author: DENNIS, Justice. TATE, Justice MARCUS, Justice

text:
    STATE of Louisiana v. Joseph A. CATANESE.
    No. 62184.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene Bryson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff - relator.
    M. Daniel LaGrone, Jr., Smith & La-Grone, Shreveport, for defendant-respondent.
   DENNIS, Justice.

In this case we are called upon to reconsider this Court’s rule excluding for any purpose evidence of a polygraph examination. Our review convinces us that, at present, such evidence should not be admitted in criminal trials. However, the reasons for the exclusion of polygraph evidence during trial do not militate against its introduction, within the trial judge’s discretion, in a post-trial proceeding such as a hearing on a motion for a new trial.

Defendant, Joseph A. Catanese, is charged by bill of information with armed robbery. Catanese is prepared to admit that shortly after the crime he picked up and gave an automobile ride to the gunman who committed the robbery. However, the defendant seeks to show by his testimony and the results of a polygraph examination that he was unaware of the robbery and innocent of any involvement in the crime.

The state has consistently objected to the introduction of the polygraph evidence at trial, relying on previous decisions of this Court. After Catanese was denied a pretrial hearing on his request to introduce evidence of a proposed polygraph examination during trial, he applied to this Court for relief, and we ordered the trial court to hold an evidentiary hearing. 350 So.2d 677 (La.1977). Following a contradictory hearing, the trial judge concluded that, if the polygraph examination were conducted under safeguards prescribed by the court, the testimony of the polygraph expert explaining the test results would be admissible at trial. The State applied here for supervisory review and we brought the case up to consider whether the trial judge’s ruling should be reversed or the previous decisions of this Court on the subject should be overruled.

Modern polygraph technique employs an apparatus consisting of scientific instruments which measure and record three or more involuntary physiological responses. The typical polygraph instruments in use today record changes in blood pressure, pulse rate, respiration, and “galvanic skin response” which occur while the subject is being asked carefully prepared questions. Before the test the examiner prepares the questions from information supplied to him by an interview with the subject and by other persons familiar with the subject or the particular ease under investigation. The examiner also prepares the subject for the test by explaining to him the theory and measurements involved in the polygraph technique. After the examination the examiner interprets the subject’s physiological responses recorded during the test in conjunction with all other information gathered by the examiner, including his careful observation of the subject before and during the examination. Based upon these interpretations and information, the examiner arrives at an opinion as to whether the subject responded truthfully to questions during the test.

The theory underlying polygraph technique is based on several propositions concerning human psychology and physiology: The autonomic nervous system normally responds involuntarily to stress. An individual who is deceptive when questioned about a meaningful subject will experience stress. The polygraph apparatus is capable of accurately detecting the involuntary responses of the autonomic nervous system which result from stress. If the subject attempts to control his autonomic nervous system, this conscious effort is evident to a competent examiner through observation or analysis.

The first appellate decision on the admissibility of polygraph evidence was Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013 (1923). In that case the defendant offered the testimony of an expert witness regarding the results of a systolic blood pressure deception test which had been performed on the defendant. The court of appeals upheld the exclusion of this testimony in the following language:

“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
“We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” 54 U.S.App.D.C. at 47, 293 F.2d at 1014.

This “general acceptance” test has been rigorously applied by many federal and state courts to exclude evidence of polygraph tests.

In the relatively few cases in which this Court has considered the admissibility of polygraph evidence in criminal trials, the expert’s testimony has been excluded by a rationale similar to the Frye “general acceptance” rule. In State v. Refuge, 270 So.2d 842, 844 (La.1974), for example, this Court noted:

“[T]he universal rule in American jurisdictions is that ... the results of a lie detector test are inadmissible when offered by either party, either as substantive evidence or as relating to the credibility of a party or a witness. The essential reason is the lack of probative value and insufficient scientific reliability, as well as the possible unduly prejudicial effect upon lay triers of fact.”

See also, State v. Whitmore, 353 So.2d 1286 (La.1978); State v. Davis, 351 So.2d 771 (La.1977); State v. Schouest, 351 So.2d 462 (La.1977); State v. Weeks, 345 So.2d 26 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973).

The “general acceptance” standard has been the subject of considerable scholarly criticism in recent years. In particular, it has been suggested that the requirement of “general acceptance” is tantamount to a requirement that the validity of the test be susceptible of such demonstration as to enable the trial court to take judicial notice of the fact. Clearly, the criteria used for determining the admissibility of scientific evidence should not require the instant and unquestionable demonstration required for the judicial notice of scientific facts. Other types of scientific evidence have been admitted into evidence under less stringent standards which, merely require the evidence to be “an aid to the jury” or “reliable enough to be probative.”

Professor McCormick and others have suggested that there should be no special rule for the admissibility of polygraphic evidence. C. McCormick, Evidence, § 203 (2d ed. 1972); Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L.Rev. 385, 395 (1952). Instead, these scholars would submit the evidence in each case to a balancing process. Any relevant conclusions supported by a qualified expert witness would be received unless there were other reasons weighing more heavily in favor of its exclusion. The probative value of the evidence in each case would be balanced against reasons for its exclusion, such as the familiar dangers of prejudicing or misleading the jury and undue consumption of time, to determine the question of admissibility.

Recent jurisprudence has also made significant inroads into the “general acceptance” standard. Many jurisdictions now admit polygraph evidence upon prior stipulation of the parties, and a number of recent cases have stated that polygraph test results would be admissible without stipulation and over objection of opposing counsel under a lesser standard than “general acceptance.”

We agree that the “general acceptance” standard of Frye is an unjustifiable obstacle to the admission of polygraph test results. In the present case defendant’s expert witnesses testified that the modern polygraph examination achieves a high degree of accuracy when conducted by well qualified examiners under proper test conditions. The trial court record supports much of the literature which we have examined that is critical of the restrictive “general acceptance” standard and urges a meaningful reexamination of the admissibility of polygraph evidence. Since Frye was decided in 1923, law enforcement agencies and private industry have come to rely heavily on polygraph examinations for investigation of misconduct and for employment screening; a national association of examiners, the American Polygraph Association, has been established for the purpose of formulating qualifications and ethical standards for polygraph examiners; and many states have enacted statutes for regulating and licensing examiners. Although the validity of the polygraph technique is not universally accepted within the scientific community, it appears that polygraph evidence when obtained under proper safeguards is as reliable as other kinds of scientific evidence accepted routinely by courts.

Nevertheless, after considering the evidence in the instant case and studying the authorities and extensive literature in the field, we conclude that it shall be the judicial policy of Louisiana to exclude polygraph evidence in criminal trials at this time. In doing so, we do not rely upon the “general acceptance” standard which has barred admissibility in the past. Instead, we reach this conclusion after carefully considering the arguments for and against the introduction of polygraph evidence. We recognize the high probative value of polygraph evidence when obtained under optimal conditions. However, after engaging in a balancing process at the appellate level similar to that recommended by McCormick and other writers, we conclude that at present in our court system the probative value is so outweighed by the reasons for its exclusion that the evidence should not be admitted in criminal trials.

The principal reasons for exclusion are interrelated: (1) Our fundamental concern is that the trier of fact is apt to give almost conclusive weight to the polygraph expert’s opinion. Many decisions in other jurisdictions seem to rest upon a judicial estimate of the tremendous weight which a polygraph test would have in the minds of a jury. See, e. g., United States v. Alexander, 526 F.2d 161, 168-170 (8th Cir. 1975); People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977); People v. Leone, 25 N.Y.2d 511, 307 N.Y.S.2d 430, 255 N.E.2d 696 (1969); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); State v. Smith, 113 Ohio App. 461, 178 N.E.2d 605 (1960). Our own appellate experience with P.E.I. tests and other scientific evidence reflects a concern over the apparent readiness of both juries and trial judges to accept such evidence uncritically. See, State v. Graham, 360 So.2d 853 (La.1978); State v. Monroe, 345 So.2d 1185 (La.1977); State v. Jones, 316 So.2d 100 (La.1975). (2) Because of the potentially decisive character of polygraph evidence, we are equally concerned about the quality of such evidence available in Louisiana. The polygraph technique is capable of a high degree of accuracy only when conducted under controlled conditions by an examiner who is highly qualified by his ability, experience, education a. id integrity. At present Louisiana has no law providing for the licensing, regulating and disciplining of polygraph operators. Although this Court could adopt rules establishing minimum qualifications for expert polygraph witnesses, it could not effectively regulate or discipline them. The record in the instant case does not reflect the number of examiners available in Louisiana or the extent of their qualifications. If polygraph evidence were admissible in criminal trials, highly qualified experts might not be readily available to both defense and prosecution in every case. Thus, introduction of polygraph evidence in criminal trials would entrust key participation in the fact-finding process to persons not presently subject to effective judicial, legislative or adversary control. (3) Even if litigants were afforded an adequate supply of highly qualified experts, extensive procedural safeguards should be established either by court rule or legislation before the introduction of polygraph tests at trial. Otherwise, there is apt to be either an inadequate check upon the quality of the evidence or an undue consumption of time involved in its introduction. Clarification is needed as to the nature of polygraph evidence and the purposes for which it may be introduced, as well as a determination of the type and number of witnesses whose tests may be considered in a criminal case. In our judgment there has not yet been enough judicial experience with polygraph evidence in Louisiana to provide an adequate basis for judicial rule making on this scale.

The reasons for the exclusion of polygraph evidence from criminal trials do not necessarily prevent its use in all criminal proceedings. The polygraph technique has advanced to the point that it could be extremely valuable in criminal proceedings provided its admissibility is carefully limited to specific circumstances designed to insure the validity of the evidence and the proper administration of criminal justice. See, Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120, 124 (1974). A number of courts have attempted to avoid the problems inherent in the use of polygraph evidence by limiting its admissibility to certain types of proceedings. The Michigan Supreme Court held that polygraph evidence, while inadmissible at trial, would be admitted in a hearing upon a motion for a new trial. People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977). Polygraph test results have been admitted into evidence in a number of preliminary and post-trial criminal proceedings. See, State v. Jones, 110 Ariz. 546, 521 P.2d 978 (1974); State v. Watson, 115 N.J.Super. 213, 278 A.2d 543 (1971) (sentencing hearing); People v. Gerry, Cal.Super.Ct. (February 27, 1975) (discussed in N. Ansley, Admissibility of Polygraph Evidence in Criminal and Civil Cases (1978)) (probation hearing); People v. Cutler, No. A176965 (Super.Ct. Los Angeles County, Cal., November 6, 1972), 12 Crim.L.Rptr. 2133 (1972) (motion to suppress). See also, United States v. Ridling, 350 F.Supp. 90 (D.C.Mich.1972), in which admissibility of polygraph evidence was limited to perjury trials.

Although we conclude that polygraph evidence is inadmissible in criminal trials, the reasons for our decision do not prevent its introduction in post trial proceedings, within judicial discretion and subject to guidelines such' as those laid down by the trial judge in the instant case. Because the defendant’s guilt or innocence is not at issue in such proceedings, there is less demand for the rigorous guarantees of accuracy which typify the rules governing introduction of evidence at trial. Consequently, the reasons for excluding polygraph evidence in criminal trials are not necessarily compelling in post trial proceedings. This avenue of admissibility, therefore, should be open, within the discretion of the trial judge, whenever the evidence is reliable and will aid in a decision. Moreover, the experience gained in this way will perhaps facilitate a more informed conclusion on the question of admissibility of polygraph results in criminal trials.

The capable trial judge in the instant case is to be commended for his very responsible approach toward solving a difficult problem. Had the question arisen in connection with a post trial proceeding we would not hesitate to affirm his decision. However, for the reasons assigned we have concluded that at this time the probative value of polygraph evidence in criminal trials generally is outweighed too heavily by its accompanying dangers. The judgment of the trial court declaring the proposed polygraph evidence admissible is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SUMMERS, C. J., I agree with the reversal of the ruling of the trial judge, otherwise, I dissent.

TATE, J., assigns, reasons, concurring in part, dissenting in part.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., not participating.

TATE, Justice

(concurring in part, dissenting in part).

The majority’s scholarly and comprehensive opinion has held that polygraph examinations should not be admissible in criminal jury trials. Under current conditions, it is difficult to disagree with this conclusion.

The unexpressed major premise for the result is that — whatever the reliability of such scientific evidence under controlled conditions in affording polygraph tests— they are subject to abuse in criminal jury trials, because of the undue weight we Americans tend to give to “scientific” demonstrations of supposed objectivity, and because, in the present state of the administration of criminal justice, the use of such polygraph tests is subject to great abuse and is without adequate protection for the criminally accused as to the test being conducted in a truly reliable manner.

Nevertheless, I respectfully suggest that these considerations, however much they suggest the need for protective judicial mechanisms in the use of polygraph examinations, do not themselves furnish an adequate reason why the courts should reject the use of the results of the polygraph examination as in principle inadmissible because of their unreliability. Their widespread use in industry and in government are indicative that, although their use may be distasteful, their reliability is not. The courts should not refuse the admission of this type of evidence on the non-existent basis of its unreliability, when the real reason is our failure as yet to devise adequate protective mechanisms to assure the reliability and fairness of the testing conducted insofar as its being used in jury trials in criminal courts.

The chief difference in the viewpoint thus expressed is that I would not adopt any per se rule of inadmissibility of a polygraph examination (based on their supposed unreliability) although I might suggest very strict safeguards, including adequate coun-selled consent of an accused and strict monitoring of the conditions of the test, before it could be used. Especially in jury trials, it would seem to me appropriate to apply these safeguards strictly and also to weigh whether the probative value of the test was appropriate as to a particular issue (e. g., one-on-one contradictions), so as to outweigh the possible jury prejudice involved in the use of this type of evidence.

Further, it seems to me that unquestionably polygraph tests would be admissible in pre-trial proceedings (as well as post-trial, as suggested by the majority). For instance, too often in motion to suppress situations we have a direct contradiction between the testimony of the accused and the testimony of the searching and arresting officer, which swearing matches to my mind might be more satisfactorily resolved with the aid of polygraph examinations than by judgment calls as to which of two apparently equally credible versions is true.

Furthermore, once we lay aside the unreliability rationale, there seems to be absolutely no sensible reason to exclude the results of polygraph tests conducted under reliable circumstances, with the stipulation of both the state and the defendant that the results of the test can be admitted in evidence on the trial on the merits.

Finally, we may fear state abuse, if polygraph examinations became a customary method of police interrogation (just as pre-Miranda police interrogation, with inadequate safeguards to the accused, often led to unreliable confessions, in the place of adequate investigation through interrogation of other witnesses and collection of objective evidence). Whatever the merit of such fears, I am concerned that a per se rule prevents the accused from using a reliable source of evidence which may prove his innocence. If the use of polygraph data is found to be sufficiently reliable in so many of the other social institutions of our society, the courts should not bar their doors, for essentially arbitrary reasons, to the use by an accused of a form of evidence of a great degree of reliability (if the testing is conducted under properly controlled conditions).

MARCUS, Justice

(concurring).

I concur in the adherence to the well-settled jurisprudence of this state holding that the results of the polygraph examination are inadmissible as evidence in criminal prosecutions. State v. Schouest, 351 So.2d 462 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973). This would include, in my opinion, introduction of said evidence in “post-trial proceedings.” I therefore disagree with the majority’s statement that polygraph evidence may be introduced in post-trial proceedings, within the discretion and subject to guidelines such as those laid down by the trial judge in the instant case. Since this case has not yet been tried, this issue is not before us at this time. Accordingly, I concur in the decree.

      .In his opinion authorizing the defendant to lay a foundation for the introduction of the results of a polygraph examination, the trial judge ruled as follows:
      “We, therefore, establish the following eleven points as necessary prerequisites for a sufficient foundation to allow the result of the polygraph examination in this case into evidence:
      I. A competent examiner. Obviously, this is the heart of the examination. We believe the examiner should be trained to use and analyze the results of a polygraph; that he be current in the field; that he have a baccalaureate degree or the judge be satisfied that he has equivalent experience and literacy, a working knowledge of psychology; at least two years experience in administering tests with the device, the ability to recognize a defective machine, and, furthermore, that his integrity be above reproach. While we would exercise extreme care in this area, surely these standards are no more than we would want from an expert in any field.
      II. A calibrated machine.

      III. A subject relaxed to the extent that the test is valid. Unfortunately, this phrase seems to fall back upon itself for a definition. We must simply be convinced that the subject was sufficiently still and relaxed under the stress of the examination to allow definitive reactions.
      IV. A competent pre-test interview. Emphasis must be on the individual’s current medical circumstances to include the psychiatric with no real problems indicated as well as a full explanation of the machine, its functions, and a review of the questions to be asked.
      V. A meaningful area of inquiry involved. The subject matter must be significant to the person examined.
      VI. One question, at least, that threatens the well-being of the subject and precludes the rationalization of the answer. The questions going to the heart of the matter must be worded in such a way as to eliminate possible rationalization by the subject.
      VII. At least one control question in the technique. A question establishing a significant reaction level.
      VIII. Short Answers, (preferably ‘yes’ or ‘no’).
      IX. A low-key, quiet approach by the examiner throughout.
      X. At least two charts with proper labeling and responses to include technical notations as to machine settings, devices used, locations of devices on the subject, identity of the point of question on the chart and point of response. Significant proper attempts to resolve apparent positive responses to meaningful questions are necessary. These responses are to be valid throughout. There can be no unresolved responses to the question such that one question has received a positive reaction on two occasions, but not on two others; or positive on three and negative on two, etc. As the witnesses explained, where there is an indication of response to a question on the first occasion, then a second chart is essential to be certain that a response to that question is received on the second occasion. If no response is received on the second chart, then the question is asked a third time. If no response is received again, then the question is determined to be without response. If response is received on this occasion, then proper attempts to resolve the response are to be made and the question asked still again. Thus, it must be apparent from the charts that there is no unresolved area of inquiry, such that the number of responses and non-responses to the same question are not of the same general frequency. However, a positive and then two consecutive negatives are considered negative and vice versa.

        XI.The charts made available to the other side sufficiently in advance of the trial Obviously, this for analysis by any experts they may wish, who may testify if they can be qualified under Point I. Also, we would allow the other side to request a psychiatric evaluation of the testee if they can lay a sufficient foundation to indicate the potentiality that the test was influenced by the testee’s mental condition or state of mind, either willfully or inadvertently. As previously discussed, we believe there are slim possibilities in this regard, and we would be critical in evaluating a motion to test the subject.
      “We believe that if these criteria are met before the admission of the polygraph examination, the test will have sufficient probative value and be sufficiently valid to assist us or whoever may be trial judge in this cause in the resolution of the issues. Of course, we have the responsibility to evaluate the test in the same fashion that we would evaluate any other scientific evidence, including the strength of the responses and the competence of the examiner as compared with the other evidence in the case.”

      . A. Moenssens, R. Moses, & F. Inbau, Scientific Evidence in Criminal Cases, 539-564 (1973); J. Reid & F. Inbau, Truth & Deception (2d ed. 1977) [hereinafter cited as Truth & Deception]; Abrams, Polygraphy Today, 3 J.Crim.Def. 85, 97-98 (1977); Axelrod, The Use of Lie Detectors by Criminal Defense Attorneys, 3 J.Crim. Def. 107, 113-123 (1977).

      . “Galvanic skin response” is the reduction in resistance to electricity related to an increase in perspiration. This response is measured by electrodes attached to two of the subject’s fingers. For a discussion of the “galvanic skin response” and charts demonstrating its use, see Truth & Deception, supra, note 2, at 275-292.
      In addition to the four involuntary responses listed in the text, some polygraph apparatus in use today also measure muscular movements in the arm and subtle variations in the heart beat. For a discussion of these and other recent developments in polygraph instrumentation and technique, see articles collected in Legal Admissibility of the Polygraph, 257-288 (ed. N. Ansley 1975).

      . The subject is asked a series of irrelevant questions, “control” questions, and relevant questions. The irrelevant questions are asked to obtain a “baseline” reading and to neutralize a response before proceeding to a relevant question. The control questions generally ask the subject if he has ever performed a related, but much less serious offense. (For example, a subject accused of robbery may be asked if he has ever stolen anything. The subject is expected to give an untruthful or evasive answer to the control questions. This aids the examiner in determining that the individual is a proper subject for testing, and additionally provides a gauge for measuring the subject’s response to the relevant questions. The relevant questions concern the real issue under investigation. They express the accusation itself.
      The irrelevant, control, and relevant questions are carefully arranged in a series of no more than about ten questions. All questions are precisely drafted so that the response sought can not be misinterpreted or misconstrued by the subject, and the questions are formulated to require a short answer so that the subject’s breathing pattern will not be affected by speech. The questions are delivered in an unemotional monotone so as not to influence the subject’s response. The prepared list of questions is read to the defendant in the same order at least twice.
      The preparation and use of test questions is discussed in Truth & Deception, supra, note 2, at 24-32; A. Moenssens, R. Moses, & F. Inbau, Scientific Evidence in Criminal Cases, 543-551 (1975); Abrams, Polygraphy Today, 3 J.Crim. Def. 85, 97-104 (1977).

      .While the opinion of the examiner is based on the objective readings of the polygraph apparatus, we recognize that the examiner is inevitably influenced by subjective factors. See, e. g., Axelrod, The Use of Lie Detectors by Criminal Defense Attorneys, 3 J.Crim.Def. 107, 115 (1977):
      “The purpose of administering a lie detector test is for the operator to come to a conclusion that the subject either is or is not lying when claiming not to have committed the crime of which he is accused. The conclusion is not wholly based on the measured and recorded physiological variations, but includes the operator’s subjective interpretation of the subject’s attitude toward the examination in general and to particular questions. Although Reid instructs the operator to be noncommittal and completely objective throughout the entire examination, he indicates at almost every point what a ‘lying’ subject (as opposed to a ‘truthful’ one) is supposed to do or say.”

      . For a more complete statement of the theory upon which polygraph is based, see, R. Ferguson & A. Miller, The Polygraph in Court, 143-318 (1973); Abrams, Polygraphy Today, 3 J.Crim.Def. 85, 97-98 (1977); Axelrod, The Use of Lie Detectors by Criminal Defense Attorneys, 3 J.Crim.Def. 107, 109-137 (1977); Tar-low, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 2 Hastings L.J. 917, 921-22 (1975) [hereinafter cited as Tarlow],
      Polygraph theory recognizes that there is no physiological response to deception per se. Rather, it is believed that certain physiological responses are indicative of the stress which accompanies the attempt to deceive. See, Note, The Emergence of the Polygraph at Trial, 73 Col.L.Rev. 1120, 1137 (1973).

      . See, e. g., United States v. Salazar-Gaeta, 447 F.2d 468 (9th Cir. 1971); United States v. Rodgers, 419 F.2d 1315 (10th Cir. 1969); United States v. Tremont, 351 F.2d 144 (6th Cir. 1965); Tyler v. United States, 90 U.S.App.D.C. 2, 193 F.2d 24 (1952); People v. York, 174 Cal.App.2d 305, 344 P.2d 811 (1959); People v. Becker, 300 Mich. 562, 2 N.W.2d 503 (1942); Hawkins v. State, 222 Miss. 753, 77 So.2d 263 (1955); Commonwealth ex rel. Hunter v. Banmiller, 194 Pa.Super. 448, 169 A.2d 347 (1961); Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880 (1958).

      . See, e. g., Truth & Deception, supra, note 2, at 310-321; Moenssens, Polygraph Test Results Meet Standards for Admissibility as Evidence, in Legal Admissibility of the Polygraph, 14 (N. Ansley ed. 1975); J. Strong, Questions

        Affecting the Admissibility of Scientific Evidence, 1970 U.Ill.L.F. 1, 9-14; Tarlow, supra, note 6, at 937-946; Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L. Rev. 385, 395-98 (1952); Comment, The Emergence of the Polygraph at Trial, 73 Col.L.Rev. 1120, 1136-1141 (1973); Comment, How Some Courts Have Learned to Stop Worrying and Love the Polygraph, 5 N.C.L.Rev. 900, 903-906 (1973); Note, 2 Det.Col.L.Rev. 347 (1978); Note, 48 N.Y.U.L.Rev. 339, 341-45 (1973); See also, discussion and authorities cited in United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972); United States v. DeBetham, 348 F.Supp. 1377 (S.D.Cal.1972); People v. Barbara, 400 Mich. 352, 255 N.W.2d 171, 182 (1977).

      . See, C. McCormick, Evidence, § 203, p. 491 (2d ed. 1972); Kaplan, The Lie Detector: An Analysis of its Place in the Law of Evidence, 10 Wayne L.Rev. 381, 386 (1964); Strong, Questions Affecting the Admissibility of Scientific Evidence, 1970 U.Ill.L.F. 1, 9-14 (1970).

      . See, Burns, Why is the Polygraph Discriminated Against by Courts, in Legal Admissibility of the Polygraph, 22 (N. Ansley ed. 1975). Several courts have recently rejected the “general acceptance” standard as a criteria for the admission of spectrographic voiceprint evidence. United States v. Williams, 583 F.2d 1194 (2d Cir. 1978); State v. Williams, 388 A.2d 500 (Me.1978).

      . However, McCormick recognizes that, among the weaknesses of our judicial process in the area of scientific proof, are (1) the selection of experts by the parties, so that the experts chosen are often biased and are sometimes not highly qualified, and (2) the difficulty for the jury of deciding between experts who disagree. C. McCormick, Evidence, § 203, p. 491 (2d ed. 1972).

      .The leading case on stipulations for the admission of polygraph evidence is State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962). Admission by stipulation is now permitted in many federal and state jurisdictions. See, e. g., United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976); Corbett v. State, 584 P.2d 704 (Nev.1978); Robinson v. Wilson, 44 Cal.App.3d 92, 118 Cal.Rptr. 569 (1974); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); State v. Ghan, 558 S.W.2d 304 (Mo.App.1977); State v. Towns, 35 Ohio App.2d 237, 301 N.E.2d 700 (1978); State v. Bennett, 17 Or.App. 197, 521 P.2d 31 (1974); State v. Ross, 7 Wash. App. 62, 497 P.2d 1343 (1972); Cullin v. State, 565 P.2d 445 (Wyo.1977). Other states, including Louisiana, have continued to exclude poly-, graph evidence even upon stipulation. See, e. g., Pulakis v. State, 476 P.2d 474 (Alaska 1970); State v. Corbin, 285 So.2d 234 (La.1973); People v. Liddell, 63 Mich.App. 491, 234 N.W.2d 669 (1975); Fulton v. State, 541 P.2d 871 (Okl.Cr.1975); Lewis v. State, 500 S.W.2d 167 (Tex.Cr.App.1973).
      Those jurisdictions which admit polygraph evidence by stipulation reason that if a defendant agrees to the admission of polygraph test results then he should not be able to object if the subsequent results turn out to be unfavorable to him. Nevertheless, the trial judge is usually given the power to disallow all polygraph testimony regardless of the stipulation if he is not satisfied that the test results are reliable. See, e. g., State v. Valdez, supra.

      Admission by stipulation has, however, been criticized. See, e. g., Tarlow, supra, note 6, at 953-56; Note, The Polygraphic Technique: A Selective Analysis, 20 Drake L.Rev. 330, 340-43 (1971). It has been suggested that it is illogical to deny admissibility on the ground that the evidence is unreliable and then admit the same testimony by stipulation.

      . Several courts have held polygraph test results admissible in criminal trials over objection of opposing counsel and without prior stipulation. United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972) (polygraph test results held admissible in perjury conviction provided that defendant submit to additional tests performed by expert selected by the court and provided that the trial judge could exclude all polygraph evidence in his discretion if the tests proved inconclusive); United States v. Zeiger, 350 F.Supp. 685 (D.D.C.) rev’d 155 U.S.App.D.C. 11, 475 F.2d 1280 (1972) (trial court found that polygraph test results had gained “general acceptance” within the field of polygraphy and that polygraph test results were admissible to assess the truthfulness of the defendant’s answers to specific factual questions); State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975) (state supreme court held that polygraph test results would be admissible when the trial court has evidence to support the expertise of the operator, the testing procedure, and the tests made on the subject). Other decisions have noted that polygraph evidence would be admissible upon a proper foundation. See, e. g., United States v. DeBetham, 348 F.Supp. 1377 (S.D.Cal.), aff’d 470 F.2d 1367 (9th Cir. 1972); United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969); Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974).

      . Defendant’s expert witnesses testified that the modern polygraph examination achieves a high degree of accuracy when conducted by well qualified examiners under proper test conditions. However, there is an obvious weakness inherent in any attempt to determine the validity of examinations given in the context of actual criminal investigations, i. e., it is almost always impossible to verify the test results. See, Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694, 704 (1961). Moreover, research conducted in a laboratory is not a satisfactory substitute because it is difficult to arouse the emotional state necessary for a successful examination. Nevertheless, tests conducted in recent years have established that 90-95% of the test results were shown to have been accurate. See, e. g., Truth & Deception, supra, note 4, at 389-406 (four well-documented studies conducted by expert polygraph examiners). A review of earlier polygraph studies is found in Levitt, Scientific Evaluation of the Lie Detector, 40 Iowa L.Rev. 440 (1955). See also, Adams, Polygraphy Today, 3 J.Crim.Def. 85, 89-92 (1977); Barland, The Reliability of Polygraph Chart Evaluations, in Legal Admissibility of the Polygraph (N. Ansley ed. 1975); Tarlow, supra, note 6, at 927-934; Comment, The Emergence of the Polygraph at Trial, 73 Col.L.Rev. 1120, 1122-24 (1973). See also, United States v. Zeiger, supra.

      . See, e. g., Truth & Deception, supra, note 4, at 296-303; Note, The Poiygraphic Technique: A Selective Analysis, 20 Drake L.Rev. 330, 343-45 (1971). Several courts have acknowledged the importance of polygraphy as an investigative tool. See, e. g., Henderson v. State, 94 Okl.Cr. 45, 54, 230 P.2d 495, 504, cert. denied, 342 U.S. 898, 72 S.Ct. 234, 96 L.Ed. 673 (1955).

      . The American Polygraph Association promulgates a “Code of Ethics” and “Standards and Principles of Practice” for examiners. These guidelines are reprinted in N. Ans-ley, Admissibility of Polygraph Evidence in Criminal and Civil Cases, 14-16 (1978).

      . See, Romig, Status of State Polygraph Legislation in July, 1972, in Legal Admissibility of the Polygraph (N. Ansley ed. 1975); Tarlow, supra, note 6, at 969-974. The following statutes have enacted legislation regulating polygraph examiners:

        Arkansas (Ark.Stat.Ann. §§ 71-2201 to 2225 (Supp. 1973)), Florida (Fla.Stat.Ann. §§ 493^0-56 (1974-75 Supp.)), Georgia (Ga.Code Ann. §§ 84-5001 to 5016 (1970)), Illinois (Ill.Stat. Ann. ch. 38, §§ 201-1 to 30 (1973)), Kentucky (Ky.Rev.Stat.Ann. §§ 329.010-.990 (1972)), Mississippi (Miss.Code Ann. §§ 73-29-1 to -47 (1972)), Nevada (Nev.Rev.Stat. §§ 648.005-.210 (1973)), New Mexico (N.M.Stat. §§ 67-31A-1 to -11 (2d Repl.Vol. 10 1974)), North Dakota (N.D.Cent.Code §§ 43-31-01 to -17 (Supp. 1973)), Texas (Tex.Civ.Stat. art. 4413 (29cc) (1974-75 Supp.)), and Virginia (Va.Code §§ 54-729.01-.018 (1974 Repl.Vol. 7A)).

      . See, e. g., The Use of Polygraphs and Similar Devices by Federal Agencies: Hearings Before a Subcommittee of the House Committee on Government Operations, 93rd Cong., 2d Sess. 434-466 (1974); Abbell, Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials, 15 Amer.Crim.L.Rev. 29 (1977).

      . We recognize that a persuasive argument for admissibility could be made on the ground that traditional and fundamental standards of due process require that an accused person be permitted to present witnesses in his own behalf and otherwise make out his defense to the state’s charges. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We believe, however, that the policy reasons for excluding polygraph evidence in the present case are more compelling than the evidentiary rules relied upon by the state courts in Chambers. The Supreme Court in Chambers recognized that the defendant’s fundamental right to present evidence in his own defense “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. 410 U.S. at 302, 93 S.Ct. at 1049, 35 L.Ed.2d at 313. We believe that the eviden-tiary rule excluding polygraph testimony in this case is validly designed to assure these goals.

        . See, Abbel, Polygraph Evidence: The Case Against Admissibility in Federal Trials, 15 Amer.Crim.L.Rev. 29, 53 (1977) (“[T]he use of the polygraph machine lends an illusory aura of objectivity and accuracy which is likely to mislead jurors into giving undue weight to polygraph examinations.”); Highleyman, The Deceptive Certainty of the Lie Detector, 10 Hastings L.J. 47 (1958); Kaplan, The Lie Detector: An Analysis of its Place in the Law of Evidence, 10 Wayne L.Rev. 381, 386 (1964); Ra-deck, The Admissibility of Polygraph Results in Criminal Trials: A Case for the Status Quo, 3 Loyola U.L.J. (Chic.) 289, 300-302 (1972). But see, Tarlow, supra, note 6, at 967-69.

      . As stated in Truth & Deception, supra, note 2, at 5:
      “The most important factor involved in the use of any such instrument is the ability, experience, education, and integrity of the examiner himself.”

        See also, Tarlow, supra, note 6, at 965-66; Comment, The Polygraph Revisited: An Argument for Admissibility, 4 Suff.L.Rev. Ill, 119-120 (1969). This reliance has often been noted by courts considering the admissibility of polygraph evidence. See, e. g., United States v. Wilson, 361 F.Supp. 510, 512-13 (D.Md.1973); Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120, 124-25 (1974).


source: Caselaw Access Project

author:
MARCUS, Justice.
     DIXON, Justice

license: Public Domain

text:
    Frank J. HALL et al. v. ARKANSAS-LOUISIANA GAS COMPANY.
    No. 62560.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Marlin Risinger, Jr., W. Michael Adams, Robert Roberts, Jr., Blanchard, Walker, O’Quin & Roberts, Shreveport, for defendant-respondent.
    James Fleet Howell, Weiner, Weiss, Madison & Howell, Shreveport, for plaintiffs-applicants.
   MARCUS, Justice.

Plaintiffs, royalty interest owners, working interest owners, overriding royalty interest owners and unleased mineral interest owners, instituted this suit against Arkansas-Louisiana Gas Company to recover damages arising from an alleged breach of a gas purchase contract.

Plaintiffs, in their original and amended and supplemental petitions, alleged that on January 11, 1952, they, or their respective ancestors in title, entered into a gas purchase agreement with defendant wherein plaintiffs agreed to sell to defendant their natural gas, and the natural gas owned by their respective lessors, produced from certain described lands in the Sligo Gas Field, Bossier Parish, Louisiana. This agreement, by its terms, was to continue in effect from January 11, 1952, through June 1, 1980. Under the terms and provisions of this agreement, defendant was to pay a fixed schedule of prices for the natural gas delivered to it from plaintiffs. This agreement also contained a price adjustment provision, commonly referred to as a favored nations clause, which provided in pertinent part:

If at any time during the term of this agreement Buyer should purchase from another party seller gas produced from the subject wells or any other well or wells located in the Sligo Gas Field at a higher price than is provided to be paid for gas delivered under this agreement, then in such event the price to be paid for gas thereafter delivered hereunder shall be increased by an amount equal to the differences between the price provisions hereof and the concurrently effective higher price provisions of such subsequent contract. . . . It is agreed that any such higher price for gas delivered hereunder shall be effective on the first day of Buyer’s accounting month (as elsewhere herein defined) next following the effective date of such subsequent contract, all subject, however, to any rules and regulations of the Office of Price Stabilization or any other regulatory body having jurisdiction.

Plaintiffs alleged that since January 11, 1952, they and their respective lessors, have sold substantial quantities of natural gas produced from wells in the Sligo Gas Field to defendant at the prices stipulated in the fixed schedule of prices as contained in the agreement. Plaintiffs further alleged that from September 1961 until the date of the institution of this action, defendant purchased from another party seller (the United States government) natural gas produced from wells located in the Sligo Gas Field at a higher price (including prices paid for both the residue or dry gas and the liquid hydrocarbons or plant products extracted from the United States government’s gas delivered to defendant’s pipeline system) than it was paying to plaintiffs pursuant to the January 11, 1952 gas purchase agreement for plaintiff’s dry or residue gas and liquid hydrocarbons or plant products extracted from plaintiff’s gas and delivered into defendant’s pipeline system. By paying a higher price to another party seller for natural gas produced from wells in the Sligo Gas Field, plaintiffs contended that defendant activated the provisions of the favored nations clause and legally obligated itself to advise plaintiffs of these facts and pay plaintiffs the higher price being paid to another party seller (the United States government) for natural gas produced from wells in the Sligo Gas Field. Plaintiffs contended that they were entitled to such higher price from the first time defendant paid such higher price to another party seller. Plaintiffs averred that defendant had at no time during the existence of the January 11,1952 agreement informed plaintiffs, or any of their representatives, of the fact that it had been paying a higher price to another party seller for natural gas produced from wells in the Sligo Gas Field. Plaintiffs thus argued that defendant had breached the favored nations clause of their agreement by failing to pay plaintiffs a price equal to the highest price paid by defendant to any other party seller for natural gas produced from wells in the Sligo Gas Field. Plaintiffs sought damages equal to the difference between the price paid to them and the highest price paid by defendant to any other party seller for such natural gas during the period of time that defendant purchased natural gas from the United States government.

In its answer, defendant admitted that it purchased substantial quantities of natural gas from plaintiffs pursuant to the January 11, 1952 gas purchase agreement. Defendant, however, averred that it had not at any time paid anyone a price higher than that paid plaintiffs for natural gas purchased from the Sligo Gas Field and it specifically denied that it was purchasing any natural gas produced from the Sligo Gas Field from the United States government. Further answering the petition, defendant alleged that the only contract between it and the United States government relating to the production of natural gas from the Sligo Gas Field was an oil, gas, and mineral lease dated January 23, 1961, and executed by the United States Department of the Interi- or in favor of Union Producing Co. and covering land situated in the Sligo Gas Field. Defendant averred that it acquired an undivided 15% interest in'this lease by virtue of an assignment from Union Producing Co. on January 30, 1961, and argued that this lease did not constitute an offer or contract to sell natural gas, but, rather, granted defendant only the right to explore for, remove, and dispose of oil and gas. Hence, defendant contended, the only payments made by it to the United States government were the payments of royalty (based on the value of the natural gas and other products extracted from the natural gas) as provided in the lease and not payments for the purchase of natural gas from the United States government.

By supplemental and amended answer, defendant further alleged that the Federal Power Commission, pursuant to the provisions of the Natural Gas Act (15 U.S.C. § 717a-w) had sole jurisdiction over the sale of natural gas by plaintiffs to defendant under the January 11, 1952 gas purchase agreement upon which this action was founded. Defendant contended that, pursuant to 15 U.S.C. § 7170(d), plaintiffs were required to file and give notice of any proposed increase of rates, including any contractually-authorized rate increase, above the authorized initial rate and that, as plaintiffs had failed to file for such rate increase allegedly allowable under the favored nations clause, they were not lawfully authorized to collect the increased rate in this action. In addition, defendant averred that one of the named plaintiffs, W. E. Hall, Jr., executed, on May 25, 1969, an amendment to the gas purchase agreement of January 11, 1952, which deleted the favored nations clause from his contract with defendant. In view of this amendment, defendant contended that W. E. Hall, Jr. had no cause or right of action for any claim against defendant arising on or after May 25, 1969.

The trial court first held that payments made by defendant to the United States government under the terms of the lease constituted a “purchase from another party seller” within the meaning of the favored nations clause contained in the January 11, 1952 gas purchase contract entered into between plaintiffs and defendant. The court reasoned that defendant, in making payments to the United States government under its lease, was acting in a dual capacity: it was paying royalty as lessee and purchasing gas as pipeline purchaser. The court determined that defendant failed to advise plaintiffs of this fact or pay them the higher, contractually-authorized price. Having held that defendant breached the original gas purchase contract, the trial court next concluded that defendant would only be liable for damages (measured by the difference between the price paid the United States government and the price paid plaintiffs) for the period subsequent to the issuance of small producer certificates to plaintiffs in October 1972. The court reasoned that plaintiffs could not recover a “raise in prices” for the period prior to October 1972 because they had never obtained approval of a higher rate or price from the Federal Power Commission as required by 15 U.S.C. § 717c-d. The trial judge noted, however, that the regulations of the Commission (18 C.F.R. § 157.40) provide that a “small producer,” as defined in the regulations, may obtain a small producer certificate from the Commission exempting it from the necessity of filing a rate schedule in order to obtain contractually-authorized rate increases if the rate increase does not exceed the ceiling rate set by the Commission. The trial judge determined that plaintiffs had obtained such “small producer certificates” in October 1972 and concluded that plaintiffs would be entitled to a recovery of damages for the period from October 1972 through December 1975. The trial court then determined that, because W. E. Hall, Jr. amended his contract with defendant on May 25, 1969, and deleted the favored nations clause from his contract, he had no claim against defendant under the favored nations clause subsequent to May 25, 1969, and would be entitled to no recovery of damages.

The court of appeal affirmed the trial court, holding that defendant had breached the favored nations clause of its contract with plaintiffs and that plaintiffs were entitled to damages measured by the difference between the price paid by defendant to the United States government and the price paid to plaintiffs (after applying adjustments for pertinent factors) only for the period from October 1, 1972 through December 31, 1975. In addition, the court of appeal held that W. E. Hall, Jr. had waived any claim for damages against defendant for the period subsequent to May 25, 1969, by entering into an amended contract with defendant on that date which deleted the favored nations clause from his contract.

We denied defendant’s application for a writ to review the correctness of the court of appeal’s decision. However, on application of plaintiffs, we granted a writ limited to a consideration of whether the court of appeal was correct in denying an award of damages to plaintiffs for the period of defendant’s breach prior to October' 1972 and whether it was correct in holding that W. E. Hall, Jr. “waived” any claim for damages against defendant by entering into an amended contract on May 25, 1969, which deleted the favored nations clause from his contract.

We note, at the outset, that this controversy involves plaintiffs’ claims for damages arising from defendant’s breach of a gas purchase contract. The claims herein are not founded upon any liability created by the Natural Gas Act, but, rather, are founded upon a private contract deriving its force and effect from state law. There is no issue herein as to the reasonableness of the price, nor any attempt to adjudicate a proper rate, as defendant argues. Issues involving contract violation were not made subject to the cognizance of the Federal Power Commission by the enactment of the Natural Gas Act. Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961). The regulatory system of the Natural Gas Act is built upon private contracts, as modified by the Act, and the Act evinces no purpose to abrogate private gas purchase contracts. United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956). A determination of the appropriate measure of compensatory damages due plaintiffs as a result of defendant’s breach of a private contract is, we believe, a matter particularly within the purview of our state law and state courts.

It is conceded by the parties before us that plaintiffs’ recovery of damages arising from defendant’s breach of the contract is to be measured by the difference between the price paid by defendant to the United States government and the price paid by it to plaintiffs (after adjustment for pertinent factors as indicated in the court of appeal opinion). The first issue presented for our resolution is a determination of whether plaintiffs are entitled to a recovery of the difference between such prices for the entire period of defendant’s breach of the contract (September 1961 through December 31, 1975) or whether plaintiffs are precluded from a recovery of damages representing the period prior to October 1972.

Unless the Federal Power Commission otherwise orders, no change shall be made by any natural gas company in any rate received by it for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. 15 U.S.C. § 717c(a) & (d). Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when such changes will go into effect. Id. (d). A “small producer” (as defined by the Commission’s regulations) may obtain a “small producer certificate” exempting it from the requirement of having to file a rate schedule as long as the increase in rate does not exceed the ceiling rate set by the Commission. See 18 C.F.R. § 157.40. Several of the plaintiffs obtained “small producer certificates” in October 1972, and the certificates issued to those parties were made effective as to all plaintiffs by order of the Commission. It is not disputed by the parties before us that the only rate schedule ever filed by plaintiffs with the Commission was the original gas purchase contract entered into on January 11, 1952. The trial court and court of appeal denied plaintiffs an award of damages arising from defendant’s breach of contract for the period of time (i. e., prior to October 1972) during which plaintiffs were required to file new rate schedules with the Commission reflecting their entitlement under the contract, to a higher price for their natural gas sold to defendant.

La. Civ. Code art. 2040 provides:

The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.

It is difficult to attach a precise meaning to the rule as it is literally set forth in the text of article 2040. This court, however, has long recognized that the English translation of this provision from the French articles as written in the Louisiana Civil Codes of 1825 (article 2035) and 1808 (article 78) is inaccurate and the French text has always prevailed in decisions of this court. See George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (1954); Southport Mill v. Friedrichs, 171 La. 786, 132 So. 346 (1931); Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927); Walls v. Smith, 3 La. 498 (1832) (dissenting opinion). Article 2040, properly interpreted, means that the condition is considered fulfilled, when it is the debtor, bound under' that condition, who prevents the fulfillment. George W. Garig Transfer v. Harris, supra; Southport Mill v. Friedrichs, supra; Morrison v. Mioton, supra. This rule is but an application of the long-established principles of law that he who prevents a thing may not avail himself of the non-performance he has occasioned and that one should not be able to take advantage of his own wrongful act. See Cox v. Department of Highways, 252 La. 22, 209 So.2d 9 (1968).

The favored nations clause of the contract entered into between plaintiffs and defendant provided that, if defendant purchased from another party seller gas produced from any wells located in the Sli-go Gas Field at a higher price than was provided to be paid for plaintiffs’ gas, defendant was bound to pay plaintiffs for the gas delivered under their contract at a price increased by an amount equal to the differences between the price provisions of plaintiffs’ contract with defendant and the concurrently effective higher price provisions of defendant’s contract with the other party seller. To realize this higher, contractually-authorized price, plaintiffs, pursuant to the Natural Gas Act, were required to file new rate schedules with the Commission. However, plaintiffs were effectively precluded from making the requisite filings because they were not, at any time, informed by defendant that it was, in fact, paying a higher price to another party seller. Although defendant was only bound to pay plaintiffs a higher price if plaintiffs filed new rate schedules with the Commission, it is apparent that defendant prevented the fulfillment of that condition (plaintiffs filing with the Commission) by failing to inform plaintiffs of its contractual arrangements with the United States government. Pursuant to article 2040 and this court’s jurisprudence interpreting that article, the condition (that plaintiffs file new rate schedules) is considered fulfilled. Hence, plaintiffs’ failure to file the new rate schedules in no way precludes plaintiffs recovery of damages for the entire period of defendant’s breach (September 1961 through December 31,1975) as measured by the difference in the price defendant paid the United States government and the price defendant paid plaintiffs. To hold otherwise would be in clear contravention of the spirit and intent of article 2040 and the jurisprudence of this court.

The court of appeal also reasoned that plaintiffs’ recovery of damages for the period of defendant’s breach prior to October 1972 must be denied because such recovery would necessarily assume that a price increase would have been granted by the Commission. The appellate court concluded that the issue as to whether such approval would have been granted by the Commission was highly speculative and could not serve as a basis for an award of damages.

Actual damages arising from a breach of contract must be proven; they cannot be merely speculative or conjectural. Brown v. Producers’ Oil Co., 134 La. 672, 64 So. 674 (1914). It must appear reasonably certain that the amount of damages rests upon a certain basis. Brown v. Producers’ Oil Co., supra. Such proof need- be only by a preponderance of the evidence; proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows that the facts or causation sought to be proved is more probable than not. Cf. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). The sufficiency of proof of damages must be determined in relation to the particular contract at issue and the circumstances surrounding its breach. The question of the certainty of proof of damages becomes a matter for decision in each individual case. Angelloz v. Humble Oil & Refining Co., 196 La. 604, 199 So. 656 (1940).

At trial, a November 8, 1976 order of the Commission was produced which indicated the maximum rates to which plaintiffs would have been entitled if contractually authorized and if proper filing procedures had been followed (Exhibit D-59). The Commission clearly indicated in its order that it would have approved such rates. No evidence was adduced by defendant to establish that Commission approval would have been unlikely. It is our opinion that, taking the evidence as a whole, plaintiffs’ proof shows that it was more probable than not that the Commission would have approved a contractually-authorized price increase if the proper filing procedures had been followed. It appears reasonably certain that the amount of damages claimed by plaintiffs rests upon a certain basis.

In sum, it is our opinion that plaintiffs are entitled to a recovery of an award of damages measured by the difference between the price defendant paid the United States government and the price defendant paid plaintiffs (after applying various adjustments for pertinent factors) for the entire period of defendant’s breach of contract from September 1961 through December 31, 1975.

We must next determine whether W. E. Hall, Jr. waived any claim against defendant for damages arising on and after May 25, 1969, because, on that date, he entered into a contract with defendant wherein he deleted the favored nations clause from the January 11, 1952 agreement. Plaintiffs argue that Hall executed the May 25, 1969 agreement without being informed by defendant that it had activated the favored nations clause of the original agreement and that defendant misrepresented facts to Hall by informing him that it was paying plaintiffs the highest prices that it was paying any other party sellers for gas produced from the Sligo Field. Plaintiffs contend the May 25, 1969 agreement is void because Hall executed it under an error of fact.

Hall’s testimony indicates that in 1969 he possessed an interest in a well (referred to as the Harvey well) under contract to Texas Gas Producing Company (Texas) with the natural gas produced therefrom being sold to Texas. In 1969, the Harvey well was nearly depleted and its pressure was dropping. The pressure on the Texas pipeline serving the Harvey well was too high for such gas to be carried through the pipeline. Hall stated that he was confronted with a situation where he was either going to have to “junk the well,” buy a compressor and continue selling to Texas, or obtain a release from Texas and sell to another party with a lower pipeline pressure. After learning that the pressure on defendant’s pipelines was lower than that on Texas’ pipelines, Hall obtained a release from Texas and negotiated with defendant to take the gas from the Harvey well. An agreement was executed wherein defendant amended the January 11,1952 gas purchase agreement to also cover Hall’s share of the production from the Harvey well. This amendment also deleted the favored nations clause from the January 11, 1952 gas purchase contract. Hall maintained that had he been aware of the fact that defendant was paying a higher price to another party seller in the Sligo Field, he would not have agreed to the deletion of the favored nations clause. Hall also stated that his primary purpose in executing the May 25,1969 agreement with defendant was to avoid having to purchase and operate a compressor and to be able to continue selling gas from the Harvey well.

Consent of the parties legally given is a requisite to the validity of a contract. La. Civil Code art. 1779. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent where it has been produced by error. La. Civil Code art. 1819. An error of fact proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none. La. Civil Code art. 1821. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. La. Civil Code art. 1823. To have that effect, the error must be in some point, which was a principal cause for making the contract and when there are several this principal cause is called the motive and means that consideration without which the contract would not have been made. Id. & art. 1825. No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it. La. Civil Code art. 1826. These articles of our Code simply mean that error in the determining motive, or principal cause, of a contract vitiates consent and invalidates the contract. Error as to a subsidiary motive has no effect upon the validity of the contract. Cryer v. M & M Manufacturing Co., Inc., 273 So.2d 818 (La.1972); Stack v. Irwin, 246 La. 777, 167 So.2d 363 (1964); Carpenter v. Skinner, 224 La. 848, 71 So.2d 133 (1954).

A review of the record convinces us that the error relied upon by plaintiffs to invalidate the May 25, 1969 agreement was not an error in the determining motive, or principal cause, of the agreement. Hall’s testimony clearly indicates that the determining motive, or principal cause, of the agreement was his desire to continue selling gas from the Harvey well and to avoid purchasing and operating a compressor for the Harvey well. Any error relating to the issue as to whether defendant had activated the favored nations clause of the original agreement was only error as to a subsidiary motive and has no effect upon the validity of the May 25, 1969 agreement. Hence, we determine that the May 25,1969 agreement is not invalid as having been executed by Hall under an error of fact.

We construe plaintiffs’ allegations as a contention that the misrepresentations and omissions of defendant invalidated the contract because they constituted fraud.

Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. La. Civil Code art. 1847. Two elements are essential to constitute legal fraud: the intention to defraud and loss or damage or a strong probability of loss or damage. Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (1953). It is well settled that one who alleges fraud has the burden of establishing it by legal and convincing evidence since fraud is never presumed, and that to establish fraud exceptionally strong proof must be adduced. Buxton v. McKendrick, supra; Sanders v. Sanders, 222 La. 233, 62 So.2d 284 (1952).

The trial court made no finding that defendant fraudulently concealed or misrepresented facts relating to its activation of the favored nations clause. The court of appeal, in affirming the trial court’s determination on this issue, found the evidence insufficient t<? support plaintiffs’ allegation of fraud. We have reviewed the record and it is our opinion that the determination made by the lower courts on this issue is correct. Plaintiffs failed to prove that defendant possessed the requisite intent to defraud. Hence, the May 25, 1969 agreement executed by W. E. Hall, Jr. cannot be invalidated on the basis of alleged fraudulent conduct of defendant.

In sum, we conclude that the May 25, 1969 amendment to the original gas purchase contract executed by W. E. Hall, Jr. is a valid and enforceable agreement. Since the effect of this agreement was to delete the favored nations clause from the original contract, W. E. Hall, Jr. has no claims for damages against defendant arising on or after May 25, 1969.

DECREE

For the reasons assigned, judgment of the court of appeal is amended to allow plaintiffs (except W. E. Hall, Jr.) an award of damages measured by the difference between the price paid the United States government and the price defendant paid plaintiffs for the entire period of defendant’s breach of contract from September 1961 through December 31, 1975; W. E. Hall, Jr.’s recovery of damages against defendant is to be measured for the period of time from September 1961 through May 24, 1969. The case is remanded to the district court for assessment of damages in accordance with the views herein expressed.

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

I fully subscribe to the opinion, but believe C.C. 2040 is applicable only by analogy, and that C.C. 2040 is probably a clarification of the original French text, not an “inaccurate” translation.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . 15 U.S.C. § 717c(d) provides:
      Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.

      . The court of appeal found that the calculations used by the trial judge to determine the amount of damages for the period from October 1, 1972 through December 31, 1975 were based on plaintiffs’ calculations representing the entire period of the breach (September 1961 through December 31, 1975). The appellate court thus ordered the case remanded for a new trial restricted to the assessment of damages.

      . 359 So.2d 255 (La.App. 2d Cir. 1978).

      . 362 So.2d 1120 (La.1978). It is well settled that, when both parties apply for a writ of review, this court’s denial of the application made by one of the parties constitutes our final determination upon the matters included therein. This court then will not pass a second time upon these matters at the hearing on review granted through the application of the other party. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). Hence, any questions relating to the determinations made by the courts below that defendant breached the favored nations clause of its gas purchase contract with plaintiffs are not now before us.

      . 362 So.2d 798 (La.1978).

      . We do not believe the debtor’s bad faith or fraud (or lack thereof) is relevant to a determination of whether it has prevented the fulfillment of a condition under which it is bound. Planiol, in commenting upon the French counterpart of our article 2040, states, “[t]he act of the debtor, even when free from fraud, causes to the creditor a prejudice for which reparation is due, and the most complete reparation which can be offered to the creditor is the execution of the obligation, as if the condition had been accomplished. The act of the debtor can consist of any act whatsoever which prevents the realization of the condition.” 2 M. Planiol, Treatise on the Civil Law, No. 388 A (La.St.L. Inst, transí. 1959).

      . We note that plaintiffs make no claim that they would have been entitled to a price increase under their contract in excess of the respective area base rate ceilings for sales of natural gas as established by order of the Commission.

      . In fact, it appears that the deletion of the favored nations clause from the original agreement was an effort by defendant to comply with the orders and regulations of the Federal Power Commission. By Order No. 232 A (25 F.P.C. 609), issued March 31, 1961, the Commission amended its regulations so as to provide that indefinite price escalation clauses (including favored nations clauses) in sales contracts executed on or after April 3, 1961, for the sale or transportation of natural gas subject to the jurisdiction of the Commission would be inoperative and of no effect at law. By Order No. 242 (27 F.P.C. 339), issued February 8, 1962, the Commission further amended its regulations to provide for the rejection of contracts containing such indefinite escalation clauses. See 18 C.F.R. §§ 154.93, 157.14 and 157.25.


author:
SUMMERS, Chief Justice.
     TATE, Justice,

text:
    MARATHON PIPE LINE COMPANY v. Mrs. Charlie Holcombe PITCHER.
    No. 62768.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.
    Ashton L. Stewart, Stewart & Preis, Baton Rouge, for defendant-applicant.
    Thomas R. Blum, Ralph L. Kaskell, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for plaintiff-respondent.
   SUMMERS, Chief Justice.

Marathon Pipe Line Co. instituted this expropriation proceeding to obtain a 20-foot permanent servitude for a petroleum pipeline along a pipeline corridor in East Baton Rouge Parish. Defendant Charlie Hol-combe Pitcher, who owns property which the pipeline will traverse, resisted the taking. She contends that Sections 1-14 of Title 19 and Sections 251-254 of Title 45 of the Revised Statutes, under which plaintiff claims the right of expropriation, are unconstitutional in contravention of Section 4 of Article I of the Constitution of Louisiana. Alternatively, defendant alleged the servitude should be limited in certain respects and that substantial severance damages should be awarded in addition to the award for the servitude expropriated and for attorney’s fees.

It is defendant’s contention that her 35-acre tract of land to be traversed diagonally by the pipeline is located within the city limits of Baton Rouge and is surrounded by newly developed and built-up residential subdivisions. The highest and best use of her property is said to be for development as a residential subdivision. Installation of the pipeline would therefore impede the construction of a necessary access road to a residential subdivision planned to be developed on her property.

Constitutionality of the statutes was upheld in the trial court and defendant was awarded $5,074.50 as compensation for the servitude expropriated, and $10,000 for severance damages, plus costs and attorney’s fees.

In adjudicating the servitude to plaintiff the trial judge, as suggested by Marathon in its petition, imposed this obligation:

“[I]n the event defendant, or her successor in title, constructs the street described hereinafter across plaintiff’s pipeline, and it is necessary for plaintiff’s pipeline to be encased or otherwise protected to permit construction of said street, such encasement or protection shall be accomplished at the expense of plaintiff, Marathon Pipe Line Company, provided, however, that plaintiff shall be required to accomplish such encasement and protection (a) only if the street constructed by defendant is an extension of East Parnell Avenue from Sherwood Forest Subdivision, Thirteenth Filing, directly across Flannery Road into her property, and then only to the extent necessary to permit construction of a street with a right-of-way sixty (60') feet in width.”

In the Court of Appeal the judgment was affirmed. 361 So.2d 314. Defendant applied to this Court for a review of this judgment, contending that it was error to permit the expropriation without requiring the full payment of compensation for the taking in money. Certiorari was granted. 362 So.2d 787.

In her presentation to this Court defendant explains that the trial and appellate courts employed an erroneous basis for fixing the amount of compensation to which she is entitled. Those courts reduced the market value of defendant’s property by the amount required to encase the pipeline where the street would cross, instead of awarding the amount necessary to complete the encasement as part of the compensation due the landowner. The stipulated cost of encasement was $19,394.10. This amount, defendant claims, should have been awarded to her at the time of the taking in addition to the $15,074.00.

From the testimony and exhibits on file it is evident that the highest and best use of defendant’s property is for development as a residential subdivision. Development of such a subdivision will require a street leading from the public road into plaintiff’s property. To properly develop plaintiff’s property as a residential subdivision the street will have to traverse plaintiff’s pipeline, and it will be necessary to encase that pipeline. The cost of the encasement at the time of the taking was stipulated to be $19,394.10. These facts establish that the cost of encasement is a “damage” to defendant’s property which affects its present market value. The diminution in value is “damage” for which compensation is due. The sole question, then, is whether that damage should have been compensated to defendant in money prior to the taking or whether the court properly imposed an obligation on the pipeline company to encase the pipe “in the event defendant, or her successors in title, construct the street” and “it is necessary for plaintiff’s pipeline to be encased.”

Aside from the fact that two contingencies are made part of defendant’s obligation to encase the pipe, there is little doubt that the laying of the pipeline across defendant’s property does affect its market value. And that effect is due to the reasonable certainty that in order to put the property to its highest and best use a street will be required and it will be necessary to encase the pipeline.

Dakin and Klein in Eminent Domain in Louisiana at page 96 considered this question, saying:

“Every parcel of land is presumed to have a single use which is its most economically profitable. It is this premise which the courts and the appraisers mean to convey when they use the term ‘highest and best use’. Not infrequently, a partial expropriation of or a public improvement on an adjacent property has the effect of destroying the highest and best use of a parcel, thereby resulting in injury quite measurable in dollars and cents. In calculating the compensation, the courts are first concerned with determining what is and was the highest and best use of the land and the remainder. The rule here is that the highest and best use of the remainder is the point of interest, and it is to be determined immediately before and immediately after the taking.”

Because of its limited adaptation as a residential subdivision the market value of the property suffers whether a street is constructed over the pipeline or not. It is the impediment created by the pipeline which creates the diminution in value. This diminution in value is not therefore compensated under the obligation imposed upon plaintiff by the Court of Appeal “in the event defendant, or her successors in title, construct the street.” Such a contingency, which may or may not occur, is one the fulfillment of which requires that Marathon Pipe Line Company be in existence and be the owner of the pipeline when the obligation to encase becomes executory. This is so for there is no obligation imposed upon Marathon’s successors or assigns. Added to this uncertainty is a further condition that encasement will depend upon whether “it is necessary for plaintiff’s pipeline to be encased.” This leaves open for future controversy and litigation the question whether encasement of the pipeline is then necessary.

In general terms the Fifth Amendment to the United States Constitution embodies as part of its due process guarantee the principle that “private property [shall not] be taken for public use, without just compensation.”

Section 4 of Article I of Louisiana’s Constitution contains more detailed protections for the owners of private property. In this State every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. The Constitution guarantees that “Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner . . . .”

Plaintiff, a private entity, claims the right to expropriate as the owner and operator of pipelines for the transmission or transportation, as a common carrier of petroleum, petroleum products and petroleum by-products. As such their rights are governed by the constitutional principles quoted and by Sections 1 through 14 of Title 19 and Sections 251 through 254 of Title 45 of the Revised Statutes.

These enactments implement the protections set forth in Section 4 of Article I of the Louisiana Constitution. The latest amendments were designed to become effective on the effective date of the new Constitution. It is implicit in these statutes that they carry out the letter and spirit of Louisiana’s Constitutional Article on expropriation.

Section 2(8) of Title 19 authorizes common carrier pipelines to expropriate servi-tudes. A petition for expropriation is required by Section 2.1 to conclude with a prayer that the property be adjudicated to the plaintiff with just compensation “paid” to the owner. Section 7 sets forth that failure of the property owner to file his answer timely constitutes a waiver of all defenses to the suit except claims for “money” as compensation for the property sought to be expropriated and claims for “money” as damages to other property.

Expropriation cases are tried before the court without a jury, except that a party shall have the right to trial by jury to determine compensation. Id. § 4. When the trial judge decides in favor of the expropriating authority, if a jury is requested one is thereafter empaneled to determine the measure of compensation. When compensation is determined the plaintiff shall, upon motion of defendant, present evidence as to the “highest amount” it offered defendant prior to trial. The court shall then determine the “highest amount” offered. If the “highest amount” offered is less than the compensation awarded, reasonable attorney’s fees may be awarded. The expropriating authority shall not be entitled to possession or ownership of the property until a final judgment has been rendered and “payment” has been made to the owner or “paid” into the registry of the court. Id. § 8.

After trial to determine compensation the court shall render judgment against plaintiff in the “amount” of the compensation determined to be due the owner. Id. § 8(C).

“Payment” by plaintiff to the owner of the compensation fixed in the final judgment to be due or the deposit thereof in the registry of the court for the benefit of the persons entitled thereto entitles the plaintiff to the property rights described in the judgment of expropriation. Id. § 10.

When property encumbered with mortgages or privileges is expropriated the property passes to the person expropriating free and clear of all encumbrances. Amounts awarded for the expropriation “shall be paid” into the court and distributed to the mortgage and privileged creditors. Id. § 11.

“If a tender is made of the true value” of the property to the owner before proceeding to expropriation, the cost of the expropriation shall be paid by the owner. Id. § 12.

It would be difficult to conclude that the obligation to encase the pipeline, which the Court of Appeal imposed upon plaintiff, can be considered as compensation “paid” for the damage to defendant’s property as required by Sections 1 through 14 of Title 19. These sections have been paraphrased with quotations of significant language material to the issue at hand.

The very prayer of the petition for expropriation mandated by Section 2.1 makes expropriation contingent upon compensation “paid” to the owner. An obligation upon the expropriating authority to undertake an encasement of the pipeline at some uncertain future date if encasement is “necessary” is hardly a fulfillment of the mandate of Section 2.1. Nor can such an obligation on the expropriating authority be considered a satisfaction of defendant’s claim for “money” as compensation for the property sought to be expropriated or claims for “money” as damages to other property as contemplated in Section 7.

Just as an obligation to encase cannot be considered “money” within the contemplation of Section 7, such an obligation cannot be within the contemplation of the “highest amount” standard or the “payment” required to be made prior to the taking as set forth in Section 8. To the contrary, an obligation to perform encasement of a pipeline at some indeterminate future date could not fulfill the requirement that compensation be paid prior to the expropriation.

When Section 8(C) requires that the “amount” of compensation be determined it refers to the “amount” in “money”, not an obligation to perform a future encasement of a pipeline. See also reference to “amount” in Sec. 9.

The prior “payment” of compensation to which defendant is entitled before plaintiff may take possession of the property rights in the adjudication referred to in Section 10 is not accomplished by an obligation to encase a pipeline at a future date if necessary.

How can the holders of mortgages and privileges be “paid” from the compensation awarded in an expropriation if that compensation is in the form of an obligation to encase a pipeline at a future uncertain date “if necessary”? The answer is that payment of those creditors could not be accomplished under those circumstances and that Section 11 does not contemplate payment of compensation in an expropriation proceeding in any medium other than money.

A “tender” of the “true value” of the property before expropriation is likewise virtually impossible except by a tender of money and such is the intent of Section 12.

Implementation of the constitutional guarantee, then, means that property shall not be taken or damaged by private entities authorized to expropriate except for a public and necessary purpose and unless compensation is paid in money prior to the taking. For courts to adjudicate the forced taking of private property otherwise would be to disregard the clear and unequivocal language of Sections 1 through 14 of Title 19 of the Revised Statutes. By disregarding the Legislature’s clear intent and meaning, courts would render those provisions of the law inoperable. Owners would find themselves divested of their property without just compensation and, as in this case, faced with the prospect of further litigation and turmoil brought about by efforts of the courts to fashion remedies contrary to those prescribed by statute.

Louisiana’s Constitution and this Court have long recognized that private property could not be taken or damaged except for public purposes and “after” just and adequate compensation is paid. La.Const. art. I, § 2 (1921); La.Const. art. 167 (1898); La.Civil Code art. 2629; State v. Phares, 245 La. 534, 159 So.2d 144 (1964); State Through Department of Highways v. Macaluso, 235 La. 1019, 106 So.2d 455 (1958); Charles Tolmas, Inc. v. Police Jury, 231 La. 1, 90 So.2d 65 (1956); DeBouchel v. Louisiana Highway Commission, et al., 172 La. 908, 135 So. 914 (1931); Bickham v. City of Shreveport, 156 La. 648, 101 So. 8 (1924). The principle is derived from the Code Napoleon, article 545. Aubrey & Rau, § 193; Planiol, Yol. 1, No. 2443; Nichols, The Law of Eminent Domain § 8.713 (3rd ed. 1950).

The principle that compensation for taking property by expropriation must be a “price” in money has been equally well-settled in Louisiana. La.Const. Art. I, § 2. (1921); La.Civil Code arts. 497, 2633-34; Louisiana Power & Light Company v. Lasseigne, 256 La. 919, 240 So.2d 707 (1970). And while the jurisprudence of this State formerly permitted a setoff from the damages to the remaining land, based upon the benefits to be derived from the contemplated improvements, this rule apparently has been abolished by Section 9 of Title 19 of the Revised Statutes. The present concept requires that “The owner shall be compensated to the full extent of his loss.”

Generally it is held that compensation means a full indemnity or remuneration for the loss or damage sustained by the owner of property taken or injured for public use; and just compensation means the full and perfect equivalent in money of the property taken whereby the owner is put in as good a position pecuniarily as he would have been had his property not been taken. State Through Department of Highways v. Mason, 218 So.2d 329 (La.App.1968), affirmed 254 La. 1035, 229 So.2d 89 (1969); Gulf States Utilities Company v. Norman, 183 So.2d 421 (La.App.1966); State Through Department of Highways v. Poulan, 160 So.2d 387 (La.App.1964); Woodworth v. Commonwealth, 353 Mass. 229, 230 N.E.2d 814 (1967); Michigan Consolidated Gas Co. v. Muzeck, 8 Mich.App. 329, 154 N.W.2d 667 (1967); State Commissioner of Transp. v. Township of South Hackensack, 65 N.J. 377, 322 A.2d 818 (1974); 29A C.J.S. Eminent Domain § 96.

Although the means by which compensation is to be paid is seldom prescribed in the constitutions, it is generally held that it must be in money. Vanhorne's Lessee v. Dorrance, 2 Dall. 304, 1 L.Ed. 391 (U.S.1795); Sittenfeld v. Tobriner, 148 U.S.App. D.C. 113, 459 F.2d 1137 (1972); Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 277 A.2d 873 (1971); 27 Am.Jur.2d, Eminent Domain § 265.

On the basis of this record and the authorities set forth, it is the Court’s conclusion that defendant should have been compensated by the payment of the additional stipulated cost of encasing the pipe before the taking and in money, not by imposing a conditional obligation on the plaintiff to encase the pipe.

For the reasons assigned there is judgment in favor of defendant and against plaintiff in the full and true sum of $19,-394.10, plus interest from the date of the adjudication of the servitude to plaintiff until paid and for all costs.

TATE, J., dissents and assigns reasons.

MARCUS and DENNIS, JJ., dissent for reasons assigned by TATE, J.

TATE, Justice,

dissenting.

I respectfully dissent. I would affirm the decision of the trial court and of the court of appeal. 361 So.2d 314 (La.App. 1st Cir. 1978).

At issue is the possible diminution of the value of property left after the taking, i. e., severance damages. The issue is the potential damage that might be caused, if a public street is ever built over the pipeline in the course of subdivision development of the affected remaining property.

The trial court recognized the problem of providing compensation for this contingency as including speculative possibilities: if a street is ever built; just where its location might be, if ever actually built; actual (increased or decreased) cost of encasing the pipeline at some time in the future, if and when and where required; the effect of a present local governmental regulation, which may require the owner of the pipeline, in any event, to encase the pipeline if a street is ever constructed (and the possibility that an ordinance to this effect may be changed); etc.

However, rather than denying or diminishing (as speculative) severance damage of the nature sought, the trial court (rather sensibly, I thought) protected the interest of the landowner by requiring future encasement of the pipeline at a street crossing, if such ever actually becomes necessary because of construction of a street. The imposition of an affirmative duty upon the taker to alleviate or prevent severance damage, in lieu of a monied award to the person whose property has been taken, has been approved in a number of instances in our past. See Dakin and Klein, Eminent Domain in Louisiana, p. 85 (1970), citing, e. g., Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562 (1910) (building crossings, fences, drainage ditches, etc.) and United Gas Pipe Line Co. v. New Orleans Terminal Co., 156 So.2d 297 (La.App. 4th Cir. 1963). (encasing pipeline at three railroad crossings).

The majority’s scholarly opinion has forcefully stated opposing considerations. Nevertheless, I respectfully suggest that the constitutional requirements — that the landowner’s property may not be taken or damaged except “with just compensation paid” — has here been met by actual payment here in money for the value of the property actually taken (market value of property taken) and damaged (severance damages awarded for present loss in value of remainder of tract through construction of a pipeline).

I do not believe that the constitutional provision was intended as a strait jacket to require, as to future damage that might occur, either the rejection of an award as speculative or else a guess at the monied award that might be required.

In my judgment, the court of appeal was correct in affirming the trial court’s conditional award, by way of an affirmative duty on the taker to encase its pipeline if ever required, so as to obviate any severance damage of the nature feared, if and when it arises in the future.

The provision of our constitution that an owner “shall be compensated to the full extent of his loss”, La.Const. Art. 1, Section 4 (1974), does not seem to me to require that the taker must pay the owner in cash for losses which have not occurred and which may never occur. In the absence of such a constitutional requirement, in my opinion the trial court’s provision that the pipeline be encased by the taker (if and when and where a street is built) is not prohibited by law and is within the sound discretion of the trial court as a sensible and adequate protection of the landowner’s interests — rather than deny any severance damage to him (her) at all (on the ground that none is proved to be reasonably certain to occur), the trial judge assured that the severance damage would be avoided — if ever the potential contingency causing it in fact occurred.

       Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.