses which had been urged in the trial court but primarily contending that the trial court was manifestly in error in deciding that the evidence did not establish that Jet on Sam’s urine contained Apomorphine. This court will not express its views as to the merits of the controversy or manifest error by the trial court, because the resolutory issue is the failure of plaintiffs to exhaust their administrative remedies.

Horse racing is a sport which is the subject of extensive and detailed legislation. LSA-R.S. 4:141-181 are the statutes establishing the Louisiana Racing Commission and expressing, among other objectives, a legislative intent and policy to “encourage forceful and honest state-wide control of horse racing” (LSA-R.S. 4:141). LSA-R.S. 4:148 empowers the commission to make rules and regulations on a broad spectrum of topics, covering all aspects of horse racing.

The stewards are the supervisors of . the daily conduct of racing.” LSA-R.S. 4:172. They are the agents of the commission and are under its jurisdiction. LSA-R.S. 4:148. The stewards make the day-to-day decisions which are necessary for the conduct of horse racing. However, the Revised Statutes and the Rules of Racing provide specifically that an appeal “may be taken” (LSA-R.S. 4:156) to the commission.

While the Revised Statutes and the Rules of Racing use the permissive word “may” when referring to an appeal to the commission, the tenor and thrust of the statutes is that racing shall be under the control of the Louisiana State Racing Commission. We read the word “may” in the Revised Statutes and the Rules of Racing to mean that a person must appeal or accept the finality of the stewards’ decision. Permissive language must sometimes be given a mandatory interpretation where necessary to carry out the clear policy and intent of the Legislature. Rathborne Lumber & Supply Co. v. Falgout, 218 La. 629, 50 So.2d 295 (1950). Until a formal ruling is obtained from the commission, the plaintiffs have failed to exhaust their administrative remedies and their complaint has no standing in court. Compare Bonomo v. Louisiana Downs, Inc., 337 So.2d 553 (La.App. 2 Cir. 1976). Also see Jefferson Downs, Inc. v. Louisiana State Rac. Com’n, 288 So.2d 653 (La.App. 4 Cir. 1974).

Essentially plaintiffs contend that the stewards were wrong in disqualifying Jet on Sam. This was a decision of the stewards on the basis of the state chemist’s report. The plaintiffs must appeal the stewards’ ruling to the commission before seeking judicial review.

LSA-R.S. 4:154 provides that the administrative procedures of the Louisiana Racing Commission are as set forth in LSA-R.S. 49:951 et seq., the general administrative procedures act for agencies of the State of Louisiana.

The provisions of LSA-R.S. 49:964 G. list in detail the standards for a judicial review of an administrative decision by an agency such as the Louisiana State Racing Commission. These are different from the burden of proof in an ordinary case in trial court; to allow plaintiffs to omit the appeal to the commission would be to allow them to choose a more favorable burden of proof. This statute sets forth detailed standards as to extent of the review and obviously contemplates that before a matter is presented to a court, it will have been heard by the agency and certain findings will have been made.

The conduct of horse racing in the State of Louisiana has been entrusted by the Legislature to the Louisiana Racing Commission rather than the courts, although judicial review is available after a hearing and ruling by the commission.

The trial court erred in failing to sustain the exception of no cause of action filed on behalf of the defendants in this proceeding. The exception of no cause of action is sustained and plaintiffs’ petition is dismissed. Costs at trial and on appeal are taxed against plaintiffs.

REVERSED AND RENDERED.

      . Romero was duly licensed by the Louisiana Racing Commission as an “owner-trainer”. His application is in the record (TR. 148) and is significant as reflecting the care with which the commission licenses persons connected with racing and the control the commission exercises over the sport. Among other features, Romero pledged in the application to abide by the commission’s Rules of Racing.

      .LSA-R.S. 4:156:
      “§ 156. Appeal to the commission and review of commission rulings
      A. A final appeal, in the case of any person penalized, or disciplined by the stewards, may be taken to the commission.
      B. Such an appeal must be filed in writing at the office of the commission within five days of the date of said penalty or imposition of said discipline.
      C. Such an appeal must be signed by the person making it and must set forth his reason therefor.
      D. An appeal from the decision of the stewards to the commission shall not affect such decision until the appeal has been acted upon by the commission.
      E. The commission must grant a hearing within ten days of the receipt of this appeal, and must render a decision within forty-eight hours following the conclusion of the appeal hearing. Any continuance of a hearing must be reasonable in duration and for just cause.”

      . Rule I, Rules of Racing:

        “1. APPEAL TO THE COMMISSION
      (a) Any person penalized or disciplined by the Stewards may apply to the Commission for a suspensive appeal staying the effect of the Stewards’ action pending disposition of such appeal by the Commission
      See Appendix, Revised Statutes 4, Section 156.”

      . The exception of no cause (instead of no right) of action is the pleading which properly raises the question of whether plaintiffs may proceed to seek judicial relief.

      . LSA-R.S. 49:964 G:
      * * * * * *
      “G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      (1) In violation of constitutional or statutory provisions;
      (2) In excess of the statutory authority of the agency;
      (3) Made upon unlawful procedure;
      (4) Affected by other error of law;
      (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
      (6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.”


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Stanley J. SMITH, Plaintiff-Appellee, v. DELTA EXPRESS, INC., Defendant-Appellant.
    No. 6470.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Writ Granted July 3, 1978.
    Harry F. Horak, Fort Worth, Tex., and John G. Williams, Natchitoches, for defendant-appellant.
    Jeff McHugh David, Baton Rouge, Kelly & Ware by Richard N. Ware, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff brings this action to rescind the sale of three motor carrier operating authorities which were conveyed by the plaintiff to the defendant. After a trial on the merits in which the trial court found for plaintiff, defendant filed a motion for a new trial and an exception of lack of jurisdiction over the subject matter. The trial court denied the motion for a new trial, overruled the exception, and entered judgment in favor of plaintiff. Defendant appealed.

The issues presented in this appeal are: (1) Does a state court have subject matter jurisdiction to decide ownership of motor carrier operating certificates and permits issued by the Interstate Commerce Commission? and (2) Interpretation of the agreements executed by the parties.

On January 5, 1970, plaintiff and defendant executed a document entitled “Purchase Agreement”. This agreement was, in reality, the sale of certain vehicular equipment and motor carrier operating rights issued by the Interstate Commerce Commission and the Louisiana Public Service Commission, contingent upon the approval of these two regulatory agencies. The sale involved the following operating rights: ICC Certificate of Public Convenience and Necessity Number MC-133168; ICC Contract Carrier Permit Number MC-117969 (Sub. 3); and Louisiana Public Service Commission Contract Carrier Permit No. 1258- A. The consideration for the transfer of the trucking equipment and the operating rights was $20,000.

The parties on January 5, 1970, further executed an instrument entitled “Personal Services Employment Contract” by which plaintiff was to receive, for personal services rendered, the sum of $4,200 per year for a period of five years.

A third document, entitled “Purchase Agreement Amendment”, was entered into on January 5, 1970. The purchase agreement amendment provided that:

“As part of the foregoing purchase agreement, BUYER shall not sell, transfer, assign, alienate or otherwise dispose of, mortgage, hypothecate, pledge or otherwise encumber said certificates of public convenience and necessity, nor any received by BUYER in lieu thereof, and shall not permit same to become inoperable until all sums of money due or to become due Stanley J. Smith under the ‘Personal Services Employment Contract’ executed this day between the parties hereto have been paid in full.”

Defendant, after obtaining approval from both the Interstate Commerce Commission and the Louisiana Public Service Commission, began using the trucks and trailers to operate over the routes authorized under the certificates and permits. Plaintiff received, in due course, four of his $4,200 annual personal service payments, but the fifth and final payment was never made. As a result of the failure to make the final payment, plaintiff instituted suit requesting a recission of the sale of the operating rights for failure of the defendant to pay the full purchase price. Plaintiff further requested a judgment declaring him to be the lawful owner of the operating authorities free and clear of any encumbrances which may have been placed upon those authorities subsequent to the sale.

The trial court judgment rescinded the January 5, 1970 sale and declared plaintiff to be the true and lawful owner of the three operating authorities free and clear of any mortgages, liens, or encumbrances attached to these operating authorities on or after January 5, 1970.

The first issue before this court concerns whether or not a state court has subject matter jurisdiction to decide who is the true and lawful owner of interstate operating authorities issued by the Interstate Commerce Commission. Appellant urges that the state court is without subject matter jurisdiction in that Federal law has preempted this field and this action is regulated by the Interstate Commerce Commission. Appellant cites the case of Graziani v. Elder & Walters Equipment Company, 209 La. 939, 25 So.2d 904 (1946) as authority for its position.

The Graziani case involved a credit sale, of trucks, trailers, and equipment, together with an Interstate Commerce Commission carrier’s permit or certificate. The sale was made by the plaintiff, Mr. Graziani, to the defendant, Elder & Walters Equipment Company. Upon defendant’s failure to pay the balance due on the purchase price, plaintiff brought suit to recover this balance. A third party, Joseph Tedesco, intervened into the suit claiming that he was the lawful owner of the permit by virtue of an agreement between him and plaintiff. The trial court rendered judgment in favor of the defendant. It further ordered that the intervention of Tedesco be maintained and ordered the return of the permit to him. The Louisiana Supreme Court, discussing Tedesco’s claim to the permit, stated:

“By reason of his written agreement (above described) with plaintiff, intervener (sic) Tedesco, it appears, has a claim to the permit or certificate in question superior to that of plaintiff. But the state courts, we think, are without authority to award it to him. The regulation of motor carriers engaged in interstate or foreign commerce is vested in the Interstate Commerce Commission, and the issuance of carrier permits or certificates is within its discretion. No certificate may be transferred or granted without its consent. 49 U.S.C.A. §§ 306, 312(b); Rulings of the Interstate Commerce Commission, Federal Carrier Service, pages 1585, 3251; United States v. Resler, 313 U.S. 57, 61 S.Ct. 820, 85 L.Ed. 1185. Moreover, appeals from the rulings or decisions of the Commission are to the federal courts, not the state courts. Hence for us to judicially recognize intervenor as the legal owner of the instant certificate would not be binding on the Commission; such a judgment would be without force and effect. It follows logically that the intervention should be dismissed as of non-suit.”

The Supreme Court in Graziani reversed and set aside the judgment of the trial court insofar as it ordered the return of the Interstate Commerce Commission permit to the intervenor, and the intervention was dismissed as of non-suit.

We feel the Graziani decision squarely meets the jurisdiction question before us in this case. Our research reveals that this decision has not been questioned or overruled by our Supreme Court since its rendition. We feel bound to follow the ruling of the Supreme Court in Graziani and hold that the trial court was without authority to award the ownership to plaintiff of the operating authorities regulated by the Interstate Commerce Commission. Plaintiff’s remedy, according to Graziani, lies with the Interstate Commerce Commission.

Appellant does not put at issue, either in brief or oral argument, the portion of the trial court’s judgment adjudicating the ownership of the contract carrier permit issued by the Louisiana Public Service Commission and vehicular equipment described in the agreement of purchase dated January 5, 1970. Therefore, we do not disturb that portion of the judgment.

Due to our disposition of the first issue, we do not reach the second issue raised by appellant.

For the above reasons, we reverse and set aside without prejudice that portion of the trial court judgment decreeing to the plaintiff the ownership of the Interstate Commerce Commission certificate and permit. In all other respects the judgment appealed from is affirmed.

All costs of this appeal are assessed to plaintiff-appellee.

AFFIRMED IN PART: REVERSED IN PART.


author: DOMENGEAUX, Judge.

text:
    ASHY ENTERPRISES, Plaintiff-Appellant, v. Overland D. JAGNEAUX, Defendant-Appellee.
    No. 6471.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.

      Guillory, McGee & Mayeux, A. Frank McGee, Eunice, for plaintiff-appellant.
    Plaisance & Franques, A. J. Plaisance, Lafayette, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This appeal involves the unusual situation of a workmen’s compensation suit being filed by an employer. Specifically, we are concerned with La.R.S. 23:1311 which reads:

“In case of dispute over or failure to agree upon a claim for compensation between employer or employee, or the dependents of the employee, either party may present a verified petition to the district court which would have jurisdiction in a civil case, or to the district court of the parish in which the injury was done or the accident occurred, or to any court at the domicile, or at the principal place of business of the defendant, having jurisdiction of the amount of dispute, at the option of the plaintiff. The petition should set forth the names and residence of the parties and the facts relating to the employment at the time of the injury, the character and extent of the injury, the amount of the wages being received at the time of the accident, the knowledge of the employer or notice of the occurrence of the accident and injury, and such other facts as may be necessary and proper for the information of the court, and to give the other party sufficient information to enable him to intelligently answer and defend the complaint; it should also state the matter or matters in dispute and the contention of the petitioner with reference thereto, including all facts which in this Chapter are made conditions under which compensation may be granted.”

Plaintiff-employer, Ashy Enterprises, Inc., a Louisiana corporation with its principal place of business and domicile in St. Landry Parish, Louisiana, filed a suit in the district court of that parish against defendant, Overland Jagneaux, a former employee, for determination of its liability for workmen’s compensation benefits and requesting a court order causing the defendant to submit to certain medical examinations, all in connection with an alleged work related accident. According to the pleadings, the defendant was domiciled in Lafayette Parish and the alleged accident took place in Lafayette Parish.

Defendant-employee filed an exception to the jurisdiction of the court, and after hearing thereon, the trial court sustained the exception and dismissed the employer’s suit, however, reserving to the employer leave to file a new action in a court of proper jurisdiction and venue.

Plaintiff-employer has appealed.

The trial judge reasoned that, although the exception was styled as an exception to the jurisdiction, in reality, the question of venue was raised, and that St. Landry Parish was not a court of proper venue for the adjudication of the questions raised by the employer. We agree.

La.R.S. 23:1311 relates to venue, or the place where the action is to be brought, and not to the jurisdiction of courts over the subject matter. Hancock v. Liberty Mutual Insurance Company, 155 So.2d 47 (La.App. 1st Cir. 1963).

Plaintiff-employer suggests that because the statute states “either party may present a verified petition to the district court which would have jurisdiction in a civil case, . .St. Landry Parish is a proper parish to file this suit because that parish has original jurisdiction in “a civil suit.”

We conclude otherwise. Under La.R.S. 23:1311, in the present posture of this controversy, the employer can only file this suit in Lafayette Parish, which is the defendant-employee’s domicile and the place where the alleged accident occurred and the injury done.

This being a matter of venue, and not jurisdiction, to adopt the suggestion made by appellant would be in effect to allow venue to be proper in any workmen’s compensation case in any district court in the State of Louisiana which would have jurisdiction “in a civil case.” This would basically destroy the theory behind venue and would render the rest of the statute meaningless.

We therefore conclude that the district court judgment is correct, and that the employer’s suit was properly dismissed.

All costs are assessed against appellant.

AFFIRMED.


author: WATSON, Judge.

text:
    Roy YOUNG et ux. v. Richard J. CLEMENT, M.D., et al.
    No. 6475.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied July 5, 1978.
    Reuven N. Rougeau, Lake Charles, for plaintiffs-appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, Raggio, Parrar, Cappel & Chozen, R. W. Farrar, Jr., Lake Charles, Charles S. King, Lake Charles, for defendant-appellee.
    Tommy Rutledge, DeQuincy, for curator absentee-defendant.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

In this malpractice action, the dispositive issues are: (1) whether plaintiffs’ claims have prescribed; and (2) whether the trial judge erred in failing to grant a new trial.

The prescription issue was resolved on the basis of factual determinations by the trial court against the plaintiffs. There is a reasonable evidentiary basis in the record for the findings of the trial court and, therefore, there is no manifest error.

As to the denial of the motion for new trial, plaintiffs contend that the trial judge erred in failing to grant a new trial on the basis of three affidavits from persons who would give testimony tending to impeach the testimony of Dr. Richard J. Clement, one of the defendants. The trial judge in his reasons for denying the motion noted that not only did he entertain doubt that the evidence could not have been discovered either before or during trial, but also he thought that the “newly discovered” testimony was not relevant or material.

The rule is that a new trial will not be granted for newly discovered evidence which is not material to the issues of the case and only has a tendency to discredit or impeach a witness. Martin v. Authement, 28 So.2d 469 (La.App. 1 Cir. 1947). The trial court did not err in denying the motion for new trial.

For the reasons assigned, the judgment of the trial court is affirmed. Costs on appeal are taxed against plaintiffs.

AFFIRMED.


author: CULPEPPER, Judge. WATSON, Judge,

text:
    Valcour FONTENOT, Plaintiff and Appellant, v. Walter LEE, Parish Custodian, Board of Supervisors, Paul J. Hardy, Secretary of State, and Larry Vidrine, Defendants and Appellees.
    No. 6477.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Guy 0. Mitchell, III, Ville Platte, for plaintiff and appellant.

      Jack C. Fruge of Fruge & Vidrine, Fusilier, Pucheu & Soileau, A. Gaynor Soileau, Ville Platte, for defendants and appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a suit to contest an election. The case was previously before us, 348 So.2d 760 (La.App.3rd Cir. 1977). The district judge had sustained defendants’ exception of no cause of action on the basis that plaintiff’s petition failed to state with sufficient particularity allegations of fraud and irregularities. We reversed, holding that some of the allegations as to fraud and irregularities were sufficient to state a cause of action. We remanded the case for trial.

After remand, the case was tried on the merits on September 23, 1977. The issues tried were: (1) Whether plaintiff proved that voting commissioner Thomas Reed entered a voting machine, without the request of the voter, Mrs. Jimmy B. Fontenot, and changed her vote on the machine from Valcour Fontenot to Larry Vidrine without the voter’s consent, as alleged in paragraph 10(1) of plaintiff’s petition? (2) Whether two voters, Gerald Morein and R. P. Landry, were improperly directed by commissioners to enter the wrong voting machine and thus were deprived of their right to vote for plaintiff, all as alleged in paragraph 10(2) of plaintiff’s petition?

As to the first issue, Mrs. Jimmy B. Fon-tenot testified she could not read or write, but her husband had marked the voting keys with white chalk indicating the candidates for whom she wished to vote. She stated she entered the machine and pulled the keys which had been marked by her husband, one of which keys she understood was for Valcour Fontenot. She then testified that after she had pulled the keys, Mr. Tom Reed, one of the commissioners, entered the voting machine without her request and proceeded to pull up the keys which she had voted and told her to leave.

Mr. Tom Reed, the commissioner in question, contradicted Mrs. Fontenot’s testimony. He stated Mrs. Fontenot requested assistance and that he went into the machine ahead of her and pointed out the keys for the various candidates and that she actually turned the levers, picking the candidates she desired. He denied touching the keys. Reed testified that after Mrs. Fontenot voted, he opened the curtain and recorded the vote by turning the red lever. He stated that he thought Mrs. Fontenot cast her vote for the plaintiff, Valcour Fontenot, but he was not sure. Another commissioner, Mr. Noah Fontenot, corroborated most of Reed’s testimony.

In his written reasons, the trial judge stated that he found the testimony of Mr. Reed, as corroborated by the other commissioner, was more credible than that of Mrs. Fontenot. Thus, the trial judge found plaintiff had failed to prove any fraud or irregularities as to the vote by Mrs. Fonten-ot.

As to the issue regarding Mr. Morein and Mr. Landry being improperly directed by commissioners to the wrong voting machine, Mr. Morein testified that after he had entered the voting machine and closed the curtain he noted that the machine contained no candidates for district “C” aider-man. He stated that he opened a “crack” in the curtain and told the commissioners that he was in the wrong machine, whereupon they advised that he was in the right machine and to go ahead and cast his ballot, which he did.

Mr. Landry stated that after he entered the voting machine he realized there were no levers for alderman in District “C”, but he nevertheless voted and opened the curtain and left the machine and then complained to the commissioners.

Mr. Hillary Vizinat, the commissioner who was alleged to have directed Mr. Mor-ein to the wrong machine, denied that he had directed anyone to any particular machine to vote. Vizinat did state that Mr. Morein complained to him after he had voted and left the machine, but there was nothing Vizinat could do after the vote was recorded.

Mr. George Martin, the commissioner who was alleged to have directed Mr. R. P. Landry to the wrong machine, testified that it was not until after Mr. Landry had voted and left the machine that he complained. Martin denied that he had directed Landry to any machine.

In his written reasons, the district judge held plaintiff had failed to prove that either Mr. Morein or Mr. Landry were fraudulently or improperly directed to the wrong machine by any of the commissioners.

The issues regarding the alleged fraud and irregularities as to the three voters in question are factual. There was conflicting testimony. The trial judge found the testimony of the commissioners to be more credible. Based on the district judge’s reasonable evaluation of credibility, there is clearly sufficient evidence to support his finding of fact.

When this case was previously before us, we found that plaintiff had stated a cause of action as to the fraud and irregularities discussed above, so we did not reach the allegations of plaintiff’s petition in paragraph 10(3), (4) and (5), which are quoted in our previous opinion. Subparagraph (3) alleges that four named voters lived outside District C but nevertheless voted. Subpar-agraph (4) alleges that fraud and irregularities were committed during the absentee voting, but no specific irregularities are alleged. Subparagraph (5) alleges that other irregularities would be proved at trial, but these are not specifically alleged.

After the case was remanded, the district judge refused to allow plaintiff to introduce evidence regarding the allegations in paragraph 10(3), (4) and (5). On this appeal, plaintiff contends this was error, and he re-urges these grounds.

As to subparagraph (3), our statutory law provides the procedure for attacking the improper registration of voters prior to the election and provides for challenge at the polls by a commissioner or any other person who may contend a voter is not properly registered. LSA-R.S. 18:245 and 18:352. Jurisprudence construing these statutes holds that voters who have not properly registered and qualified to vote must be formally challenged either before or at the time they offer to vote. In the absence of a formal challenge according to the statutory procedure, the qualification of a voter cannot be collaterally attacked in an election contest after the election has been completed. Timberlake v. Lindsey, 140 So.2d 406 (La.App.3rd Cir. 1962); Perez v. Cognevich, 156 La. 331, 100 So. 444 (S.Ct.1924).

During oral argument, we requested that counsel for plaintiff and defendant submit supplemental briefs on the issue of whether this case is now moot on the basis that Vidrine has now received his commission and taken the oath of office as city councilman. In plaintiff’s supplemental brief, he correctly points out that the record before us does not show whether Larry Vidrine has received his commission or taken the oath of office. Therefore, we cannot decide on the basis of this record, whether the case is moot. Since we affirm the judgment appealed on the merits, the result is the same regardless of whether the case is moot.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

WATSON, J., concurs in the result and assigns brief written reasons.

WATSON, Judge,

concurring:

Although the record does not reflect whether Larry Vidrine has received his commission and has taken the oath of office, I understood during oral argument that there is no dispute concerning the fact that a commission has been issued and that he has taken an oath. Accordingly, this case is moot and should be dismissed.

Therefore, I concur in the result.


author: FORET, Judge.

text:
    James B. LOFTON, Plaintiff-Appellee, v. S. H. CADE et al., Defendants-Appellants.
    No. 6479.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Writ Refused July 3, 1978.
    Emile E. Turner, Jr., New Orleans, for defendants-appellants.
    Gahagan & Gahagan, H. C. Gahagan, Jr., Natchitoches, for plaintiff-appellee.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, Brittain & Williams by Jack 0. Brittain, Natchitoches, Charles E. Welsh, Bossier City, Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for defendant-ap-pellee.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   FORET, Judge.

This litigation arises out of an automobile accident on a two-lane blacktopped highway. The automobile involved was owned and operated by Alvin Strebeck. James Lofton was a passenger in the Strebeck car. The tractor-trailer was owned by Hertz and leased to Harmon Wood Company, Inc. The truck was driven by Michael Mitchell, an employee of Harmon Wood. As a result of the collision, Alvin Strebeck was killed, James Lofton was injured, and Michael Mitchell suffered no serious injury. The Strebeck vehicle pulled onto the highway from a dirt access road approximately 75 feet in length. The truck was proceeding in the opposite direction. The collision occurred less than 200 feet from where the dirt access road intersects the highway. The most serious factual dispute is whether the Strebeck vehicle was in the proper lane of travel.

James Lofton instituted this suit against Mitchell and Harmon Wood, Inc. (all other defendants were dismissed), seeking damages for personal injuries sustained in the collision. The widow of Alvin Strebeck, individually and on behalf of her two minor children (Christy Lee and Carrie Sue), intervened in their suit against both defendants. Confederate Memorial Medical Center also intervened against the defendants seeking payment of medical services rendered to James Lofton. A jury verdict was rendered for all parties as follows:

(1) James B. Lofton _$ 75,000.00
(2) Mrs. Strebeck, Individually- 25,000.00
(3) Mrs. Strebeck, on behalf of her two minor children -$100,000.00

The defendants have perfected this suspen-sive appeal. James Lofton has answered the appeal seeking an increase in damages awarded from $75,000 to $100,000 and a separate judgment for intervenor, Confederate Memorial Medical Center, for $2,516.65. Mrs. Strebeck has answered the appeal seeking an increase in damages awarded to her individually from $25,000 to $100,000.

The issues presented on this appeal are:

(1) Was Michael Mitchell guilty of any negligence which was the proximate cause of the accident;
(2) Was Alvin Strebeck contributorily negligent and did James Lofton assume the risk for riding with a driver he knew or should have known was allegedly intoxicated;
(3) Were the instructions given to the jury proper;
(4) Is it permissible to allow a juror to take notes of counsel’s arguments into the jury room for deliberation;
(5) Were the damages awarded proper;
(6) Should there be a separate judgment against Mitchell and Harmon Wood Company, Inc. for intervenor Confederate Memorial Medical Center.

We are of the opinion that the principal issue involved is a factual one, and of course we are not permitted to substitute our judgment in the absence of manifest error where there is a reasonable evidentia-ry basis for the findings of the trial court. Save and except as otherwise held hereinafter, we find no reversible error in the trial court’s findings on the law and the facts.

With respect to the claim of Confederate Memorial Medical Center for $2,516.65, we are of the opinion that the $75,000 awarded to James B. Lofton included the claim of Confederate Memorial. No additional award is warranted.

ANSWER TO APPEAL BY INTERVE-NOR, GAIL STREBECK

The appellee-intervenor, Gail Strebeck, filed an answer to the above appeal requesting an increase in the award made to her of $25,000 to $100,000. The appellee-in-tervenor alleges that the jury abused its discretion in awarding only $25,000 to Mrs. Strebeck.

The low verdict to Mrs. Strebeck, individually, was no doubt in some way connected with the fact that Mrs. Strbeck admitted on direct examination that she and her deceased husband had had the customary marital quarrels. Furthermore, she testified that she intended to remarry, and in fact the man she planned to marry was living with her and her children at the time of trial. However, the decedent’s father testified that his son had a good relationship with the plaintiff and her children. He also testified that his son and his family would visit the father and mother almost every weekend. There was additional testimony that the deceased was a good father and husband, and that the family life between the decedent and Mrs. Strebeck was generally good. No testimony to the contrary was introduced by the defendant.

The Louisiana jurisprudence is well settled that the remarriage or engagement to remarry of a surviving spouse can have no effect upon that spouse’s right of recovery, and is not to be considered in mitigation or reduction of the damages otherwise due. In McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961), the Supreme Court stated that ratio decidendi of this doctrine is that the loss suffered by the surviving spouse is determinable by conditions which exist at the date of the wrongful death, as this is the time when a right and a cause of action for the damages arises; and that the tort feasor will not be permitted to show, and rely on, and hence to benefit from, a remarriage, or an intended remarriage in seeking a reduction of the damages for which he is responsible.

In Jones v. Kansas City Southern Railway Co., 137 La. 178, 68 So. 401 (1915) the Louisiana Supreme Court held that evidence of the engagement of the widow is irrelevant and immaterial. The Court stated:

“Our reconsideration of the matter has led to the conclusion that evidence as to the engagement of the plaintiff to be again married was irrelevant, for non constat that the engagement would result in marriage (and plaintiff’s counsel, in their reply brief, say that it has not yet done so); and, if it should so result, non constat that the condition of the plaintiff will thereby be bettered.”

We are of the opinion that the jury committed manifest error in its award of only $25,000, for all damages, to Mrs. Strebeck. Having so concluded, we must now examine what would be the lowest possible award which the jury could have made under the rule of Coco v. Winston Industries, Inc., 341 So.2d 332 and its progeny.

Certainly the jury had no choice but to award to Mrs. Strebeck the amount of $1,214.42 for funeral expenses, and $750 as the market value of the automobile which was destroyed in the accident. The other remaining items of damages then are for loss of support, and for loss of love, affection, companionship, etc.

With reference to loss of support, counsel for Mrs. Strebeck has referred us to the case of Hebert v. Patterson Truck Line, Inc., 247 So.2d 886 (La.App. 3 Cir. 1971). In Hebert, the deceased was 22 years of age at the time of the death (compared to the decedent in this case being 28 years old), and his income tax return for the year prior to death indicated he had gross earnings of $3,795.97. In the case at bar, decedent-Strebeck’s employer testified that the decedent had earned $6,210 for the period January, 1975, through October, 1975.

The settled jurisprudence of this State is that damages for loss of support are speculative in nature and cannot be calculated with mathematical certainty. The most the court can do in such cases is to exercise sound judicial discretion and award an amount which, considering all the circumstances, seems just to both parties and is not unduly oppressive to either. See Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968) and McFarland v. Illinois Central Railroad Company, supra. In Hebert, an opinion authored by one of the members of this panel awarded $80,000 for loss of support based on gross earnings of $3,795.97. In our opinion, in the case at bar, the lowest amount which the jury could have awarded to Mrs. Strebeck for loss of support would be $40,000, and we accordingly make that award to her.

With reference to loss of love, affection, and companionship, it would be of no useful purpose and furnish no standard to delve into the voluminous jurisprudence on this issue. In Hebert, in 1971, this Court awarded the amount of $15,000 for loss of love, affection, and companionship. We would mention, however, a recent case emanating from this Court, Fowler v. Western Union Telegraph Co., et al. (Our docket number 6427) 357 So.2d 1305 (La.App. 3 Cir. 1978), wherein this Court affirmed an award of $90,000 for loss of love, affection, and companionship to a 73-year-old man for the death of his 69-year-old wife. In our opinion, the lowest amount which the jury should have awarded to Mrs. Strebeck for loss of love, affection, and companionship should be $15,000.

For the foregoing reasons, the judgment of the trial court is affirmed in all respects except that the award to Mrs. Gail Stre-beck, individually, is increased to $56,964.42, with legal interest thereon from date of judicial demand.

All costs of this appeal are assessed against the defendant.

AMENDED AND AFFIRMED.


text:
    STATE of Louisiana in the Interest of Kenneth BATISTE and David James Cormier.
    No. 6493.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied July 5, 1978.
    Robert L. Cole, Lafayette, for defendants-appellants.
    Frances M. Gilfoil, Lafayette, for plaintiff-appellee.
    Before WATSON, GUIDRY and CUT-RER, JJ.
   CUTRER, Judge.

This is an appeal from a juvenile proceeding in which Kenneth Batiste and David Cormier were adjudicated delinquents under LSA-R.S. 13:1570 A(5).

The petition alleged that Kenneth Batiste and David James Cormier

1. “are delinquent as defined by the Laws of the State of Louisiana, in that they did on August 28, 1977 attempt to commit theft of a bicycle belonging to Richard Johanssen in violation of the provisions of RS 14:27(67).”
The petition further alleged that
2. “Kenneth Batiste did on July 25, 1977 commit theft of a Schwinn 27" bicycle valued at $78.00 belonging to Coley Ferman in violation of the provisions of RS 14:67.”

Additionally, Batiste was charged with violation of his parole.

The court found Kenneth Batiste and David Cormier guilty of attempted theft. Kenneth Batiste was also found guilty of unauthorized use of movables under the theft charge.

They were both declared delinquent and Batiste was recommitted to the Department of Corrections, Louisiana Training Institute, “to serve the maximum time authorized by law.” Cormier was also committed to the Department of Corrections, Louisiana Training Institute, which commitment was suspended and Cormier was placed on supervised probation.

Appellant urges several assignments of error, but we have determined that it will be necessary to discuss only two of these.

Appellant contends that the petition is fatally defective in that it charged attempted theft under LSA-R.S. 14:27(67) but failed to allege any value. Appellant contends that value is an essential element of the crime of attempted theft and value must be proven beyond a reasonable doubt.

LSA-R.S. 14:67 defines the crime of theft as follows:

“Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.” (Emphasis added)

The penalty for theft depends on the value of the object stolen. If the value is less than $100.00, the violation is classified as a misdemeanor; if $100.00 or more in value, it is a felony. The penalty for attempted theft states that if the offense attempted is a misdemeanor theft, the maximum commitment time is six months. If such attempted offense is a felony theft, the maximum commitment time is one year.

LSA-R.S. 13:1580 A(2)(a) provides as follows:

“A child over the age of thirteen who has been adjudged a proper person for commitment, based on the finding of delinquency, may be confined for an indefinite period, but in no case beyond his twenty-first birthday. However, no such child shall be confined for a period which exceeds the length of time for which an adult could be confined if convicted of the offense which formed the basis for the adjudication of delinquency. . .” (Emphasis added)

The above provision reflects that a child over thirteen who is adjudged a delinquent shall not be institutionalized for a period which exceeds that of an adult who may be convicted of the same offense. Since the value of property controls the grade of the offense and the maximum sentence of an adult found guilty of attempted theft, likewise, under this provision, value determines the maximum confinement time of a juvenile. Value is an essential element of attempted theft and must be alleged, proven beyond a reasonable doubt, and a finding made of same. There is no allegation of value in the attempted theft charge against these two juveniles, nor any proof thereof. Every element of the crime charged must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Glassberg, 230 La. 396, 88 So.2d 707 (1956); In re Hampton, 257 So.2d 459 (La.App. 1st Cir. 1972).

It is further contended that the trial court erred when it found Batiste guilty of unauthorized use of a movable in response to the charge of theft. A verdict of unauthorized use of movables is responsive to the charge of theft under the provisions of Louisiana Code of Criminal Procedure Article 814. We find, however, that LSA-R.S. 13:1579.1 provides that juvenile hearings shall be conducted in accordance with the general rules of procedure in civil proceedings. The provisions of the Code of Criminal Procedure are not applicable. See also State in the interest of Braswell, 294 So.2d 896 (La.App. 2nd Cir. 1974), writ denied 296 So.2d 836 (1974); In re State in interest of Tyler, 262 So.2d 815 (La.App. 4th Cir. 1972); In re Tillotson, 225 La. 573, 73 So.2d 466 (1954). Since the provisions of the Code of Criminal Procedure are inapplicable, a verdict of guilty of unauthorized use of movables is not responsive to a theft charge in juvenile proceedings. Such a verdict could not be a valid basis for an adjudication of delinquency.

The State argues that such finding is authorized by Code of Civil Procedure Article 862 which provides that:

“A final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contained no prayer for general and equitable relief.”

This argument is without merit. In the case of State of Louisiana in the interest of Simon, 295 So.2d 473 (La.App. 3rd Cir. 1974), this court made the following observation:

“Notice of the specific charges against an accused, whether adult or juvenile, is fundamental to the law of the State of Louisiana and that of the United States. The Louisiana Constitution of 1921 requires an accused to be informed of the nature and cause of the accusation against him. Article 1, Section 10. Louisiana statutory law requires that a juvenile and his parents be informed of a specific charge against the youth. LSA-R.S. 13:1574, 13:1575. This is in accord with the notions of due process of law as provided by the Fourteenth Amendment of the Constitution of the United States. The United States Supreme Court, speaking of due process, has said:
‘It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.’ Application of Gault, supra, 387 U.S. 1, 87 S.Ct. 1428 at 1447, 18 L.Ed.2d 527.

“This rule has been recognized in Louisiana. Judge Ellis writing for the First Circuit in In re State in Interest of Hampton, 257 So.2d 459 (La.App. 1 Cir. 1972), summarized the requirement as follows:

‘. . .a juvenile may not be adjudged delinquent unless his guilt of the specific charges against him is shown in accordance with the foregoing principles. That is, a judge may not make a finding of delinquency based on misconduct other than that which is set forth in the petition. This would violate the constitutional right of the juvenile to be notified of the charges against him.’ 257 So.2d 459 at 460.”

We conclude that the finding of delinquency of the two juveniles was based upon a defective petition and proceedings; therefore disposition by the trial court is null.

For the foregoing reasons, the adjudications of delinquency and orders of commitment are reversed, the appellants discharged, and the petition of the State in the interest of appellants dismissed.

ANNULLED, APPELLANTS DISCHARGED, PETITION DISMISSED.

      . Attempted theft in LSA-R.S. 14:27(67) contains the following penalty provision:
      “D. Whoever attempts to commit any crime shall be punished as follows:
      * * * * * *
      “(2) If the offense so attempted is theft . . and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft . . ., and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;”.


author: GUIDRY, Judge.

text:
    Gary W. WILLIS, Plaintiff-Appellee, v. Kenneth G. EVERETT et al., Defendants-Appellants.
    No. 6498.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearings Denied July 5, 1978.

      Raggio, Farrar, Cappel & Chozen, Thomas L. Raggio, Lake Charles, for defendants-appellants.
    Russell T. Tritico, Lake Charles, David W. Burton, III, and William C. Pegues, DeRidder, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiff, Gary W. Willis, sustained severe personal injuries while operating a motorcycle when he was involved in an inter-sectional collision with an automobile being driven by Curtis Everett, the minor child of Kenneth G. Everett. He brought the instant suit against Kenneth G. Everett, his liability insurer, Government Employee’s Insurance Company (GEICO) and the Beauregard Parish Police Jury (Police Jury) alleging negligence on the latter’s part in failing to maintain a stop sign at the intersection where the accident occurred and in failing to remove visual obstructions at said intersection. Defendants filed answers denying liability and alleging contributory negligence on the part of plaintiff. Defendants further sought indemnity and/or contribution from each other by way of third party demands.

Trial on the merits was had on September 8 and 9, 1975 before the late Judge Stuart S. Kay, Sr., who died before rendering a decision. The Honorable Ted R. Broyles, on the basis of a transcript of the record, rendered judgment in favor of plaintiff and against defendants Everett and GEICO, finding that the sole proximate cause of the accident was the failure of Curtis Everett to maintain a proper lookout and proper control of his vehicle. He found the Police Jury guilty of negligence in failing to maintain the stop sign at the intersection, but concluded that such negligence was not a proximate cause of the accident considering young Everett’s inattentiveness to his driving. Accordingly, the demands against the Police Jury were dismissed.

Following denial of all motions for a new trial, Everett and GEICO took this appeal. Plaintiff answered the appeal seeking an increase in the quantum awarded and reversal of that portion of the trial court’s judgment which rejected his demands against the Police Jury.

The issues presented on appeal are:

(1) Was Curtis Everett guilty of negligence which was a proximate cause of the accident?

(2) Was plaintiff guilty of negligence which was a proximate cause of the accident?

(3) Was the Police Jury guilty of negligence which was a proximate cause of the accident?

(4) Were the damages awarded to plaintiff inadequate?

The record discloses no genuine dispute as to the following facts:

The accident occurred at approximately 11:15 P.M., May 18,1974 at the intersection of Glendale Road (also know as High School Drive Extension) and Planer Mill Road in a rural portion of Beauregard Parish. Both of these roads are under the jurisdiction of the Police Jury. A parish ordinance fixes a speed limit of 45 mph on all parish roads. Weather conditions were described as clear. Planer Mill Road has a dirt and gravel surface and runs generally north and south. Glendale Road runs generally east and west and is hard-surfaced, having been blacktopped a few months prior to the time of this accident. Prior to this blacktopping, the surface of Glendale Road was similar to that of Planer Mill Road. There is an embankment located on the southwest corner of the intersection which is elevated slightly higher than the roadway. Underbrush and weeds located on this corner constituted a visual obstruction to motorists proceeding east on Glendale Road and also to motorists heading north on Planer Mill Road. Although there was no ordinance establishing either of these streets as having the “right-of-way” over the other, for several years prior to the accident, stop signs had been placed at the intersection by the Police Jury requiring traffic proceeding on Planer Mill Road to stop at the Glendale intersection. At the time of the accident, the stop sign which was usually located at the southeast corner of the intersection (facing traffic proceeding north on Planer Mill Road) was down.

Immediately prior to the accident, plaintiff was proceeding in an easterly direction on Glendale Road on his brother’s Honda 350 motorcycle. Curtis Everett, then seventeen years of age, was operating his father’s 1969 Pontiac in a northerly direction on Planer Mill Road. He intended to execute a right turn onto Glendale Road upon reaching the intersection. The record reflects that the two vehicles entered the intersection almost simultaneously. As near as could be determined,, the impact occurred in the center of the intersection.

Judge Broyles, in written reasons, concluded that motorists on Glendale Road had the right-of-way over motorists traveling on Planer Mill Road even in the absence of an ordinance on the part of the Police Jury establishing such right-of-way.

Appellants assign error to this finding. It is appellant’s contention that in the absence of an appropriate ordinance and in the absence of a stop sign being actually in place at the intersection at the time of the accident, this intersection must be considered as uncontrolled with the right-of-way being in favor of Curtis Everett who was approaching the intersection from plaintiff’s right. LSA-R.S. 32:121; Carney v. State Farm Mutual Automobile Insurance Company, 335 So.2d 759 (La.App. 3rd Cir. 1976); Neal v. Davenport, 270 So.2d 617 (La.App. 2nd Cir. 1972); Byers v. Creel, 198 So.2d 739 (La.App. 4th Cir. 1967). In further support of their contention, appellants refer this Court to several cases as authority for the proposition that differences in road composition and disproportionate flow of traffic or usage will not confer a right-of-way.

We conclude that the district judge was correct in his determination that Glendale was the favored street and that plaintiff had the right-of-way as he approached this intersection. While we have given due consideration to the jurisprudence cited by appellants, we are of the opinion that in the instant case one cannot ignore the fact that plaintiff was proceeding on a hard-surfaced, blacktopped highway as opposed to the dirt and gravel surface of Planer Mill Road. See Doucas v. Universal Underwriters Insurance Co., 334 So.2d 767 (La.App. 3rd Cir. 1976). The fact that the improvements which converted Glendale Road into a hard-surfaced highway were completed only a short time prior to the accident do not alter the fact that Glendale was the superior road on the date of the accident.

We attach even more significance to the fact that stop signs requiring motorists proceeding on Planer Mill Road to stop before entering Glendale Road had been erected at this intersection at the direction of the Police Jury for several years prior to the accident, although there was no ordinance establishing Glendale Road as having the right-of-way over Planer Mill Road. In fact, the stop sign facing southbound traffic on Planer Mill Road was in place on the northwest corner of the intersection at the time of the accident. Ms. Herrington, Parish Treasurer and Secretary to the Police Jury, testified that it was a customary practice to set up stop signs without passing an ordinance and that there are other streets that have signs protecting them without any ordinances having been formally passed by the Police Jury.

We hold that where stop signs or other traffic control devices are erected at the direction of an appropriate governmental authority and are thereafter maintained by such authority for a substantial period of time, a post-accident determination that there was no corresponding ordinance in effect will not strip the affected highway of its favored status. Motorists should not be allowed to collaterally attack the legal authority by which such traffic control devices are erected. See Dufore v. Daugereaux, 122 So.2d 666 (La.App. 1st Cir. 1960).

Concerning the effect of the absence of the stop sign facing northbound traffic on Planer Mill Road at the time of the accident, recently in Jenkins v. City of Alexandria, 324 So.2d 924 (La.App. 3rd Cir. 1975, writ refused) we set forth the applicable law as follows:

“The law is settled that where a street has been properly designated as a right-of-way street, and appropriate signs showing it to be such have been erected, the preferred status of that street will not be lost merely because a stop sign is misplaced, improperly removed, destroyed or obliterated. Fontenot v. Hudak, 153 So.2d 120 (La.App. 3 Cir. 1963); Kinchen v. Hansbrough, 231 So.2d 700 (La.App. 1 Cir. 1970); Ory v. The Travelers Insurance Company, 235 So.2d 212 (La.App. 4 Cir. 1970). Dillman v. Allstate Insurance Company, 265 So.2d 322 (La.App. 4 Cir. 1972).”

For the above reasons we conclude that Glendale Road was the “favored street” with motorists proceeding thereon having the right-of-way over traffic on Planer Mill Road at the intersection.

Curtis Everett testified that on the night of the accident he was taking his date home after having previously left a high school prom. He was vaguely familiar with the intersection, but had never been in an automobile traveling north on Planer Mill Road towards the Glendale intersection prior to the accident. They were on Planer Mill Road that night because his date had told him that it would be the shortest route to her home. As they were proceeding north on Planer Mill Road, Everett was looking for the Glendale intersection as he intended to execute a right turn onto Glendale Road upon reaching it. However, he was not looking for any stop sign as he was unaware that any such traffic control device had ever been placed at the intersection. His testimony was to the effect that he was proceeding in a careful manner and paying proper attention to his driving but that he found himself in the intersection before he realized he was there and only saw the motorcycle headlight a split second before the impact. He estimated his speed prior to the accident at 20 to 25 m. p. h. Everett’s testimony in this regard was generally corroborated by that of his date.

The district judge’s finding of negligence on the part of Everett was based primarily on an admission allegedly made by him to the investigating officer at the scene of the accident that he was momentarily distracted by his passenger and didn’t realize that he was in the intersection. At trial, Everett denied making any such statement.

We find no error in the district court’s finding that Curtis Everett was guilty of negligence. The record indicates that he entered a hazardous intersection without slackening his speed or making any observations concerning approaching traffic. Although Everett cannot be charged with knowledge of the fact that stop signs had previously been erected facing his direction of travel on Planer Mill Road or that one of the signs was down, it is clear that he knew the intersection was in front of him and in fact, was searching for it. The only plausible explanation for his failure to see the intersection ahead of him, especially considering his slow rate of speed, is that he was inattentive.

Under these circumstances, Everett cannot rely on a statutory right-of-way to justify his entry into the Glendale intersection. In Gutelius v. Phoenix Insurance Company, 266 So.2d 717 (La.App. 4th Cir. 1972, writ refused), the court stated:

“The so-called directional right-of-way rule does not convert the street into a superior one, having the right-of-way; nor is it a mechanical rule which determines liability after an accident by the mere direction of the vehicles. Its basic function is to rule which of two drivers arriving simultaneously at an uncontrolled intersection of equal streets should let the other pass. Before this rule can be relied on, the driver must first determine that the other driver is coming from his left and is approaching or entering the intersection at about the same time. These determinations one cannot reasonably expect to make while maintaining speed, especially on approaching a blind intersection.”

See also Ory v. Travelers Insurance Company, 235 So.2d 212 (La.App. 4th Cir. 1970). For the above reasons, we find no error in the district judge’s determination that Curtis Everett was guilty of negligence which was a proximate cause of the accident.

Plaintiff had previously driven on Glendale Road both during the day and at night. Although he was aware of its intersection with Planer Mill Road, he did not know that stop signs had been placed at said intersection facing motorists on Planer Mill Road. Plaintiff testified that on the night of the accident, he was headed home having just completed the 3:00 P.M. to 11:00 P.M. shift at the Boise Southern plant. The intersection in question is located approximately one and one-half miles east of Boise Southern. Plaintiff’s home is located about three miles further east of the intersection. Although he was aware that the Planer Mill Road intersection was ahead of him, he wasn’t paying any extra attention to it. He was not consciously aware that there was a blind corner at the intersection.

Plaintiff testified that he thought he had the right of way and did not slow down or activate his brakes as he approached the intersection. He didn’t realize that the Everett vehicle was also approaching the intersection until a fraction of a second before the impact when he saw lights flash. He estimated his speed prior to the accident at from 35 to 50 m. p. h.

Both appellants and the Police Jury contend that as plaintiff was unaware of the prior existence of the stop signs at the Planer Mill Road intersection, he is unable to presume that traffic on the intersecting street will observe said stop signs and yield the right-of-way. Centanni v. Fleming, 203 So.2d 904 (La.App. 4th Cir. 1967).

It is our conclusion, however, that although plaintiff by his own testimony, was not relying on the protection of any traffic control devices facing traffic on Planer Mill Road, he could presume that traffic approaching from intersecting inferior streets would yield the right of way to him. In American Road Insurance Company v. Glynn, 184 So.2d 556 (La.App. 3rd Cir. 1966), plaintiff’s insured, Thomas, was proceeding eastward on a right-of-way street when he observed another vehicle approaching from the south on an inferior road which dead-ended at the intersection. This court allowed recovery in the cited case, stating:

“Plaintiff’s insured, Thomas, proceeding on a favored street, had a right to assume that his right-of-way would be respected by Mrs. Glynn, who was approaching on the inferior side road; and, that her sudden imprudent entry into his path created a sudden emergency of her sole causing, so that any subsequent error of judgment on his part does not bar his recovery. See Welch v. Welch, (La.App., 4 Cir., 1964), 169 So.2d 713. In the Welch case, supra, the court stated:
‘Our settled jurisprudence is to the effect that a motorist who is driving at a reasonable speed on a right-of-way street had a right to assume that a driver approaching from a less favored street will stop for the intersection and yield the right-of-way; the motorist on the right-of-way street has the right to indulge in this assumption until he sees, or should see, that the other car has not observed or is not going to observe the law. * *

See also Doucas v. Universal Underwriters Insurance Co., supra.

Although the intersection in the instant case is not a “T” intersection, we believe the rule of law expressed above nevertheless to be applicable, considering the favored status of the road on which plaintiff was traveling. A motorist, proceeding on a main highway should not be required to slow his vehicle and peer down each and every side road which he encounters. Plaintiff was justified in presuming that he had the right-of-way. Accordingly, we find no error in the district court’s conclusion that plaintiff was free from negligence.

We concur with Judge Broyles’ determination that the Police Jury was guilty of negligence in failing to maintain the stop signs previously erected by it at the intersection. The record reflects that the Police Jury had no reliable inspection system for ascertaining whether traffic control devices within its jurisdiction were in need of repair or replacement. The Police Jury relied mainly on its road grader operators and local residents to report or replace downed signs. The evidence indicates that this particular intersection had a prior history of missing or downed signs. The Police Jury Road Foreman, Mr. Davis, was aware of the brush and weeds which were located at the intersection. The Police Jury maintains that it had no actual knowledge of the sign being down, however, the evidence supports the district judge’s finding that the sign in question had been down for as long as two weeks. Considering the hazardous nature of the intersection, together with its prior history of downed or missing signs we conclude that the Police Jury had constructive notice of the sign being down. See Jones v. Louisiana Dept. of Highways, 338 So.2d 338 (La.App. 3rd Cir. 1976).

However, we cannot agree with the district court’s ultimate conclusion that the negligence of the Police Jury in not maintaining the sign was not a proximate cause of this accident. While it is true that neither of the drivers in the instant case were looking for or relying on the existence of stop signs at the intersection, it must be presumed that had the sign been in place to warn Everett of the intersection, that he would have obeyed it. Vallot v. Touchet, 337 So.2d 687 (La.App. 3rd Cir. 1976); Funderburk v. Temple, 268 So.2d 689 (La.App. 1st Cir. 1972, writ refused). The slow speed of the Everett vehicle coupled with the fact that he was looking for this very intersection further bolsters our conclusion that a stop sign would have sufficiently caught his attention so as to alert him to the intersection. Although Everett may have been momentarily inattentive, his headlights would have illuminated the stop sign from some distance down Planer Mill Road.

The Police Jury, by undertaking to place traffic control devices at an intersection owes a duty to the traveling public to maintain these devices in proper order. In Funderburk v. Temple, supra, the court stated:

“The law imposes a high degree of care on the part of governmental agencies charged with the responsibility of maintaining traffic signs, signals and other vehicular control devices. McDaniel v. Welsh, La.App., 234 So.2d 833. Failure of a governmental agency to repair a damaged, nonfunctioning or malfunctioning traffic signal, sign or control device, after reasonable notice, either actual or constructive, constitutes negligence rendering the responsible government agency liable for all reasonably foreseeable accidents occurring as a result thereof. McDaniel v. Welsh, above.”

It is our conclusion that the Police Jury’s failure to maintain the stop sign at the intersection in question was a proximate cause of the accident rendering the Police Jury liable with Everett and GEICO for the injuries sustained by plaintiff.

The only remaining issue concerns the sufficiency of the quantum award. The accident resulted in massive injuries to plaintiff’s right leg. Dr. Edmond C. Campbell, an orthopedic surgeon, first saw plaintiff in the emergency room at St. Patrick’s Hospital in Lake Charles, Louisiana on the morning of May 19, 1974. His initial diagnosis of plaintiff’s injuries was a compound comminuted fracture of the upper third of the right tibia, a compound fracture of the upper one-fourth of the right fibula, massive damage to the muscles in the anterior (front) compartment of the leg and damage to skin over this part of the leg. The most severe area of injury was to the soft tissues over the tibia, the muscles being damaged to the extent that after debriding of damaged tissue, plaintiff had practically no muscle left in the anterior compartment of his leg.

Plaintiff was initially hospitalized for a period of 24 days. He was given considerable narcotic drugs during this time for his painful injuries. At first, his leg was splinted from the groin down to and including his foot. His first cast was later applied on June 5, 1974. Plaintiff was subsequently hospitalized for cast changes and debridement. Plaintiff remained in a cast which extended up to the groin area until January of 1975 when he was fitted with a brace (covering from the thigh down to just above the ankle). At the time of trial, plaintiff had been hospitalized for a total of 46 days on various occasions. He was plagued with drainage from the wound which was caused by a low grade infection at the fracture site. Most of his initial drainage was over the front of the tibia.

At the time that Dr. Campbell’s deposition was taken, a surgical procedure to place a full thickness skin graft over plaintiff’s tibia was contemplated. This involves transferring a flap of skin from his good leg and will require the two legs to be actually joined together with a cast during this period.

If the skin grafting procedure is successful, then a bone grafting procedure may be performed. This will entail removing the scar tissue from between the fracture fragments and probably placing a plate in this area. Bone grafts taken from his pelvis will be placed around the fracture site in an attempt to promote healing.

Concerning the prognosis for the future, Dr. Campbell stated:

“Q. Even assuming that the best that you can hope for in this case does take place, what do you feel that his disability will consist of?
A. If he gets solid bony healing of the fracture of his tibia, he will have some damage to his knee joint from the prolonged immobilization which will lead to some arthritis of the knee. A more serious disability is his inability to lift his foot and his toes, due to loss of muscle in the anterior compartment of his leg. This in itself might require some surgical procedure or at best would require him to wear a brace to support his ankle.
Q. Well, all of these things are based first of all on the bone situation reaching a better stage than it is now, and the skin healing up and assuming, again, that all of these procedures would work fine, do you think in your best medical opinion this boy will ever have the full use of his right leg?
A. No, sir. At best, I would feel that he would have at least a 60 percent disability to his right lower extremity-
Q. At least 60 at best?
A. Yes.
Q. And if things—
A. That may require another year of treatment.
Q. And if things don’t go as well as hoped for, to what extent could that disability amount to of the right leg?
A. Well, if we don’t get his tibial fracture healed, I think the alternative would be an amputation which could probably be below the knee but could possibly even be above the knee.”

Judge Broyles awarded plaintiff the sum of $25,000.00 “for the injuries sustained and disabilities resulting therefrom” and an additional $15,000.00 for past and future medical expenses. The liability of GEICO was restricted to the policy limits of $25,-000.00. In determining the amount of the award, Judge Broyles gave consideration to the limits of the GEICO policy along with evidence concerning defendant Everett’s inability to pay an excess judgment. In this latter regard, he stated in written reasons:

“I am also aware of the probable inability of defendant Everett to respond to a judgment substantially in excess of $15,-000.00, at least according to the proof submitted . . . Were it not for these considerations, a higher award covering loss of earnings and other items of damages would be allowed.”

We are of the opinion that an award of $40,000.00 to this plaintiff is woefully inadequate. Plaintiff was 22 years old at the time of this accident. The evidence supports the district judge’s statement that “The accident converted a steadily employed man into a mere invalid which understandably had acutely adverse effect on his marriage and his life.” As of the date of trial, plaintiff has been unemployed since the accident.

In light of our conclusion that the Police Jury was guilty of negligence which was a proximate cause of the accident, and thus solidarily liable with defendants Everett and GEICO, we will adjust the quantum award upward in order to better compensate plaintiff for his injuries. It is our conclusion that an award of $80,000.00 for both special and general damages will do substantial justice to the plaintiff.

For the above and foregoing reasons, the judgment of the district court dismissing plaintiff’s demands against the defendant Police Jury is reversed and it is now ordered, adjudged and decreed that there be a judgment in favor of plaintiff Gary W. Willis and against defendants Beauregard Parish Police Jury, Kenneth G. Everett and Government Employees’ Insurance Company, in solido, in the amount of $80,000.00 with legal interest from date of judicial demand until paid. It is further ordered, adjudged and decreed that the liability of Government Employees’ Insurance Company is restricted to its policy limits of $25,-000.00. Further, the judgment of the trial court dismissing the third party demand of Kenneth G. Everett and Government Employees’ Insurance Company against the Police Jury is reversed and judgment is rendered granting the respective third party demands of the defendants awarding each contribution from the other for any amount either may pay in satisfaction of said judgment over and above their respective virile shares, i. e., one-half of the full amount of the judgment, subject however to the liability of Government Employees’ Insurance Company being restricted to its policy limits. Costs at the trial level and on appeal are to be borne one-half by Kenneth G. Everett and Government Employees’ Insurance Company and one-half by Beauregard Parish Police Jury.

REVERSED IN PART, AMENDED IN PART AND RENDERED.

      . LSA-R.S. 32:121 provides as follows:
      “A. When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to'the vehicle on the right.
      B. The right of way rule declared in Subsection A is modified at through highways and otherwise as hereinafter stated in this part.”

      . Combel v. Webster, 315 So.2d 338 (La.App. 4th Cir. 1975); Zito v. Kuhn, 309 So.2d 806 (La.App. 4th Cir. 1975); Becken v. Stonewell Insurance Co., 275 So.2d 470 (La.App. 2nd Cir. 1973); State Farm Mutual Automobile Insurance Company v. Niagara Fire Insurance Co., 183 So.2d 145 (La.App. 1st Cir. 1966, writs refused); Lambright v. Aetna Casualty & Surety Company, 258 So.2d 100 (La.App. 2nd Cir. 1972, writs denied).


text:
    James Harold RICHARD v. HEBERT’S CREAMERY, INC., et al.
    No. 6500.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.

      Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

This is a suit in tort by plaintiff, James Harold Richard, against defendant, Hebert’s Creamery, Inc., and certain executive officers of the corporation. Defendants filed exceptions of no right and no cause of action, contending that plaintiff was acting in the course and scope of his employment at the time the alleged injuries were received, and Act 147 of 1976 gives them immunity from personal liability.

The accident is alleged to have occurred on September 9, 1976 and the effective date of the act was October 1, 1976.

The trial court held that the act should be given retroactive application and sustained the exception, dismissing plaintiff’s suit.

On appeal, the only issue is whether Act 147 of 1976, which amended LSA R.S. 23:1032 to legislatively prohibit the so-called “executive officer suits”, is to be given retroactive application.

The act in question is substantive in nature and is not interpretative, remedial, or procedural. Accordingly, it is prospective in application and not retroactive. Green v. Liberty Mut. Ins. Co., 352 So.2d 366 (La.App. 4 Cir. 1977); Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3 Cir. 1978).

The judgment of the trial court is reversed; the exceptions of no right and no cause of action are overruled, and the case is remanded to the trial court for further proceedings.

All costs on appeal are taxed against defendants-appellees.

REVERSED AND REMANDED


text:
    Mrs. Levy HANKS, Plaintiff-Appellant, v. DRS. RANSON, SWAN & BURCH, LTD., et al., Defendants-Appellees.
    No. 6502.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Writ Refused July 3, 1978.

      J. Minos Simon, Lafayette, for plaintiff-appellant.
    Pugh & Boudreaux, Charles J. Bou-dreaux, Lafayette, for defendants-appel-lees.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a suit for damages by Mrs. Levy Hanks based upon the alleged negligence of Dr. U. J. Arretteig, a pathologist, and Dr. Arthur Vidrine, a surgeon, arising out of a surgical procedure wherein a mastectomy (removal of the left breast) was performed by Dr. Vidrine upon Mrs. Hanks. Joined as defendants were a medical corporation (Drs. Ranson, Swan & Burch, Ltd.), Lafayette Medical Laboratories, Inc., Dr. Arretteig, Dr. Vidrine and their insurers. Prior to trial on the merits, a compromise settlement was entered into by Mrs. Hanks with Dr. Arretteig and all the other defendants except Dr. Vidrine and his insurer, St. Paul Fire & Marine Insurance Company. The case was tried against Dr. Vidrine and his insurer before a jury which rendered a verdict in favor of defendants. From an adverse judgment, the plaintiff appealed, alleging that the trial judge failed to properly instruct the jury. We affirm.

Dr. Vidrine, a qualified surgeon of Lafayette, Louisiana, had examined Mrs. Hanks during the year of 1973 and had found a lump in her left breast. In January 1974 he found that the lump had become enlarged. Dr. Vidrine recommended surgical exploration to determine whether the growth was cancerous or benign. Dr. Vidrine informed Mrs. Hanks that she had a lesion in her breast which he felt should be removed. He further informed her that he would place her in the hospital and put her under general anesthetic for the purpose of performing the removal of the lesion. He further stated to Mrs. Hanks that the lesion would be removed and examined by a pathologist. If the pathologist diagnosed cancer, the breast would then be removed. If the pathologist concluded otherwise, the incision would be closed and she would be able to return home the following day.

Mrs. Hanks submitted to surgery on February 7, 1974. Dr. Vidrine placed Mrs. Hanks under general anesthetic and removed a portion of the lesion. He sent the removed tissue to Dr. Ulysses J. Arretteig, a qualified pathologist, for the purpose of performing a quick-freeze examination and diagnosis. Dr. Arretteig performed an examination of the sample and determined that it was cancerous. He informed Dr. Vidrine of the cancerous condition while Mrs. Hanks was still under anesthetic. The surgeon thereupon proceeded to remove Mrs. Hanks’ left breast. The following day Dr. Arretteig prepared a permanent section of the tissue, examined same and discovered that his first diagnosis was in error. On the second examination Dr. Arretteig diagnosed a benign condition known as scleros-ing adenosis. The error in diagnosis was made known to Dr. Vidrine by the pathologist on the day after the operation, which was too late to save the breast.

The details of the diagnostic procedure are important to this opinion. They were explained by the pathologist, Dr. Ulysses Arretteig, who said that during the operation Dr. Vidrine removed tissue from the affected organ and requested a minimum frozen section examination. This pathologist examined the tissue with the naked eye and selected the portion that he wanted to examine closer by microscope. The tissue was then placed in a “microtome”, which is a freezing chamber that freezes the tissue down to 20 degrees below zero. The purpose of the freezing is to make the tissue firm enough to make very thin slices. This microtome contains a surgical-type knife which cuts the tissues to a thickness of 8 to 10 microns. This is an extremely thin slice, thin enough that the pathologist can stain it, pass light through it, and observe the tissue by microscope. After he examined same by microscope, he concluded that a cancerous condition existed. This was communicated to Dr. Vidrine who then performed the radical mastectomy on Mrs. Hanks. Dr. Arretteig further explained that in all cases it is necessary that the pathologist keep a permanent slide of. the tissue that he examines. This cannot be done with a frozen section as it cannot be kept frozen permanently. A permanent section is therefore taken which involves a process wherein the tissues are imbedded in paraffin and thin slices are removed from same. In order to effectuate a permanent section it is necessary to treat the tissues chemically, and this takes approximately 18 to 24 hours. After a permanent paraffin section is made, the pathologist examines the slide to make certain it is of good readable quality. Dr. Arretteig made the permanent slide and upon examination of same discovered his erroneous diagnosis of the frozen section.

Mrs. Hanks alleged that Dr. Arthur Vid-rine, Jr., the surgeon, knew or should have known that the frozen section examination was not accurate or reliable as a procedure for determining whether tissue was cancerous or benign. She further alleged that Dr. Vidrine was negligent in performing the mastectomy without getting a second reading by the pathologist from a permanent section.

Mrs. Hanks further alleged that Dr. Vid-rine failed to comply with the informed consent law of this state by not informing her that the two procedures were available, that is, the frozen section and the permanent section, which would have given her the option of determining whether she wanted to get the benefit of both procedures and examinations before any operation was performed. She alleges that by virtue of the lack of informed consent Dr. Vidrine is liable.

The principal issue involved on this appeal is whether the trial judge properly instructed the jury on the legal principles involving informed consent.

The charge given by the trial court reads as follows:

“Louisiana law recognizes the informed consent doctrine. Not only must a patient consent to an operation but such consent must be an informed consent. A physician has a duty to disclose material facts reasonably necessary to allow the patient to form the basis of an intelligent consent. It is not incumbent upon an attending physician to advise a patient as to every conceivable possibility and eventuality that may stem from that physician’s treatment. If the possibility is one that can reasonably be anticipated and falls within the expertise of the treating physician, then the treating physician should so inform his patient. Consent is not properly given if the operation involves risks and results not contemplated or explained to the patient. A physician’s breach to disclose a possible danger is not a breach of duty on his part in the absence of a showing that the patient’s consent would have been withheld if the patient would have been informed of the danger.
“A physician is not required to inform his patient of a remote or rare possibility, or an event which cannot be reasonably anticipated. In determining whether or not a possibility is remote or rare or whether the result can be reasonably anticipated you must consider the testimony of medical experts who are familiar with the standard of care in the community.”

The above charge is an adequate correct statement of the law of Louisiana on informed consent, which law can be found in the cases of Parker v. St. Paul Fire and Marine Insurance Company, 335 So.2d 725 (La.App. 2nd Cir. 1976), writ refused 338 So.2d 700 (1976), and DeLaune v. Davis, 316 So.2d 7 (La.App. 1st Cir. 1975). The plaintiff alleges that the last paragraph of the above instruction required the jury to decide that the physician’s duty to disclose a material risk to the patient was governed by the standard of practice of other physicians in the same community rather than as a duty imposed by law. This position is without merit simply because a reading of the instruction reflects that the jury was to consider testimony of medical experts familiar with the standard of care in the community to determine whether the risk was remote, rare, or could be reasonably anticipated.

In support of her position, the appellant cites the case of Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977) which adopted the view that the physician is under a duty to disclose all known risk material to the patient’s decision, and, given the risk, the trier of fact is competent to decide, without the aid of experts, whether the risks were material and should have been disclosed. This decision seems to state that the testimony of the experts should not be considered in determining whether the duty to disclose has been properly performed. We conclude, however, that expert testimony is essential in complex medical problems in order for the jury to decide whether the risk is rare, remote, or could reasonably be anticipated by the physician. To this extent, we disagree with the conclusion reached in Percle.

The case at hand involves such a complex medical problem. The physicians testifying in this case all stated, as a matter of fact, that this is the first time that a situation has developed wherein a pathologist diagnosed the frozen tissue as being cancerous and on second reading of the permanent section found that he had made an erroneous diagnosis, thereby causing the surgeon to perform an unnecessary mastectomy. This testimony gave the jury an opportunity to determine for themselves whether this was a risk that could be classified as rare, remote or one that could reasonably be anticipated by the physician. This testimony was relevant for a jury determination of whether the two types of sections and procedures should have been disclosed to the patient.

We find the surgeon did not breach his duty of disclosing information necessary in order for the patient to intelligently exercise her judgment. The risk in this case was so rare or remote that it could not have been reasonably anticipated by Dr. Vidrine.

Appellant further contends that the court failed to give the “Favalora” charge. In Favalora v. Aetna Casualty & Surety Company, 144 So.2d 544 (La.App. 1st Cir. 1963), it was held that a physician can still be found negligent, even if he meets the standard of care in the local community, where the community standard is unreasonable. The “Favalora ” charge was contained in the instructions and is found on Pages 338 and 342 of the transcript.

The appellant further contends that the trial court erred in invoking a double burden of proof on the plaintiff when the jury was charged that the plaintiff had to prove that the defendant did not exercise the degree of care in the community and that defendant was guilty of negligence. Plaintiff contends that the proof of one or the other is sufficient. We find no merit to this argument since the jury instructions later clarified this statement with a proper and explicit statement of the law. Eugene v. Douglas, 260 So.2d 69 (La.App. 4th Cir. 1972), writ refused, 261 La. 1044, 262 So.2d 35 (1972).

We have reviewed the instructions submitted to the jury by the trial court in light of the allegations and the issues presented in the trial of this case. It is concluded that Mrs. Hanks was accorded a meaningful jury trial. A meaningful jury trial includes proper instructions by the court. Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. Bienvenue v. Angelle, 254 La. 182, 223 So.2d 140 (1969). The instructions given by the trial judge adequately accomplished the foregoing purpose and enabled the jury to reach a verdict which is fully supported by the evidence and the law.

For the foregoing reasons, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

      . 8 microns = .00031496 inches.

      . “Louisiana law recognizes the informed consent doctrine. Not only must a patient consent to an operation but such consent must be an informed consent. A physician has a duty to disclose material facts reasonably necessary to allow the patient to form the basis of an intelligent consent. Goodwin v. Aetna Casualty & Surety Company, 294 So.2d 618 (La.App. 4th Cir. 1974). It is not incumbent upon an attending physician to advise a patient as to every conceivable possibility and eventuality that may stem from that physician’s treatment. If the possibility is one that can reasonably be anticipated and falls within the expertise of the treating physician, then the treating physician should so inform his patient. DeLaune v. Davis, 316 So.2d 7 (La.App. 1st Cir. 1975). Consent is not properly given if the operation involves risks and results not contemplated or explained to the patient. Rogers v. Lumbermens Mutual Casualty Company, 119 So.2d 649 (La.App. 2nd Cir. 1960). A physician’s failure to disclose a possible danger is not a breach of duty on his part in the absence of a showing that the patient’s consent would have been withheld if the patient had been informed of the danger. Goodwin v. Aetna Casualty & Surety Company, supra; Zachary v. St. Paul Fire & Marine Ins. Co., 249 So.2d 273 (La.App. 1st Cir. 1971).”

      . “Plaintiff contends that under the ‘informed consent doctrine’ as expressed in Goodwin v. Aetna Casualty & Surety Co., 294 So.2d 618 (4th La.App., 1974), it was incumbent upon Dr. Aeree to advise the decedent of such a possibility. We agree with the ‘informed consent doctrine’ and concede that the same may by analogy be applied in the instant case if the facts so warranted. However, we do not believe that it is incumbent upon an attending physician to advise a patient as to every conceivable possibility and eventuality that may stem from that physician’s treatment. If the possibility is one that can be reasonably anticipated and falls within the expertise of the treating physician, then the treating physician should so inform his patient. However, relating the facts in the instant case to the application of this theory, we find the possibility of a traumatic aortic aneurysm to be so remote as to be beyond the realm of reasonable probability.”

      . Dr. Arretteig, pathologist
      Dr. Swan, pathologist
      Dr. Brierre, pathologist
      Dr. Vidrine, surgeon
      Dr. LaBorde, surgeon
      Dr. Smith, surgeon.

      . (p. 338) “A member of the medical profession is not relieved from liability for injury to a patient on the ground that he followed a degree or standard of care practiced by others in the same locality when the degree or standard of care in question is shown to constitute negligence because it fails to meet the test of reasonable care and diligence required of the medical profession."
      (p. 342) “Even though you may find that a physician or surgeon possesses that degree of reasonable and ordinary care, diligence and skill in the diagnosis and treatment of his patient as that ordinarily possessed and exercised by physicians similarly engaged in the same or similar locality, such a physician or surgeon is nonetheless guilty of actionable negligence if, in the diagnosis or treatment of his patient, he fails to exercise due care in the diagnosis and treatment of his patient.”