author: HOOD, Judge. GUIDRY, Judge.

text:
    Cecil PETTIS, Plaintiff-Appellant, v. STATE of Louisiana, Through State DEPARTMENT OF HOSPITALS, et al., Defendants-Appellees.
    No. 5419.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 1976.
    Rehearings Denied on Applications of Dr. Kent, Cecil Pettis and Kirkpatrick & TriState Insurance Company, July 1, 1976.
    On Rehearing Aug. 20, 1976.
    Writs Refused Sept. 24, 1976.
    Rehearings Denied Sept. 28, 1976.
    Writs Granted In Part and Denied In Part Dec. 3, 1976.

      William Henry Sanders, Jena, Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Adams & Reese, by Harold A. Thomas, New Orleans, Lawrence W. Bell, Baton Rouge, Gold, Hall, Hammill & Little, by James D. Davis, Alexandria, for defendants-appellees.
    Provosty & Sadler, by LeDoux R. Pro-vosty, Jr., Alexandria, for defendants-ex-ceptors.
    Before HOOD, GUIDRY and PETERS, JJ-
   HOOD, Judge.

Cecil Pettis claims damages for personal injuries sustained by him while he was being treated in the Central Louisiana State Hospital. The defendants are: (1) State of Louisiana, through the Louisiana Health and Human Resources Administration (Successor to State Department of Hospitals, and Central Louisiana State Hospital); (2) Dr. Arthur L. Seale; (3) Dr. Earl H. Kent; (4) Dr. William L. Kirkpatrick, and (5) Tri-State Insurance Company (insurer of Dr. Kirkpatrick). Although Dr. Harvey B. Henry was originally named as a defendant, the suit subsequently was dismissed as to him. Answers were filed by all defendants. One of them, State of Louisiana, filed a third party demand seeking to recover from defendants Kent and Kirkpatrick any amounts which the State may be condemned to pay plaintiff.

The case was tried before the trial judge alone insofar as it related to plaintiff’s claim against the State of Louisiana. It was tried by jury insofar as it related to his demands against all other defendants. The trial judge concluded that plaintiff was not entitled to recover from the State, and the jury returned a verdict in favor of the other defendants. Judgment was rendered by the trial court in favor of all defendants dismissing plaintiff’s suit. The judgment also dismissed the State’s third party demand. Plaintiff appealed.

The State answered the appeal, praying that in the event the judgment of the trial court is reversed or modified its third party demand be maintained, and that judgment be rendered in favor of the State against the third party defendants for any amount which the State might be condemned to pay plaintiff.

This case was before us on a prior occasion. The trial court rendered a summary judgment on January 22, 1973, dismissing the suit as to the State of Louisiana, and it rendered another judgment on January 23, 1973, sustaining exceptions of no cause of action filed by defendants Seale, Kent and Kirkpatrick. Plaintiff appealed. We reversed both of those judgments and remanded the case to the trial court for further proceedings. Pettis v. State Department of Hospitals, 281 So.2d 881 (La.App. 3 Cir. 1973).

A number of issues are presented on this appeal, the principal ones being: (1) Were defendants Seale, Kent and Kirkpatrick, or any of them, negligent in having failed to exercise the proper degree of skill in treating plaintiff? (2) Were the nurses or employees of Central Louisiana State Hospital negligent in having failed to exercise the proper degree of skill in administering to or caring for plaintiff ?

During the early part of 1971 Pettis experienced some mental problems while living with his sister, Mrs. Lucille Smith, in Union Parish, Louisiana. A social worker suggested that he seek psychiatric treatment, and in response to that suggestion he went to the Mental Health Center at Rus-ton, Louisiana, where he was accepted as a welfare client. The health center arranged for him to be admitted to Confederate Memorial Hospital, in Shreveport, where he remained for approximately two weeks.

On April 26, 1971, Mrs. Smith signed an application for Pettis to be admitted to the Central Louisiana State Hospital in Pineville, for observation, care and treatment. The coroner of Union Parish and another physician certified that plaintiff was in need of observation, care and treatment for mental illness, and they recommended that he be committed to a mental hospital. On the basis of the above application and certificate, the district judge in Union Parish issued an order directing that Pettis be committed to the Central Louisiana State Hospital, pursuant to the then existing provisions of LSA-R.S. 28:52. Plaintiff thereupon was transported by a deputy sheriff of Union Parish from the Confederate Memorial Hospital, in Shreveport, to the Central Louisiana State Hospital, in Pineville.

Plaintiff was admitted to Central Louisiana State Hospital on May 10, 1971. On that date he received a psychiatric or mental examination, and on the next day, May 11, he was given a complete physical examination. Following those examinations, a provisional diagnosis of schizophrenia, chronic undifferentiated type, was made and a tentative treatment plan for Pettis was outlined.

On May 11, 1971, Pettis was transferred from the admissions unit to the intensive psychiatric care unit of the Central Louisiana State Hospital. Dr. Leroy Kirkpatrick, a medical doctor who specializes in psychiatry, was director of that unit. Dr. Earl H. Kent, a licensed physician, was employed by the hospital and he worked under the direction of Dr. Kirkpatick in the intensive psychiatric care unit. Several registered nurses, practical nurses and attendants also worked in that unit.

Upon the arrival of plaintiff in the intensive psychiatric care unit, he was given an EKG, and dorsal spinal x-rays were taken. The x-rays of his spine were normal, except that they showed a scoliosis of the back. Plaintiff underwent some chemotherapy treatments for about ten days, consisting principally of the administration of tranquilizing drugs, but he showed a very minimal response to that treatment. His treating physicians, Dr. Kent and Dr. Kirkpatrick, thereupon jointly decided that electroconvulsive therapy (ECT), or shock treatments, should be administered to Pet-tis.

A total of four ECT or shock treatments were administered to plaintiff. The first such treatment was administered to him on Friday, May 21, 1971. The second was given on May 24. The third was given on May 26, and the last electroshock treatment was administered to plaintiff on May 28, 1971.

Records or “notes” were kept for each patient by nurses or attendants at Central Louisiana State Hospital, purporting to show relevant facts as to his condition, including the treatment given to and the complaints made by the patient. These hospital records or nurse’s notes relating to Pettis show that on May 25, shortly after the second electroshock treatment was given, Pettis was “complaining about back and shoulder hurting.” Two additional shock treatments were administered after that notation was made, one on May 26 and the other on May 28. A note on his chart made on May 27 indicates that he was confused and did not know where he was. The hospital records show that on May 28, immediately after the fourth shock treatment was given, Pettis was very slow in his movements, he was confused and he was “complaining of back, lumbar and dorsal of spine.”

On May 29, entries made by nurses or attendants showed that Pettis was “complaining of pain in arms and legs.” On May 30, they noted that he “appears completely helpless, can’t move arms or legs . complaining of pain in arms and legs.” On May 31, the chart shows that he was “still complaining of pain in legs and back.” On June 1, it was noted that he “still complains with hurting all over.” A notation on June 2 states that plaintiff remains in bed and will not make an effort to walk. And, on June 3 an entry on the nurse’s notes shows that Pettis “has old bruise of right shoulder — down arm to elbow — shoulder swollen and tender to touch. May have fracture.”

Dr. Kent examined plaintiff on Friday, May 28, after the fourth shock treatment was administered. He ordered that x-rays be made of plaintiff’s back and that the giving of further shock treatments be discontinued.

X-rays of plaintiff’s back were made on May 28, as directed, but Dr. Kent did not receive the report of those x-rays until the following Monday, May 31. The report revealed that plaintiff had fractures of the bodies of three thoracic vertebrae, T-6, T — 7 and T-8. Dr. Kent examined Pettis on Tuesday, June 1, having been advised by that time of the fractured vertebrae and of plaintiff’s repeated complaints of pain in his arms and legs. The examination consisted principally of the manipulation of plaintiff’s legs and thighs. No further x-rays were ordered at that time, and Dr. Kent did not see plaintiff again, except for one brief period, although he examined his chart on June 3 and 4. The chart showed that Pettis’ abdomen^ was swollen and distended on June 4, so Dr. Bozeman, a general practitioner, was called to examine him. Dr. Bozeman ordered that Pettis be transferred to the Medical Surgical Unit of the hospital, and that transfer was made on June 4.

An x-ray examination was made of plaintiff’s shoulders on June 4, after he was transferred to the Medical Surgical Unit, and those x-rays revealed that plaintiff had a fracture of the surgical neck of the left humerus and also a comminuted impacted fracture of the surgical neck of the right humerus. The x-ray report reads:

“LEFT SHOULDER: Examination of the left shoulder reveals the presence of a fracture involving the surgical neck of the humerus with moderate various deformity. There is evidence of healing.
“RIGHT SHOULDER: Examination of the right shoulder reveals the presence of a comminuted impacted fracture of the surgical neck of the humerus. Again there is evidence of healing. These fractures appear to be approximately 3 to 4 weeks old.”

An x-ray examination of plaintiff’s pelvis, ordered by the Medical Surgical Unit, was made on June 7, 1971, and it revealed that plaintiff had fractures involving both femoral necks. The x-ray report reads:

“PELVIS: Examination of the pelvis reveals fractures involving both femoral necks with marked various deformity bilaterally. These fractures appear to have occurred at approximately the same time as those involving the shoulders. It appears that the patient has been walking since the fractures occurred.”

Pettis was transferred to the Huey P. Long Charity Hospital on June 7, 1971, where surgery was performed on both of his hips. He contends that he has never recovered from these fractures and that he is totally disabled as a result of the accident.

The above shock treatments were administered to Pettis without the use of any pre medication, except atropine. The medical evidence is uniform to the effect that fractures frequently are sustained by patients where shock treatments are performed without first administering a tranquilizer or paralyzing drug, such as “Anec-tine.” The experts estimated that from two to 30 percent of the patients who are given shock treatments without the use of a paralyzing drug sustain fractures. Usually the fractures relate to the vertebrae, but occasionally other bones of the body are fractured, such as the shoulders, arms and hips. It is very rare for fractures of the femur to result from those treatments.

Dr. Arthur L. Seale, superintendent of Central Louisiana State Hospital, and Drs. Kirkpatrick and Kent, testified that the nurses and attendants keep a chart on each patient, but that the doctors do not have time to read that chart before each shock treatment is administered. For that reason, it is and has been a custom in that hospital for the Chief Nurse on the morning shift to compile a “24 hour report” on each patient, which she submits to the clinical director at about 8:00 o’clock every morning. In that 24 hour report, the nurse lists the unusual things which happened to the patient during the preceding 24 hour period, which she feels should be called to the attention of the doctor. All agree that the nurses are trained to know the information which should be included in the 24 hour report, and the information which should be called to the attention of the doctors. They also agree that it is important that the attending or treating physician be advised promptly of any complaint of pain made by a patient who receives shock treatments, because of the danger of fractures.

Dr. Kirkpatrick administered all of the above shock treatments to plaintiff. He did not examine Pettis at any time, however, and he has no independent recollection of having ever seen plaintiff or of having administered the treatments to him. He stated that it was not his responsibility to examine the patients, but that it was the responsibility of the attending physician, Dr. Kent, to do so. He testified, however, that “He (Pettis) wasn’t my patient, but I am the director of the unit and I am responsible for the patients on the unit, actually.” He knew that Dr. Kent had examined plaintiff before the first shock treatment was administered, and he indicated that Dr. Kent was under no duty to examine the patient between such treatments unless he learned that the patient had complained of pain after a treatment was given.

Dr. Kirkpatick testified that he did not know that plaintiff had complained of pain prior to the morning of May 26. He stated that if he had known of those complaints he would have examined plaintiff before administering the third shock treatment on that day, that he probably would have x-rayed him, and that he would have postponed the giving of another such treatment until plaintiff’s condition could be determined. He testified that he determines the kind of complaints which are made by patients, “by questioning them and reviewing the history that was taken on admissions unit and by observation and by questioning the attendants and the nurses that had contacts with them.” He also stated:

“Our attendants and supervisors and nurses are instructed to question these patients after electric shock therapy to see if they have any complaints. If they have any complaints, they report them to us and then we examine the patient.”
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“. . . we rely very heavily on the (24) hour report.”

Dr. Kent examined plaintiff on several occasions before the first shock treatment was administered. He, in fact, examined him on May 20, the day before the first treatment. He did not examine plaintiff again until May 28, however, after the fourth and last such treatment had been given. Dr. Kent testified that he did not know that plaintiff had made any complaints of pain prior to May 28, and that he learned about it for the first time on May 28 when an “attendant” told him that plaintiff was suffering pain after the fourth shock treatment had been administered that morning. He stated that he depended on the nurses to inform him about any complaints made by the patient, that he received no such information until after the fourth treatment was administered. We assume from his testimony that he did not look at plaintiff’s chart or the “nurse’s •notes” prior to May 28, and that plaintiff’s complaints were not noted in any of the 24 hour reports submitted prior to that date. He concedes, however, that “certainly, to some extent,” the nurses are under his supervision.

Dr. Kent’s testimony, as we understand it, was that he examined the “24 hour report,” made by the Chief Nurse for May 25 relating to Pettis, before the third shock treatment was given on May 26, and that there was nothing in that report which indicated that Pettis had complained of pain in the above mentioned areas. He stated that if such a notation had been made, he would have examined plaintiff immediately and would have suspended any further shock treatments until his condition had been determined. Since nothing was said in the 24 hour report about complaints of pain, he assumed that no such complaints had been made.

The record contains the “nurse’s notes” or the chart kept for Pettis while he was in the hospital. As we have already observed, these notes contain a statement that plaintiff complained of pain in his back and shoulder on May 25. The record does not contain a copy of the “24 hour report” made by the nurses covering that day, or any other day. Neither the Chief Nurse on that shift, nor anyone else, was called to explain why the 24 hour report was not introduced in evidence. No one contradicted the statement of Dr. Kent that the 24 hour report submitted immediately prior to the May 26 shock treatment failed to show that plaintiff had complained of pain the previous day.

Pettis did not have any bone fractures before the first shock treatment was administered to him on May 21, 1971. He had several fractures after the last such treatment was administered on May 28. We find that all of the above fractures were sustained by him as the result of the shock treatments which were administered at the Central Louisiana State Hospital.

Plaintiff contends, first, that the defendant doctors were negligent in not administering a muscle relaxant or a muscle paralyzing drug, such as Anectine, to Pettis before performing each shock treatment. He argues that these treating physicians thus failed to exercise the degree of skill ordinarily employed by members of their profession in the same community or locality, and that they failed to use reasonable care and diligence, along with their best judgment, in the application of their skills to the case.

The applicable law was stated by our Supreme Court in Meyer v. St. Paul-Mercury Indemnity Co. of St. Paul, Minn., et al, 225 La. 618, 73 So.2d 781 (1953), as follows :

“A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.”

The burden of proof rests on the plaintiff in a malpractice suit to establish that the defendant physician deviated from the required standard of skill and care. DeLaune v. Davis, 316 So.2d 7 (La.App. 1 Cir. 1975).

Eight doctors testified in this case, including the three doctors who are defendants. Seven of them expressed opinions as to whether it is good or accepted medical practice for a physician to administer a shock treatment without the use of a muscle relaxant or muscle paralyzing drug, such as Anectine. Some of them preferred to use that type drug in administering shock treatments, while others preferred not to use it. All recognized the fact that there is a greater danger of the patient sustaining fractures if the drug is not used, but that there is a slightly greater danger of loss of the patient’s life, due to respiratory failure or cardiac arrest, if the drug is used. All of the medical experts seem to agree, however, that either procedure is acceptable to members of the medical profession in good standing in that community, and that the doctor who administers that treatment may, consistent with good medical practice, use his best judgment as to whether to use the tranquilizer or muscle paralyzing drug, or not to use it, in any case.

We find no negligence on the part of Dr. Kirkpatrick or Dr. Kent in failing to use Anectine, or a similar drug, in performing shock treatments on plaintiff. See also Chapman v. Argonaut-Southwest Insurance Co., 290 So.2d 779 (La.App. 1 Cir. 1974).

Plaintiff contends next that the defendant doctors were negligent in failing to examine plaintiff after each electric shock treatment was administered to determine whether he was in good physical condition before giving another such treatment. They argue, particularly, that Doctors Kirkpatrick and Kent were negligent in failing to determine whether plaintiff had sustained an injury to his back or shoulder prior to administering the third shock treatment on May 26.

We understand the statements of Dr. Kirkpatrick and Dr. Kent to be that both of those physicians examined the 24 hour report (covering May 25) before the third shock treatment was administered on May 26, but that there was no notation on that report of the fact that plaintiff had complained of pain in his back and shoulder on May 25. Dr. Kirkpatrick indicated that he usually questions the patient, and the attendants and nurses who had contact with him, about complaints made by the patient before administering another such treatment. There is nothing in the record, however, showing that he questioned plaintiff or the attendants or the nurses before giving the third shock treatment on May 26. We assume that he either didn’t question plaintiff that morning or that plaintiff did not tell him of those complaints when he was questioned. The evidence indicated that plaintiff was inclined to complain frequently. We think it is more probable than not that Dr. Kirkpatrick neglected to question plaintiff about his complaints on the morning of May 26, but instead that he, like Dr. Kent, relied on the 24 hour report which was prepared by the Chief Nurse. It also seems likely to us that if he had questioned the attendants or nurses he would have learned about the previous complaints made by plaintiff.

The question presented, therefore, is whether the treating physicians, Dr. Kirkpatrick and Dr. Kent, were justified in relying solely on the 24 hour report submitted by the Chief Nurse, which contained no mention of complaints made by plaintiff on the previous day, in concluding that plaintiff had not complained of pain prior to the administration of the third shock treatment.

In Favalora v. Aetna Casualty and Surety Co., 144 So.2d 544 (La.App. 1 Cir. 1962), the plaintiff’s hospital admission sheet showed that she had had an episode of “passing out,” but the hospital attendants failed to place that information on plaintiff’s admission sheet prior to the accident. The defendant radiologist neglected to question plaintiff about her history of having had fainting spells. He proceeded to give her an x-ray examination without obtaining that history from her, and in the course of that examination plaintiff fainted and sustained an injury. The Court of Appeal, First Circuit, held that the radiologist was negligent in having failed to secure plaintiff’s medical history prior to commencing the examination. The court said:

“In the case at bar we believe the failure of the radiologist to secure plaintiff’s medical history prior to commencing the examinations was negligence constituting a proximate cause of the accident. Had such a history been taken it would (or should) have disclosed that one of the purposes of the examinations was to determine, if possible, the reason why plaintiff was subject to fainting. We have little doubt but that the disclosure of such information would have prompted an increased alertness on the part of the radiologist and technician involved herein.”
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“. . . The negligence of Dr. Boyer, therefore, consisted not in his lack of skill or competence but in his failure to exercise due care by neglecting to remain sufficiently alert to a reasonably foreseeable expectancy the occurrence of which was calculated to cause injury to plaintiff.”

The court concluded in Favalora that the technicians and employees of the hospital also were negligent, holding that “had the floor nurse secured a clinical history of plaintiff and entered it on the space reserved on the requisition slip for this specific purpose, the radiologist would have been alerted to the peculiar circumstances surrounding plaintiff’s admission for diagnostic purposes.” The court noted that the hospital technicians were highly trained in that particular field, but that that did not relieve the doctor from liability on the ground that those technicians had failed to alert him to the danger.

We think the rule applied in Fava-lora is applicable here. Despite the negligence of the nurses and attendants of the hospital in failing to inform the doctors of plaintiff’s complaints, we believe that Dr. Kirkpatrick and. Dr. Kent had the duty of determining whether plaintiff had experienced pain as a result of the shock treatments, thus indicating the possibility of a fracture, prior to administering another such treatment on the morning of May 26. We do not believe that the failure of the 24 hour report to contain a notation to that effect is sufficient to relieve the doctor of the duty of determining whether plaintiff actually had suffered some symptoms of a fracture before subjecting him to another treatment.

Dr. Kirkpatrick stated that he customarily determines whether a patient has complained of pain by questioning the patient and the nurses and attendants before he performs a shock treatment. In this instance, it is apparent that plaintiff could have been questioned immediately prior to the administration of such a treatment on the morning of May 26 and we conclude that the doctor neglected to do so. We know of no reason why the Chief Nurse, who went off duty at 8:00 o’clock on the morning of May 26, could not have been questioned, since the evidence indicates that the doctor began administering shock treatments at 7:30 each morning, and that the report of the nurse is submitted at 8:00.

Although the doctors testified that they did not have time to read the nurse’s notes relating to plaintiff before administering the third shock treatment, we note that the entries made on plaintiff’s chart showing the events which occurred on the preceding day, May 25, constitute a total of three lines on that chart. It would have required only a moment for the doctors to have read the two short entries made on that chart after the last shock treatment was administered, and if that had been done, they would have known that plaintiff had complained about “back and shoulder hurting” on May 25.

We think Dr. Kirkpatrick and Dr. Kent failed to exercise reasonable care in proceeding to administer a shock treatment to plaintiff on May 26, without first determining whether plaintiff had sustained a fracture as a result of a similar treatment given just two days prior thereto. Their negligence did not involve an error of judgment or lack of skill, but rather it consisted of the failure to exercise reasonable care and diligence in the application to the patient of the degree of skill which each of those doctors possessed.

Defendants contend, however, that there is no evidence in the record which establishes when the fractures occurred. They concede that there is some evidence to indicate that the compression fractures of the back may have occurred after the second shock treatment, but they argue that there also is evidence indicating that those fractures could have occurred after the fourth shock treatment. They take the position that these are questions of fact for the jury to determine, and that the verdict of the jury should not be upset if there is evidence to support it. We are unable to agree with this argument.

The evidence establishes that prior to the first shock treatment plaintiff had no fractures of the vertebrae or shoulder. After the second shock treatment, he complained of pain in his back and shoulder. Three days later, after the fourth shock treatment, x-rays revealed that he had fractures of the bodies of three thoracic vertebrae, a fracture of the neck of the left humerus, and a comminuted impacted fracture of the neck of the right humerus, as well as fractures of both legs. The preponderance of the evidence is that his complaints of pain made on May 25, after the second shock treatment, were due to fractures of his vertebrae and of the neck of at least one humerus.

We conclude that some of the fractures occurred as a result of the second shock treatment given on May 24. If the doctors had exercised reasonable care, we think they would have determined that plaintiff was suffering from those fractures before the shock treatment was given on May 26, that further shock treatments would have been suspended, and that additional injury to plaintiff would have been avoided.

Defendants contend further that even if these fractures occurred after the second shock treatment, there is no showing that they were aggravated by subsequent treatments. It is argued that the failure to examine Pettis after each shock treatment did not in any way contribute to his subsequent condition.

The evidence shows that plaintiff did not complain of pain in his legs until after the fourth shock treatment was administered. This indicates that the fractures of both legs occurred as a result of the fourth such treatment. The evidence also shows that the injury to plaintiff’s right shoulder was a “comminuted impacted fracture” of the neck of the humerus. Dr. Seale explains that “a comminuted fracture is one with multiple fragments, and the impacted means that they are pushed together.” The nurse’s notes show that on May 25 plaintiff was complaining about his back and shoulder “hurting,” but after May 28 those notes show that plaintiff was “completely helpless” and that he couldn’t move his arms or legs. His injuries thus were substantially more severe and more disabling after the fourth shock treatment than they were after the second such treatment. While we have no way of knowing the extent of the damage done as a result of the second treatment, we conclude that his condition was greatly aggravated by the administration of the last two shock treatments.

Our ultimate conclusion is that Dr. Kirkpatrick and Dr. Kent were negligent in failing to exercise reasonable care in determining plaintiff’s condition before administering the third and fourth shock treatments, and that their negligence in that respect was a proximate cause of the disabling injuries which Pettis has sustained. Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 706 (La.App. 3 Cir. 1975); Helms v. St. Paul Fire & Marine Insurance Co., 289 So.2d 288 (La.App. 3 Cir. 1974); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3 Cir. 1975); Lemoine v. Bunkie General Hospital, 326 So.2d 618 (La.App. 3 Cir. 1976); Bryant v. St. Paul Fire and Marine Insurance Company, 272 So.2d 448 (La. App. 2 Cir. 1973).

Dr. Seale was the superintendent of the hospital. The evidence shows that he did not examine or treat plaintiff, he did not authorize or perform the shock treatments and he had nothing to do with the decision made by Dr. Kirkpatrick and Dr. Kent to administer such treatments on May 26 and May 28. There is no error in the judgment of the trial court dismissing the suit as to Dr. Seale, and that part of the judgment appealed from will be affirmed.

The next question presented is whether the nurses, attendants or employees of the Central Louisiana State Hospital were negligent, with the result that the State is liable in damages to plaintiff.

The duty owed by a hospital to its patient is to exercise the degree of care, skill and diligence used by hospitals generally in that community, Lauro v. The Travelers Insurance Company, 261 So.2d 261 (La.App. 4 Cir. 1972); Killgore v. Argonaut-Southwest Insurance Co., 216 So.2d 108 (La.App. 2 Cir. 1968); Garrison v. Hotel Dieu, 319 So.2d 557 (La.App. 4 Cir. 1975).

A hospital must exercise reasonable care toward a patient, as the patient’s known condition may require. The hospir tal is liable for damages sustained by a patient as the result of the failure of the nurses, attendants or employees of the hospital to exercise ordinary care, whether the failure to exercise such care is due to incompetence or non-performance of duty. Meynier v. De Paul Hospital, 218 So.2d 98 (La.App. 4 Cir. 1969); Clarke v. The Gowen Sanatorium, Inc., 160 So.2d 426 (La.App. 2 Cir. 1964).

Where a physician is the employee of a hospital sued by a patient for particular injuries negligently inflicted during the course of the patient’s treatment, the hospital may be held liable for the injuries sustained by the patient under the doctrine of respondeat superior. Green v. State, Southwest Louisiana Charity Hospital, supra; Favalora v. Aetna Casualty and Surety Co., supra.

In the instant suit we think the nurses, attendants and employees of Central Louisiana State Hospital were negligent in having failed to include on the “24 hour report” a notation to the effect that plaintiff had complained of pain in his back and shoulder on May 25. The doctors testified that they relied on that report, and that if it had contained an entry showing that plaintiff had made such a complaint, they would have examined him before administering a shock treatment on May 26. The evidence convinces us that plaintiff’s injuries would be much less severe if such an examination had been made. The negligence of the nurses or employees of the hospital also constituted a proximate cause of the accident.

Central Louisiana State Hospital is under the administration and management of the Louisiana Health and Human Resources Administration. LSA-R.S. 46:1751. The State thus is liable in solido with the treating physicians for the damages which were sustained by plaintiff as a result of the negligence of the employees of the hospital.

Since we have found that some of the defendants are liable to plaintiff on other grounds, it is unnecessary for us to consider the latter’s claim that defendants are also liable for administering shock treatments to plaintiff without his consent.

The State does not mention in its brief the answer it filed to the appeal or its third-party demand against Dr. Kent and Dr. Kirkpatrick. We assume that it has abandoned that demand.

We turn now to the question of quantum.

Plaintiff was 40 years of age when the above shock treatments were administered to him. He was a ward of the State at that time. He has never held a paying job, and there is nothing in the evidence to indicate that he would ever have been able to hold such a job even if the accident had not occurred. The evidence thus fails to show that he has sustained a loss of wages, past or future, as a result of that accident.

All of plaintiff’s medical expenses have been provided or paid for by the State. He is now living in a nursing home at a cost of $441.00 per month, all of which costs have been and are now being paid by the State of Louisiana. He also receives a check from the Federal Government each month which is sufficient to take care of his drug bill and other incidental needs. Plaintiff is treated regularly by Dr. J. E. Booth, and all of Dr. Booth’s charges are paid by the State. Plaintiff thus has sustained no special damages of any kind.

Surgery was performed on plaintiff’s hip on two occasions, in 1971 and in early 1972. He complains of pain now in his legs and of some limitation of motion in his arms. Plaintiff was admitted to the nursing home in October, 1971, with a diagnosis of “Psychoses (Mental Illness) Schizophrenic Bilateral Moore Prothesis.” Dr. Booth, his treating physician since 1972, testified that Pettis is crippled as a result of the accident, that he usually walks with a walker or a cane, but that he can walk without that assistance, although he walks with a “duck waddle type of walk.” He stated that plaintiff has some difficulty in getting up from a sitting position because of the deformity in his hips. The doctor feels that plaintiff has hit a plateau mentally and physically, that he will not improve very much, and that largely because of his mental condition he will require mostly custodial care in the nursing home. He stated, however, that were it not for plaintiff’s schizophrenia and his complete lack of motivation, he would be physically able to do many things of a gainful nature, especially if they could be performed while he is in a sitting position. With reference to the pain of which plaintiff complains, Dr. Booth said, “with his hips like they are, they could possibly hurt him some time . . . but it wasn’t anything severe or out of the ordinary.”

After considering all of the evidence, we have concluded that an award of $35,000.00 would be fair and adequate for plaintiff’s injuries.

For the reasons herein set out, the judgment appealed from is affirmed insofar as it rejects plaintiff’s demands against defendant, Dr. Arthur L. Seale, and dismissing the suit as to that defendant. The judgment appealed from is reversed insofar as it dismisses the suit as to all other defendants, and judgment is hereby rendered in favor of plaintiff, Cecil Pettis, and against defendants (1) State of Louisiana, through the Louisiana Health and Human Resources Administration; (2) Dr. William L. Kirkpatrick; (3) Dr. Earl H. Kent, and (4) Tri-State Insurance Company, in solido, for the full sum of $35,000.-00, with legal interest thereon from date of judicial demand until paid, and for all costs of this suit. The costs of this appeal are assessed to defendants-appellees, State of Louisiana, Dr. Kirkpatrick, Dr. Kent and Tri-State Insurance Company, in equal proportions, except that the State of Louisiana is relieved of the payment of any costs which they are not legally obligated to pay.

AFFIRMED IN PART; REVERSED IN PART and RENDERED.

ON REHEARING

GUIDRY, Judge.

We granted a rehearing in this case on application of the State of Louisiana, through the Louisiana Health and Human Resources Administration (Successor to State Department of Hospitals and Central Louisiana State Hospital), hereinafter referred to as the State, to reconsider our decision dismissing applicants third party demand for indemnification against Drs. Earl H. Kent and William L. Kirkpatrick.

On original hearing we determined that the State had abandoned its previously filed third party demand against Drs. Kent and Kirkpatrick because it made no mention of same in brief to this court.

Although no mention of such demand appeals in the State’s brief filed with this court the record reflects that the State filed an answer to plaintiff’s appeal and prayed that the trial court judgment be affirmed or, in the alternative, that should the decision be reversed and this court hold that there was negligence on the part of Drs. Kent and Kirkpatrick, then and in that event, the State’s third party demand be recognized and the State be indemnified by third party defendants.

Rule VII, Section 5(b), Uniform Rules— Court of Appeal, provides that an appellate court may consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed brief prior to the time the case is called for argument. In the instant case the State filed its brief and appeared in open court and orally argued this matter. Able counsel for the State urges in brief that at the close of his oral argument he re-urged the State’s third party demand. Although we have no specific recollection of this fact we do not now question that he did so. On reconsideration we now conclude that the State’s third party demand is viable and that we erred in considering it abandoned.

On original hearing we determined that Drs. Kent and Kirkpatrick were negligent and that their negligence was a proximate cause of the disabling injuries which plaintiff sustained. We held further that Central Louisiana State Hospital was responsible for the negligence of these employees under the doctrine of respondeat superior and that since that hospital was under the administration and management of the Louisiana Health and Human Resources Administration, the State was liable to plaintiff. Considering these conclusions, which we do not disturb, it necessarily follows that the State is entitled to judgment over against Drs. Kent and Kirkpatrick for the amount awarded to plaintiff. It appears to be now well settled that where the master’s liability is founded solely on the doctrine of respondeat superior, he is entitled to reimbursement from his servant, the one primarily responsible, in the event he is required to pay damages as a result of the servant’s negligence. Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960); Caldwell v. Montgomery Ward & Company Inc., 271 So.2d 363 (La.App.2nd Cir. 1972); 34 L.L.R. 79.

For the above and foregoing reasons our original judgment is reinstated with the following modification to the end that the decree portion thereof shall read as follows :

“For the reasons herein set out, the judgment appealed from is affirmed insofar as it rejects plaintiff’s demand against defendant, Dr. Arthur L. Seale, and dismissing the suit as to that defendant. The judgment appealed from is reversed insofar as it dismisses the suit as to all other defendants, and judgment is hereby rendered in favor of plaintiff, Cecil Pettis, and against defendants (1) State of Louisiana, through the Louisiana Health and Human Resources Administration; (2) Dr. William L. Kirkpatrick; (3) Dr. Earl H. Kent, and (4) Tri-State Insurance Company, in solido, for the full sum of $35,000.00, with legal interest thereon from date of judicial demand until paid, and for all costs of this suit. Further judgment is rendered in favor of third party plaintiff, State of Louisiana, through the Louisiana Health and Human Resources Administration and against third party defendants, Drs. Earl H. Kent and William L. Kirkpatrick for the full amount paid by the State of Louisiana in satisfaction of the judgment herein rendered in favor of plaintiff-appellant, Cecil Pettis. The costs of this appeal are assessed to defendants-áppellees, State of Louisiana, Dr. Kirkpatrick, Dr. Kent and Tri-State Insurance Company, in equal proportions, except that the State of Louisiana is relieved of the payment of any costs which they are not legally obligated to pay.”

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Stephen P. NEWELL and Carol M. Newell v. DOUGLAS E. LANIER, INC.
    No. 10670.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Samuel A. Bacot, Baton Rouge, for appellants.
    Charles R. Moore, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

Plaintiffs Stephen P. Newell and Carol M. Newell purchased a house and lot from defendant Douglas E. Lanier, Inc. on September 5, 1974. As part of the purchase price, they gave to defendant a promissory note for $11,450.00, dated September 5, 1974, and payable in monthly installments of $500.00, including principal and interest at the rate of 8SA per cent, per annum. The note was secured by a second mortgage on the property acquired.

On May 13, 1975, this suit was filed, seeking rescission of the sale because of redhibitory defects in the house. Alternatively, plaintiffs asked for a reduction in the purchase price, plus damages and attorney’s fees, and that the note given to defendant be reduced by the amount of any money judgment awarded.

On May 29,1975, plaintiffs filed a motion alleging that the note given to defendant was the only asset which could be used to pay any judgment rendered against defendant herein, and that they had reason to believe that the proceeds of the note had been assigned or pledged to the American Bank and Trust Company to secure a loan made by defendant. Plaintiffs obtained an ex parte order directing them to make the $500.00 payments on the note into the registry of the court, and ordering the defendant and American Bank to deposit the note with the Clerk of Court pending final outcome of the case. It was alleged that the balance due on the said note had been reduced to approximately $7,200.00.

Thereafter, a preliminary default was entered on June 2, 1975, and confirmed by judgment dated June 20, 1975. The judgment awarded plaintiffs a $5,026.00 reduction in the purchase price, $2,000.00 in damages and $1,500.00 in attorneys’ fees, “by which total amount of $8,526.00 the note executed by plaintiffs on September 5, 1974, in the amount of $11,450.00 payable at the rate of $500.00 per month to the order of Douglas E. Lanier, Inc. at 8% per cent, interest is reduced and cancelled.”

On September 17, 1975, alleging itself to be one who could have intervened in the trial of the case, J & J Home Supply, Inc. took a devolutive appeal from the said judgment. It alleges itself to be the assign-ee of the note given by plaintiffs to defendant, and bases much of its argument on facts which do not appear in the record of this case. We can not consider any matters dehors the record.

The appellant who was not a party to the suit in the trial court must take the record as he finds it. Balis v. Mitchell, 48 So.2d 691 (La.App. 1 Cir. 1950). One who brings an appeal from a default judgment must overcome the presumption that the judgment is correct and was rendered on sufficient evidence, when the judgment contains the recital that evidence was taken and that the law and the evidence favor the plaintiff. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972). There is no note of evidence in this record, and the judgment herein contains the above recitals. The presumption of correctness is therefore applicable in this case.

Appellant therefore cannot and does not complain of that part of the judgment awarding damages to plaintiffs, nor to the amount thereof. The specifications of error are directed to that part of the judgment which reduces and cancels the promissory note to the extent of the damages awarded. It is argued that compensation can not take place between plaintiffs and defendant because the requirements of the law have not been met.

Articles 2207 through 2209 of the Civil Code provide:

“Art. 2207. When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.”
“Art. 2208. Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.”
“Art. 2209. Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable.
“The days of grace are no obstacle to the compensation.”

If the theory of compensation were the only basis for reduction and cancellation of the note, we would sustain the appellant’s position, because the judgment, when final, is immediately exigible in full, whereas payment of the promissory note may be demanded only in accordance with its terms, in installments of $500.00 per month. The two debts are not equally demandable, and therefore would not be subject to legal compensation. See Federal Deposit Ins. Corporation v. Page, 195 So. 629 (La.App. 2 Cir. 1940); Yung v. Magnolia Acceptance Corporation, 180 So.2d 222 (La.App. 4 Cir. 1965).

However, we believe that the amount of the note is reducible to the extent that the judgment is in quanti minoris, or $5,026.00. That is because we are dealing with only one debt or obligation rather than with two. The obligation is that of the purchasers-plaintiffs to pay that part of the purchase price represented by the promissory note. The effect of the judgment in quanti minoris is to reduce that obligation, and not to create a separate debt due by the defendant to the plaintiffs. Plaintiffs are therefore entitled to have the promissory note reduced by that amount.

The same is not true of that part of the judgment awarding damages and attorney’s fees. These are new debts, created by the judgment, and may not be applied to the note under the theory of compensation, because not equally demandable with the debt represented by the note.

The record does not reflect that the note has been negotiated by defendant to a holder in due course. The note was filed in the record without objection from anyone. Further, a holder in due course of the note would be protected from reduction thereof under either of the above theories, and we must presume that the record below was devoid of evidence that there was any negotiation of the note.

The judgment appealed from is therefore amended so as to provide that the principal balance due on the promissory note be reduced by the amount of $5,026.00, and further that there be judgment in favor of plaintiffs and against defendant in the full sum of $3,500.00, together with legal interest thereon from date of judicial demand until paid. All costs of this appeal are to be shared equally by plaintiffs and intervenor. All other costs are to be paid by defendant.

AMENDED AND AFFIRMED.


author: LOTTINGER, Judge.

text:
    AMERICAN BANK & TRUST COMPANY v. Frank FRENCH.
    No. 10824.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Arthur Cobb, Baton Rouge, for defendant-appellant.
    Ralph Brewer, Baton Rouge, for Rosina French.
    Gerald E. Songy, Baton Rouge, for plaintiff-appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

From the denial for a request of a jury trial without prepayment of cost, the defendant, Frank French, has perfected this appeal.

After a perusal of the record, we note the following chronology of events. Judgment was rendered orally denying the jury trial without the prepayment of cost on January 25, 1972, but was not read and signed until September 30, 1975. On the same day, the Clerk of Court mailed the notice of judgment, and the defendant by oral motion was granted an appeal which was made returnable on October 30,1975. By November 14,1975, neither the bond for the appeal had been filed, nor had the cost for the preparation of the record on appeal been paid to the Clerk of the Trial Court by the appellant, and thus a motion dismissing the appeal was granted by the Trial Court. On December 29, 1975, an appeal bond was filed, and another motion for an appeal was filed and granted on January 9, 1976.

Until the appeal bond is timely filed, the jurisdiction of the Trial Court over the case is not divested, and thus the Trial Judge was correct in dismissing the appeal on November 14,1975, for failure to pay the cost to the Clerk of the Trial Court as provided by LSA-C.C.P. art. 2126.

We are of the opinion that as of the dismissal of the appeal on November 14, 1975, there was no order outstanding granting an appeal and requiring the filing of an appeal bond. Thus, when the appeal bond was filed on December 29, 1975, it was not then filed in compliance with any outstanding order granting an appeal, and it could not retroactively resurrect the order of September 30, 1975, granting the appeal.

The judgment was read and signed and notice mailed on September 30, 1975, and the delay for applying for a new trial commenced on October 1, 1975, and terminated as of midnight, October 9, 1975, and thus the 90 day devolutive appeal period commenced to run on October 10,1975, and terminated as of midnight, January 7,1976. The second motion for the appeal and order granting same is dated January 9, 1976, after all delays for the taking of a devolu-tive appeal had expired. Thus we note on our own motion the lateness of the motion for appeal and order same dismissed. All costs of this appeal are taxed to defendant-appellant.

APPEAL DISMISSED.

      .LSA-C.C.P. art. 2088 provides:
      “The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal. Thereafter, the trial court has no jurisdiction over these matters except to:
      (1) Allow the taking of a deposition, as provided in Article 1437;
      (2) Extend the return day of the appeal, as provided in Article 2125;
      (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      (6) Grant an appeal to another party; or
      (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal.
      (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code.”

      . LSA-C.C.P. art. 2126 provides:
      “The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day or extended return day, all costs of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal.”

      . October 1, 1975, was a Wednesday, and thus under LSA-C.C.P. art. 1974, allowing seven days exclusive of legal holidays for applying for a new trial, and discounting the intervening Saturday and Sunday, the seventh day was October 9, 1975.


author: MILLER, Judge.

text:
    Raoul BILLEAUD, Plaintiff-Appellant, v. William H. PERRY et al., Defendants-Appellees.
    No. 5677.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 12, 1976.
    J. Minos Simon, Lafayette, for plaintiff-appellant.
    McBride & Brewster by Robert R. McBride, Welton P. Mouton, Jr., Lafayette, for defendant-appellee.
    Before MILLER, WATSON and PETERS, JJ.
   ON MOTION TO DISMISS

MILLER, Judge.

Defendants, William H. Perry, U.S.F. & G., Maryland Casualty Co., and Northern Insurance Company, Inc., move to dismiss the unlodged appeal of the plaintiff, Raoul Billeaud, on the ground that his appeal is premature. The motion is unopposed.

Formal judgment was signed May 20, 1976, and on May 26, 1976, third-party defendant-appellee, Maryland Casualty Company and the intervenor-appellee, Northern Insurance Company, timely filed a Motion for a New Trial and/or Motion to Correct and Amend Judgment. On the same date the motion was filed, the trial court issued an Order to Show Cause to all parties ordering them to appear and show cause on July 19, 1976, why the above motion should not be granted. To date the motion has not been acted upon.

On June 11,1976, plaintiff moved for and obtained an Order for Appeal in forma pau-peris returnable to this court on August 5, 1976. The appeal has not yet been lodged with this court.

Defendants and intervenor moved to dismiss plaintiff’s unlodged appeal on the ground that since a timely motion for a new trial has been filed in this matter, the judgment appealed from is not final, and therefore, plaintiff’s appeal is premature. We agree.

While recognizing that there is authority to the contrary (Thibodeaux v. Lock Clinic, 299 So.2d 574 [La.App. 4 Cir. 1974]; Department of Highways v. D & J Realty Company, Inc., 245 So.2d 465 [La.App. 2 Cir. 1971]), the better rule in the interest of judicial economy and orderly procedures is that the timely filing of a motion for new trial, by one or more of the parties to a lawsuit, holds the previously signed judgment in abeyance until a final judgment decides all issues as to all parties in the suit. LSA-C.C.P. art. 1971, 2164; Simmons v. Beauregard Parish School Board, 293 So.2d 226 (La.App. 3 Cir. 1974).

The appeal is premature and is dismissed. Costs of this appeal will be taxed when the appeal is reviewed by this court.

APPEAL DISMISSED.


author: BERTRAND, Judge.

text:
    Clebert DAUZAT and Glenn Dauzat, Plaintiffs-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5559.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    William Henry Sanders, Jena, and Edward A. Kaplan, Alexandria, for plaintiffs-appellants.
    Allen, Gooch & Bourgeois by St. Paul Bourgeois, IV, Lafayette, and Raggio, Far-rar, Cappel & Chozen by R. W. Farrar, Jr., Lake Charles, for defendants-appellees.'
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

On December 1, 1975, plaintiffs, Clebert Dauzat and his son, Glenn, instituted suit against the Beauregard Memorial Baptist Hospital, Inc.; its insurer, the St. Paul Fire and Marine Insurance Company; Dr. James Sauls, and/or the DeRidder Clinic for breach of an implied contract for the treatment of Glenn’s fractured leg.

An exception of prescription was sustained by the trial court and plaintiffs have appealed. We affirm.

The exception was tried on the deposition of the two plaintiffs. They reveal that Glenn, then 17 years of age, was brought to the Beauregard Memorial Baptist Hospital on August 3, 1973, for treatment of a compound leg fracture sustained in a motorcycle accident. After examining Glenn’s leg and the x-rays thereof which were taken, Dr. Sauls, in response to a question from Clebert Dauzat, said that he could handle it, and that he had handled worse. The leg was swollen and was placed in a splint or open cast by Dr. Sauls. At no time did any member of the hospital staff state that Glenn’s leg would be cured at the hospital.

The testimony further shows that, on August 23, 1973, Glenn was discharged from the hospital and referred to an orthopedic surgeon, Dr. Richard LeBlanc. That same day Dr. LeBlanc apprised Glenn and his mother of the possibility of a tardy transfer. He stated that if he had examined Glenn sooner, he would have placed Glenn in traction. At the time of this visit, Glenn’s leg was approximately two and one half inches shorter than his right leg. Mrs. Dauzat related her conversation with Dr. LeBlanc to her husband that same day. Glenn’s left leg is now deformed and approximately three and one half inches shorter than his right.

The issues before this Court are:

(1) What prescriptive period is applicable in this case; and
(2) When did prescription commence to run.

I APPLICABLE PRESCRIPTIVE PERIOD

The Dauzats urge that the undertaking of medical treatment is an implied contract and that the applicable prescriptive period is ten years. This argument is without merit. In Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963), the Louisiana Supreme Court stated:

“When a physician undertakes the treatment of a case, he does not guarantee a cure, nor is any promise to effect a cure or even a partial healing to be implied, nor does the law raise from the fact of employment an implied undertaking to use ordinary skill and care. For this reason a physician cannot be held up to a standard of civil responsibility similar to that of engineers, mechanics, and shipbuilders. Of course, a physician might contract specifically to cure and he would be liable on his contract for failure, but, in the absence of such a special and peculiar contract, the fact that treatment has resulted unfavorably does not even raise a presumption of want, of proper care, skill, or diligence.”

In Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974), writ denied, this Court followed Phelps and rejected the very same contention advanced by the Dauzats.

No staff member at Beauregard Hospital made a promise to cure Glenn. Both he and his father have admitted to this. Dr. Sauls’ statement that he could handle Glenn’s fractures was not a specific promise to cure. Therefore, plaintiff’s claim may not be brought under the theory of contract. This action is one in tort for medical malpractice. The applicable prescriptive period is one year. La.C.C. Art. 3536; Phelps v. Donaldson, supra; Steel v. Aetna Life & Casualty, supra.

II. TIME OF COMMENCEMENT OF PRESCRIPTIVE PERIOD

In a medical malpractice case prescription begins to run when the plaintiff has actual or constructive knowledge of the alleged tortious act. Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir. 1975).

In Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970), the Louisiana Supreme Court expounded on the doctrine of constructive notice:

“ . . . whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry, is sufficient to start the running of prescription.”

Plaintiffs have the burden of proving lack of knowledge of the inquiry as well as any circumstances which establish that the damage was not sustained within a year of the filing of the suit. Duhon v. Saloom, supra, and the cases therein cited. They have clearly failed to sustain this burden of proof. On August 23,1973, they were made aware of a potential tortious act having occurred when Dr. LeBlanc in effect stated that other treatment should have been given. This conversation took place approximately twenty-eight (28) months before suit was filed. Therefore, the claim prescribed' over sixteen (16) months prior to suit.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Considering our ultimate conclusion that plaintiff’s claim is not in contract we need not consider whether the amendment to LSA-R.S. 9:5628 (Act 808 of 1975) should be applied retroactively.


text:
    Kenneth W. MILLER, Plaintiff-Appellee, v. Nancy Cook MILLER, Defendant-Appellant.
    No. 5579.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.

      John E. Demoruelle, Kinder, for defendant-appellant.
    Perrell Fuselier, Oakdale, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Defendant Nancy Cook Miller appeals the grant of permanent custody of her four year old daughter, Katrina, to the child’s father, plaintiff Kenneth Miller. We affirm.

Kenneth and Nancy were married on April 23,1971; of their union, one child was born. On December 28, 1975, Nancy took her child and abandoned her husband. Kenneth filed suit for separation based on the abandonment, and at a hearing in which he sought custody, he was awarded provisional custody. After trial, Kenneth was awarded the legal separation and in that judgment, he was awarded permanent custody of Katrina.

The appeal presents only one issue: Did the trial court commit manifest error in awarding child custody to the father?

Although there was no finding of unfitness, the decision to deny the mother’s claim for custody was based on her inability or unwillingness to look after her child’s best interest. The mother was emotionally unstable; she exhibited attention-seeking behavior, disorderly housekeeping habits, and an unwillingness to look after her child’s day to day needs. There was substantial evidence in the record to support the trial court’s conclusion that the mother's custody could be detrimental to the child’s healthy growth and development.

The mother planned to care for her child in her father’s home. He was disabled from acute emphysema and could barely walk. There were only two beds in the home and if custody was awarded to the mother, there would be six people living in the home. The mother frankly admitted she was not concerned with keeping her home surroundings clean.

On the other hand, the father presented a workable and desirable plan to care for his daughter. His mother testified she and her husband were anxious to care for her granddaughter and would reside in the father’s well provisioned home. Kenneth is a police officer and was convincing in his testimony that hé has been and will continue to be properly concerned for his child’s welfare.

The essential consideration in custody matters is the child’s welfare and best interest. Nethken v. Nethken, 307 So.2d 563 (La.1975); Berry v. Berry, 307 So.2d 821 (La.App. 3 Cir. 1975); LSA-C.C. art. 157. Although the mother has a preferred right to the custody of children of tender years, the primary, if not the sole concern of the courts is the welfare of the child. Lambert v. Lambert, 286 So.2d 390 (La.App. 1 Cir. 1973). See Comment at 49 Tul.L.Rev. 189 (1974); Note at 34 La.L.Rev. 881 (1974).

In child custody matters, the trial court’s decision is entitled to great weight. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Berry v. Berry, 307 So.2d 821 (La.App. 3 Cir. 1975); Malone v. Malone, 271 So.2d 598 (La.App. 1 Cir. 1972). The trial court is in a better position to evaluate the child’s best interest because of his total overview of the conduct, character of the parties and the child, and of community standards. His discretion on the issue will not be disturbed on review absent a clear showing of abuse. Malone v. Malone, 271 So.2d 598 at 600. See also Nugent v. Nugent, 232 So.2d 521 (La.App. 3 Cir. 1970).

As in Nethken v. Nethken, supra, the trial court determined that the mother’s preference must give way to the paramount right and best interest of the child; in so doing, the trial court did not abuse his discretion by refusing to give an automatic conclusive preference to one parent on the basis of sex.

The trial court judgment is affirmed at appellant’s cost.

AFFIRMED.


author: ROBERTS, Justice. ENGLAND, Justice

text:
    NATIONAL AIRLINES, INC., Petitioner, v. Theodora EDWARDS, a/k/a Teddy Edwards, Respondent.
    No. 46,952.
    Supreme Court of Florida.
    May 12, 1976.
    Mark Hicks, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    Harry S. Raleigh, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for respondent.
   ROBERTS, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Fourth District, in Edwards, etc. v. National Airlines, Inc., reported at 307 So.2d 244 (Fla.App. 4, 1974), which conflicts with Taylor Imported Motors, Inc. v. Smiley, 143 So.2d 66 (Fla.App. 2, 1962), Kwoka v. Campbell, 296 So.2d 629 (Fla.App. 3, 1974), thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Constitution of Florida.

Respondent filed complaint for damages against petitioner wherein she alleged that on July 23, 1971, she purchased a ticket from petitioner at the Fort Lauderdale airport for a flight from Miami to Jacksonville, that on July 24, 1971, the aircraft on which she was a passenger was hijacked to Cuba, that petitioner knew or should have known that unless they exercised extreme care in screening and inspection of their passengers and baggage, that their aircraft may again be hijacked and that petitioner failed to take precautions against the possibility of hijacking. Respondent alleged that as a result of the hijacking, she was exposed to various foods and drink in Cuba, which caused her to become sick and to suffer a long term illness, physical and/or mental disability and loss of earning capacity. This complaint was dismissed on motion of petitioner for failure to state a cause of action without prejudice to respondent’s filing an amended complaint which she did. In her amended complaint, respondent, in addition to the above allegations, alleged that the relationship between respondent and petitioner was that of passenger and carrier; that it is a well-known fact that Cuban food causes gastrointestinal ailments to those not accustomed to its consumption; that because of its relationship with respondent, petitioner had a duty to take extreme precautions to prevent hijacking; that the plane was hijacked by persons using weapons and explosives which could have been discovered by routine inspection; that as a direct and proximate result of respondent’s negligence in failing to provide precautions to guard against the possibility of hijacking, respondent contracted a long term illness resulting in mental and physical disability and loss of wage earning capacity. The second count of the amended complaint alleged breach of contract of carriage in that she entered into a contract of carriage and safe transport with petitioner wherein she agreed to pay for and petitioner agreed to provide safe passage from Miami to Jacksonville and that by reason of the breach she suffered mental and physical disability and loss of wage earning capacity.

Petitioner moved to dismiss the amended complaint for failure to state a cause of action upon which relief could be granted and on the ground that no ultimate facts are alleged, which if proved at the time of trial, would support a jury conclusion that petitioner was guilty of any negligent act or omission or that it breached any contract, resulting in damage to respondent. Petitioner further asserted in his motion to dismiss that under no theory does the law impose upon a common carrier the duty or obligation to protect the passengers from contracting illnesses.

After hearing, the trial judge granted the motion to dismiss and strike and dismissed the cause with prejudice.

Upon appeal, the District Court of Appeal, Fourth District, reversed the order of dismissal and opined:

“By way of paraphrasing, we understand plaintiff to have plead, and assumed the burden of proving that the airline knew or should have known that by reason of its negligence and contractual breach in failing to prevent the hijack, its airplane containing plaintiff would be taken to Cuba and there detained by the Cuban authorities. Further, that the airline knew or should have known that plaintiff, while so detained, would be forced in order to sustain herself to consume dangerous and illness causing food and drink provided by the Cuban government. Finally, that plaintiff did consume such food and drink and thereby became ill by reason of which she seeks money damages.
“It is our opinion that plaintiff’s Complaint was sufficient to state a cause of action and that the claim for damages was not so remote as to render it vulnerable to a motion to dismiss. Whether plaintiff can successfully prove the essentials of her claim, including proximate cause, is, of course, not before us.
“Back to the remoteness question. The general rule is that a person is liable in tort for all the consequences that reasonably and naturally flow or follow from his wrongful act, whether or not these consequences were actually contemplated or foreseen. . . . Further, the intentional acts of third parties are not such supervening, intervening forces as will break the chain of causation when such forces could have been foreseen by the negligent defendant.”

We find that the trial court properly dismissed the complaint and that the damages alleged by respondent to be a result of National’s negligence or contract of carriage were too remote as a matter of law to be recoverable.

In Taylor Imported Motors, Inc. v. Smiley, supra, the District Court of Appeal, Second District, affirmed the dismissal of a complaint for damages on the basis that the damages were not the natural and probable consequences of the tortious act and did not ordinarily and naturally flow from the same; nor were the damages within the reasonable contemplation of the parties. Therein, the District Court quoting with approval the following excerpt from 15 Am.Jur., Damages, Section 66:

“ * * * The damages cannot properly include compensation for injuries which are remote from the wrongful act or which are of an uncertain or a speculative character * * * Remote damages are such as are the unusual and unexpected result, not reasonably to be anticipated from an accidental or unusual combination of circumstances — a result beyond and over which the negligent party has no control.”

held that recoverable damages occasioned by a tort include all damages which are a natural, proximate, probable or direct consequence of the act, but do not include remote consequences. Cf. Peacock Motor Company of Marianna, Inc. v. Eubanks, 145 So.2d 498 (Fla.App. 1, 1962); State ex rel. Peters v. Hendry, et al., 159 Fla. 210, 31 So.2d 254 (1947), and Kwoka v. Campbell, supra.

By respondent’s own admissions, the alleged injuries for which she seeks damages resulted from the active and efficient intervening cause of consumption of food and beverages which were obtained by respondent in Cuba. Cf. Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla.App. 1, 1960), cert. den., 127 So.2d 441 (Fla.1961); General Telephone Co. v. Mahr, 153 So.2d 13 (Fla.App. 2, 1963).

Affirming a summary judgment for the defendants, the District Court of Appeal in Kwoka v. Campbell, supra, opined:

“Appellants suggest that the issue is one of reasonable foreseeability and that only the jury can apply that test. This proposition cannot be true because under it every allegation of a breach of duty no matter how remote from an injury would result in a jury trial. The question of proximate cause is one for the court where there is an active and efficient intervening cause.”

Assuming all the facts alleged in the complaint to be true, the alleged injuries for which damages were claimed and which resulted from the active, efficient, intervening cause of consumption of Cuban food and beverages were too remote to be recoverable, and, accordingly, the complaint was properly dismissed by the trial court as the damages plead were insufficient as a matter of law. Cf. Florida East Coast R. Co. v. Peters, 77 Fla. 411, 83 So. 559 (1919); Tampa Union Terminal Co. v. Richards, 108 Fla. 516, 146 So. 591 (1933); Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306, 104 A.L.R. 216 (1936); Williams v. Atlantic Coast Line R. Co., 56 Fla. 735, 48 So. 209 (1908); Brock v. Gale, 14 Fla. 523 (1874); Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Reprint 145 (1854).

For the foregoing reasons, the decision of the District Court of Appeal is quashed and the cause remanded with directions to reinstate the order of dismissal by the trial court.

It is so ordered.

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

ENGLAND, J., dissents with an opinion, with which OVERTON, C. J., concurs.

OVERTON, C. J., dissents.

ENGLAND, Justice

(dissenting).

Once more I am compelled to register my disagreement with the Court’s determination to accept jurisdiction of a case in which there is no clear conflict of appellate decisions. In this case I happen to concur with the Court’s conclusion concerning the dismissal of respondent’s lawsuit, a matter which is without legal consequence but which makes this case particularly suited to an expression of my opinion on jurisdiction.

We are a court of limited jurisdiction. Article V, § 3(b), Florida Constitution. In this case we were invited to review the district court’s decision on the basis of an asserted “direct conflict” between that decision and those of other Florida appellate courts, under Section 3(b)(3) of Article V. I cannot find the requisite conflict with the decisions on which the Court relies, and as a consequence I must leave uncorrected an error which I perceive in a final judgment of one of our district courts. As difficult as that may be for those of us who possess some color of power to correct that error, I believe the Constitution directs my colleagues and me to keep our opinions to ourselves in the absence of an appropriate jurisdictional ground to voice them.

Apparently mine is a minority view, and a majority of the Court seem inclined to continue “finding” conflict in those district court decisions they do not like. That is their unreviewable prerogative, of course. I can only reiterate the warnings of my predecessors that to do so is at odds with a constitutional scheme which never contemplated that our district courts would be treated as “way stations” in a multiple appellate process. This case aptly demonstrates the majority’s propensity to do just that.

In this case the Court disagrees with the Fourth District Court of Appeal as to whether National Airlines can be taken to trial on the basis of Mrs. Edwards’ complaint. That alone appears to be the majority’s justification for intruding into this lawsuit. The Court does not and could not suggest that the lower court applied the wrong legal principles; nor does it in any way articulate a point of law which has been unclear or in conflict among the district courts. The sole difference between the lower court’s judgment and that of the majority here is whether an application of the legal tests of remoteness and intervening cause require affirmance or rejection of the trial court’s order of dismissal. Based on a particular and unique set of factual allegations, the majority simply disagrees with the district court.

OVERTON, C. J., concurs.

        Lake v. Lake, 103 So.2d 639, 641-642 (Fla.1958); overruled,, Foley v. Weaver Drugs, Inc., 177 So.2d 221 (FIa.1965). See also Gibson v. Maloney, 231 So.2d 823, 826 (Fla.1970) (dissent).


author: SUNDBERG, Justice.

text:
    INTERNATIONAL MINERALS AND CHEMICAL CORPORATION and Agrico Chemical Company, Petitioners, v. William T. MAYO et al., Respondents. MOBIL CHEMICAL COMPANY, Petitioner, v. William T. MAYO et al., Respondents.
    Nos. 47731, 47732.
    Supreme Court of Florida.
    June 4, 1976.

      Wilfred C. Varn, Joseph C. Jacobs, C. Everett Boyd and LeRoy Collins, of Ervin, Varn, Jacobs & Odom, and Kenneth R. Hart and Roy C. Young, of Brown, Smith, Young & Pelham, Tallahassee, for petitioners.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for respondents.
    D. Fred McMullen, Lee L. Willis and James D. Beasley, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Tampa Electric Co.
    Woodie A. Liles, Public Counsel, Lake-land, and Donald W. Weidner, Deputy Public Counsel, Tallahassee, for the Citizens of the State of Florida, intervenors.
   SUNDBERG, Justice.

Tampa Electric Company (TECO) initiated proceedings, Docket No. 74597-EV, before the Public Service Commission (PSC), by filing a petition for rate increases. Public Counsel intervened in the proceedings before the PSC, as did the International Minerals and Chemical Corporation (IMC), Agrico Chemical Company (Agrico) and Mobil Chemical Company (Mobil). The PSC granted TECO’s petition for rate increases in Order No. 6681. IMC, Agrico and Mobil petitioned the PSC for rehearing. Without questioning the propriety of the aggregate increase in TECO’s revenues, they maintained that they and other industrial users similarly situated would be required to pay an unfair share under the new rates. The PSC rejected this contention and denied the petition for rehearing in Order No. 6717.

IMC and Agrico, who are billed by TECO at its “interruptible mining” rate, filed a joint petition for writ of certio-rari in this Court to review the PSC’s orders (Case No. 47,731). Mobil buys some electricity under the “interruptible mining” rate, like IMC and Agrico, but pays for other electricity at TECO’s “interruptible furnace” rate; Mobil filed its own separate petition for writ of certiorari (Case No. 47,732). The petitions were consolidated for argument, and public counsel and TECO have been granted leave to intervene as respondents in proceedings here. We now deny the petitions for writ of certiorari.

The corporate intervenors before the Commission, petitioners here, are phosphate companies. Their operations require large amounts of electricity, but may be shut down on short notice without serious consequences. Because the magnitude of its peak load is an important factor in TECO’s cost of generating electricity, TECO offers a special rate to industrial users like IMC, Agrico and Mobil who agree to fore-go electricity when other users’ consumption is greatest. Under the new rates set by the PSC, interruptible mining customers only pay approximately 55 per cent as much for electricity as residential customers pay.

IMC, Agrico and Mobil complain that the rates they pay are unfairly high, notwithstanding that they are lower than other customers’ rates. The evidence adduced before the PSC tended to show that TECO gets a better return on investment when it sells electricity to petitioners, than when residential and other users buy electricity from TECO. In support of its petition for rate increases, TECO submitted a cost of service study in which it allocated costs among different categories of ratepayers, then calculated rates of return under the increase in revenues it proposed. According to the cost of service study, which assumed the distribution among rate classes that TECO requested, the rate of return on electricity sold at the proposed residential rate would have been 8.13 per cent, as compared to 10.7 per cent for inter-ruptible furnace users, and 15.43 per cent for interruptible mining users. TECO’s over-all return on investment would have been 9.55 per cent.

When the PSC sets electric company rates, it acts pursuant to the authority conferred by Section 366.041(1) Florida Statutes, which provides that the

“Florida Public Service Commission is authorized to give consideration, among other things, to the efficiency, sufficiency, and adequacy of the facilities provided and the services rendered, the value of such service to the public, and the ability of the utility to improve such service and facilities; provided that no public utility shall be denied a reasonable rate of return upon its rate base in any order entered . . . .”

Petitioners’ principal contention is that the PSC erred in fashioning the new rate structure, to the extent that it took into account factors other than “actual differences in the costs of serving the customers.” Brief of Petitioners, p. 34. They maintain that there was no substantial evidence to support application of any rate-making factor other than cost, and that, in any event, the Florida and United States Constitutions, as well as the pertinent regulatory statutes, require the Commission to base rate differentials exclusively on differential costs.

We recently considered a related proposition in Florida Retail Fed’n Inc. v. Mayo, 331 So.2d 308 (Fla.1976). Under review there were certain PSC orders setting telephone rates. The rate schedules were assailed by an association of retail merchants, on the ground that commercial rates were unfairly higher than private rates. The merchants “argued that a rate structure designed without reference to ‘cost of service’ cannot meet the requirement[s] . . . mandated by [Section 364.03, Florida Statutes],” Florida Retail Fed’n, Inc. v. Mayo, supra, 331 So.2d at page 312, which requires that telephone and telegraph rates be “fair, just, reasonable and sufficient.” Section 364.03(1), Florida Statutes (1975). We held that the PSC had not “failed to comply with the requirements of law in rejecting the ‘cost of service’ principle as a necessary criterion in adopting the rate structure.” 331 So.2d at 310. The Florida Retail Federation case establishes that the Public Service Commission has the responsibility and authority to decide whether to give any consideration at all to the relative costs of providing different types of telephone service, when setting differential rates.

In the present case differential costs were taken into consideration when rates were set, but petitioners insist, urging both constitutional and statutory grounds, that differential costs must be the only factor taken into consideration in setting differential rates. After our decision in Florida Retail Fed’n, Inc. v. Mayo, supra, to the effect that the PSC legally is not compelled to apply the “cost of service” criterion, this position is clearly untenable. Although the statutes governing regulation of telephone and telegraph companies are not the same statutes as those providing for the regulation of gas and electricity companies, both chapters contain substantially similar criteria for setting rates.

In Florida Retail Fed’n, Inc. v. Mayo, supra, respondents complained “because the Commission relied merely upon the ‘value of service’ and the relationship of rates” at page 310, while petitioners here complain because the PSC placed reliance upon factors other than differential costs.

Practical considerations also militate against making cost of service the exclusive criterion in rate setting. Virtually every court considering the matter has rejected out of hand a rule that would reduce rate-making to an exercise in cost accounting. E. g., Apartment House Council of Metropolitan Washington, Inc. v. Public Serv. Comm’n, 332 A.2d 53 (D.C.App.1975); Apartment House Council of Metropolitan Washington, Inc. v. Potomac Elec. Power Co., 215 Va. 291, 208 S.E.2d 764 (1974); Globe Metallurgical Div. of Interlake, Inc. v. Public Util. Comm’n, 40 Ohio St.2d 40, 319 N.E.2d 360 (1974). The Globe Metallurgical case is clearly on point and persuasive on the issue before us as framed by the Ohio Supreme Court:

“The question is whether the commission’s company-wide rate increase allowance for Ohio Power is unreasonable or unlawful as applied to the class of in-terruptible power customers.
“Appellants, as users of interruptible power, do not attack the propriety of the over-all rate increase. They contend, however, that the increase, as applied to their classification, is improper . . .” 319 N.E.2d at 361.

That court rejected the interruptible power users’ contention that differential rates must be pegged to differential costs. As noted by the court, the provision of the Ohio Revised Code relating to matters to be considered by the Ohio regulatory authority made no reference to “cost of service” considerations. Similarly, Section 366.041(1), Florida Statutes, makes no such reference.

In New York v. United States, 331 U.S. 284, 67 S.Ct. 1207, 91 L.Ed. 1492 (1947), the majority opinion quoted a commentator who characterized the cost accounting approach as “impossible”:

“Now and then a hardy soul, equipped with simple faith and a calculating machine, essays the adventure of rates based upon the true costs of particular services. The feat is, of course, technically impossible, for value judgments or empirical rules are essential to the distribution of overhead.” 331 U.S. at 335 n. 33, 67 S.Ct. at 1234, 91 L.Ed. at 1529 n. 33.

Under petitioners’ view, exercise of the Commission’s discretion would be limited to deciding whether costs had been allocated in accordance with accepted accounting principles. Section 366.05, Florida Statutes, and like statutory provisions evidence a legislative intent to confer a much broader discretion on the Commission. Factors like those testified to by TECO’s expert, viz., “rate history and experience of the utility, the consumption and load characteristics of the various classes of customers, value of service, public acceptance of rate structures which have been in effect in the past without serious dissatisfaction, and conservation of energy” were all properly considered by the PSC, even though these factors are not specified by statute.

Conceding for purposes of argument that the PSC may lawfully consider factors other than cost of service, petitioners say no evidence was adduced in these proceedings that would justify application of any ratemaking factor other than cost. Extensive expert opinion testimony belies this contention, particularly the testimony of Mr. Campbell, Director of Rates and Research for Tampa Electric Company. One of several specific factors relied on by the Commission and amply developed in this voluminous record is “value of service”, i. e., what electricity is worth to the customer. Witnesses pointed out that large industrial users like petitioners have the possibility of generating their own electricity, and presumably would do so if they could not buy electricity for less than the cost of generating it.

Another specific factor is. the principle of rate continuity. Whatever may be the significance of this principle generally, a very strong case was made in these proceedings for honoring residential consumers’ expectations as to electricity rates. Testimony was adduced to the effect that TECO had taken affirmative steps, mostly by advertising, to encourage residential users to increase their use of, and reliance on, electricity. The new rate structure comes closer than the old rate structure, moreover, to establishing equal rates of return for all rate classes. See State v. Bevis, 283 So.2d 348 (Fla.1973).

Both by statute and its own rules the PSC is required to make findings of fact in rate proceedings. Village of North Palm Beach v. Mason, 167 So.2d 721 (Fla.1964); Central Truck Lines, Inc. v. King, 146 So.2d 370 (Fla. 1962). The Commission made such findings in the present case. The requirement of explicit fact findings makes for more careful consideration by the Commission, helps assure that this Court does not usurp the PSC’s fact finding prerogatives, and otherwise facilitates review of Commission orders by this Court. The more detailed the PSC’s findings of fact are, the more readily these important purposes are served. Although we are constrained to agree with petitioners’ characterization of some of the findings in the present case as “mere conclusions and generalizations,” we reject petitioners’ contention that the fact findings as a whole fail in their intended function.

It was for the agency fact finders to assess the reliability of the testimony and other evidence adduced. On review here, the PSC’s findings of fact will not be disturbed, if those findings are supported by substantial evidence. The evidence need not be such as to compel the result reached by the PSC, so long as it is not so insubstantial that it does not support the result. As we recently said:

“When orders of the Public Service Commission are challenged in this Court as being unsupported by the facts, this Court will uphold the orders even though it differs with the Commission’s view as to the effect of the evidence as a whole, so long as there is competent substantial evidence to support the orders.” [Citations omitted] Chicken ’N’ Things v. Murray, 329 So.2d 302 (Fla.1976).

No question has been raised as to the competency of the opinion testimony or of any of the other evidence relied on by the Commission. Accordingly, we “will not undertake to re-weigh or re-evaluate the evidence presented.” General Telephone Co. v. Carter, 115 So.2d 554, 557 (Fla.1959).

The petitions for writ of certiorari are denied.

ROBERTS, Acting C. J., and ADKINS, BOYD and ENGLAND, JJ., concur.

      . The aggregate increase actually awarded TECO by the PSC was less than the amount requested, but the increase was distributed among rate classes in approximately the same proportions as TECO had suggested.

      . Telegraph and telephone rates “shall be fair, just, reasonable and sufficient,” Fla. Stat. § 364.03(1), and, when rate adjustments are necessary, “the commissioners shall determine the just and reasonable rates.” Fla.Stat. § 364.14(1). Telegraph and telephone companies are forbidden to “give any undue or unreasonable preference or advantage to any person or locality,” Fla.Stat. § 364.10, and, in general, may not charge more for transmitting a message “for a shorter than for a longer distance over the same line, in the same direction, within this state ... or charge any greater compensation for a through service than the aggregate of the intermediate rates.” Fla. Stat. § 364.11. Gas and electric rates must be “fair and reasonable,” Fla.Stat. § 366.03, and, when rate adjustments are necessary because the rates are “unjust, unreasonable, insufficient, or unjustly discriminatory or preferential,” Fla.Stat. § 366.07, “the commission shall have the authority to determine and fix fair, just and reasonable rates.” Fla.Stat. § 366.06(2).

      .§ 4909.15, Ohio Rev.Code, provides that the Ohio Public Utilities Commission shall set rates
      “. . . with due regard among other things, to the value of all property of the public utility actually used and useful for the convenience of the public, excluding from such value the value of any franchise or right to own, operate, or enjoy the same in excess of the amount, exclusive of any tax or annual charge, actually paid to any political subdivision of the state or county, as the consideration for the grant of such franchise or right, and excluding any value added to such property by reason of a monopoly or merger, with due regard to the necessity of making reservation out of the income for surplus, depreciation, and contingencies, and with due regard to all such other matters as are proper, according to the facts in each ease. ...” Although the Ohio statute is more explicit in defining “rate base,” it does not differ substantially from Fla.Stat. § 366.041(1), which is set forth in pertinent part at p. 4.

      . Fla.Stat. § 120.57(1) (b)8 (1975).

      . Fla.Admin.Code, ch. 25-2.116(5).


author: BOYD, Justice.

text:
    Lawrence Rodney McDONNELL, Petitioner, v. STATE of Florida, Respondent.
    No. 45374.
    Supreme Court of Florida.
    March 17, 1976.
    As Modified On Rehearing July 14, 1976.

      Richard L. Jorandby, Public Defender, and Richard G. Lubin, Kenneth Scherer and Martin H. Colin, Asst. Public Defenders, for petitioner.
    Robert L. Shevin, Atty. Gen., and Frank B. Kessler, Asst. Atty. Gen., for respondent.
   BOYD, Justice.

By petition for writ of certiorari, we have for review a decision of the District Court of Appeal, Fourth District, reported at 292 So.2d 420, which allegedly conflicts with Land v. State on the same point of law.

Petitioner (hereinafter referred to as defendant) was charged with forgery. Prior to trial, defendant filed a motion to suppress any oral or written confessions or statements, and immediately attempted to obtain a hearing thereon. In moving to suppress his confession Petitioner relied upon Florida Rule of Criminal Procedure 3.190 (i). There was no available time on the judge’s calendar, so the motion was not heard prior to trial. The case was called to trial, and, after the jury was sworn, defendant requested the court to hear the motion to suppress. The court refused on the ground that counsel should have filed the motion at an earlier date so as to have it heard prior to trial. Thus, the cause proceeded to trial, and defendant’s confession was admitted into evidence over defendant’s objection.

The District Court of Appeal, Fourth District, found that the uncontradicted trial evidence showed that the defendant presented a signed savings account withdrawal slip to the First National Bank of Pompano on an account belonging to Edmond E. Stafford. The signature on the slip did not coincide with the bank’s signature card so the teller sought the advice of a bank vice president. The latter officer discussed the matter with the defendant, who attributed the difference in the signatures to a recent serious illness and hospitalization. When asked for some identification, defendant advised the officer he had none as his wallet was stolen or lost while he was in the hospital. The officer then had the defendant sign another signature card and instructed the teller to honor the withdrawal. Defendant was identified unequivocally by both the teller and officer as the person who had made the withdrawal in question. The owner of the account testified he had never given the defendant permission to make the withdrawal. Other Williams’ rule evidence showed that the defendant had made numerous subsequent similar raids on the same account. While the District Court held that the trial judge erred in refusing to hear the motion to suppress prior to trial, it concluded that from the totality of the evidence, the error was harmless beyond a reasonable doubt, relying on Harrington v. California and Florida’s harmless error statute.

The issue before this Court is whether the erroneous refusal of the trial judge to conduct an evidentiary hearing on a properly filed motion to suppress a confession can be harmless error. We have previously considered this question in Land v. State, supra, and we feel the District Court’s opinion sub judicé construes the harmless error statute in a way that would deny due process of law to the petitioner.

In Land v. State, supra, we held that failure of a trial court to grant the defendant an evidentiary hearing outside of the presence of the jury on a timely motion to suppress a confession allegedly given by the defendant was error of such proportions as to require a new trial. That decision should control in this case.

In Jackson v. Denno the United States Supreme Court held that a separate hearing and ruling on voluntariness of a confession is necessary. The Court said, “It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to admission of the confession to the jury which is adjudicating the guilt or innocence.” The Court held that to deny such hearing would violate the Fourteenth Amendment as to due process of law.

The District Court of Appeal, First District, properly arrived at the conclusions above stated in Allen v. State and Kitchens v. State. In Allen, Judge Carroll stated the essence of the controlling law as follows :

“[T]he precepts of justice under law, we think, can best be observed by awarding a new trial to appellant, with directions to the trial court to hold an evidentiary hearing, either before or during the retrial, in the absence of the jury, as to the issue of the voluntariness of appellant’s confession.”

We reaffirm our holding in Land, supra. Accordingly the decision of the District Court of Appeal, Fourth District, is quashed and the cause remanded for new trial with instruction to hold a separate hearing on the admissibility of the confession prior to admission of the confession to the jury.

It is so ordered.

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

ROBERTS and ADKINS, JJ., dissent.

      . Article Y, Section 3(b)(3), Florida Constitution.

      . 293 So.2d 704 (Fla.1974).

      . Rule 3.190 (i), Rules of Criminal Procedure :
      “(i) Motion to Suppress a Confession or Admissions Illegally Obtained.

      “(1) Grounds. Upon motion of the defendant or upon its own motion, the court shall suppress any confession or admission obtained illegally from the defendant.
      “(2) Time for Filing. The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.
      “(3) Searing. The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.”

        . Williams v. State, 110 So.2d 654 (Fla.1959), cert. den. 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86.

      . 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

      . Section 924.33, Florida Statutes:
      “924.33 When judgment not to he reversed or modified. — No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.”

      . 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205 (1964).

      . 239 So.2d 33 (Fla.App.1970).

      . 240 So.2d 321 (Fla.App.1970).