author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Donald KURNS, Appellee.
    No. 80-1300.
    District Court of Appeal of Florida, Second District.
    April 29, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    John C. Wilkins, III, Bartow, for appellee.
   OTT, Judge.

Appellee was charged with attempted first-degree murder. Following appellee’s conviction of attempted second-degree murder, the trial court granted his motion for a new trial. We reverse.

In the trial judge’s charge to the jury, he instructed on the definitions of attempted first-degree murder, lesser included offenses, and on the justifiable use of force and excusable homicide. During their deliberation, the jury returned and requested the trial judge to repeat the definitions of aggravated assault, attempted manslaughter, and self-defense. With the agreement of both the state and appellee, the instructions on aggravated assault, attempted manslaughter, self-defense and justifiable use of deadly force were repeated. After further deliberation, the jury again returned and requested to be instructed on only the definition of second-degree murder. Appellee thereupon requested the trial judge to repeat the instruction on self-defense, but the state objected that such a gratuitous instruction by the judge would be given undue significance by the jury. The trial judge refused Kurns’ request and only instructed the jury on second-degree murder.

The jury convicted appellee of attempted second-degree murder. He thereafter moved for a new trial on two grounds: that the trial court should have reinstructed the jury on self-defense pursuant to his request at the trial and on the ground of newly discovered evidence.

We first consider the trial court’s denial of Kurns’ request for a second instruction on self-defense. In Henry v. State, 359 So.2d 864 (Fla.1978), the supreme court stated that where a specific instruction is requested by the jury, and it is suggested by the request that the jury has decided the act was an unlawful homicide, no instruction need be given on lawful homicide. In the present case, two prior instructions on self-defense had been given. At the time of the jury’s second request for additional instructions, they had narrowed their request specifically to second-degree murder. Thus, it seems clear that the jury had determined that Kurns’ actions were unlawful. There was, therefore, no error in refusing an additional instruction on self-defense. Such an instruction would only cause the jury to question its current position or suggest to them that the judge considered ap-pellee’s actions justified.

Appellee also argued that he had recently discovered new legal authority to support the introduction of the testimony of a psychiatrist he had listed as a possible witness prior to trial. Thus, Kurns had not discovered new and material evidence as contemplated by rule 3.600(3), Florida Rules of Criminal Procedure, rather, he had, post-trial, discovered additional case law supporting the introduction of known evidence. Newly discovered case law does not constitute newly discovered material evidence capable of changing the result of the trial. We note that no review was sought of the action, if any, of the trial judge excluding the testimony in question.

Finding no basis for granting the new trial, we reverse and vacate the order and reinstate appellee’s conviction for attempted second-degree murder.

SCHEB, C. J., and BOARDMAN, J., concur.


source: Caselaw Access Project

author: CAMPBELL, Judge.

license: Public Domain

text:
    IN re the ESTATE of Kaihi SWANSON, Deceased. Melissa BAIRD and Elizabeth Baird, Appellants, v. Roger A. LARSON, as Personal Representative for the Estate of Kaihi Swanson, Deceased, Appellee.
    No. 80-1687.
    District Court of Appeal of Florida, Second District.
    April 29, 1981.
    James A. Baxter and Elise K. Winters of Baxter & Rinard, P. A., Clearwater, for appellants.
    Leslie M. Conklin of Graham, Hodge & Larson, P. A., Belleair Bluffs, for appellee.
   CAMPBELL, Judge.

This action is an appeal from the final order granting appellee’s motion to abate appellant’s petition challenging the validity of Kaihi Swanson’s will. The appellants assert that section 732.502(2), Florida Statutes (1979), applies only to the procedural aspects of will execution and, thus, a will may be attacked on substantive grounds outside the state of execution. We agree and reverse the order of the lower court.

Kaihi Swanson, a Georgia domiciliary at the time of her death, executed a will in Georgia and purported to devise real property located in Florida. The will named Raymond Robinson as executor/beneficiary who filed a petition for ancillary administration in Florida. Appellants, the testator’s stepdaughters and beneficiaries under a prior will, challenged the petition for ancillary administration by filing a petition for revocation of probate in Pinellas County alleging two substantive grounds: lack of requisite mental capacity and undue influence by Robinson in procuring the Georgia will. The personal representative of Ms. Swanson’s ancillary estate responded with a motion to abate the proceedings, contending that Georgia was the proper forum to determine the validity of the will. The lower court agreed and entered the final order of abatement, finding that section 732.502(2) was determinative of appellants’ right to challenge the substantive validity of the will.

The question before this court is whether section 732.502(2), governing the validity of wills executed by nonresidents, applies to the substantive as well as procedural aspects of foreign wills. Section 732.502(2) is patterned after the Uniform Probate Code and provides:

Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the testator was at the time of execution. .. .

When a statute has its origins in a uniform law, it should receive a uniform interpretation in all adopting states if the beneficial purpose of uniformity is to be served. Valentine v. Hayes, 102 Fla. 157, 135 So. 538 (1931). Although it may appear that this type of statute should determine both the substantive and procedural aspects of the validity of wills,.states adopting similar statutes, have limited their applicability to procedural matters because they purport to deal with the “execution” of wills. See R. Leflar, American Conflicts of Law, 402 (3d Ed. 1977). If the statute does not apply to substantive attacks made on a foreign will, then the validity of the will is determined by the common law. Leflar, supra.

When real property is devised, common law dictates that the validity of the will is to be determined according to the law of the situs of the property. Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028 (1900); Restatement 2d, Conflicts of Laws, § 239. Furthermore, if the will devises land in more than one state, “the courts in each state will construe it as to the lands located therein as if devised by separate wills.” Trotter v. Van Pelt, 144 Fla. 517, 522, 198 So. 215, 217 (1940).

In Trotter v. Van Pelt, supra, a Virginia domiciliary devised real estate located in Florida. On her death, the will was probated in Virginia but plaintiffs argued on appeal that Virginia decrees affecting the will were not binding on them as to Florida real estate. Rejecting the argument that the issue was res judicata, the Trotter court noted that this was not a collateral attack on the Virginia probate proceedings, and the sole issue was whether the testator died testate or intestate as to Florida real estate. Although it may be argued that Trotter, dealing only with procedural attestation requirements, has been abrogated by section 732.502(2), that argument may be countered by referring to Restatement 2d, Conñicts of Laws, section 239, which can be read to extend the Trotter rule to substantive attacks made against a will. See also Leflar, supra, at 402.

It is a well-settled rule of statutory construction that in determining the legislative intent, the statute under consideration must be viewed in pari materia. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977). In examining section 732.502, which is entitled “Execution of wills,” matters of substantive validity of a will are never mentioned. The statute begins, “Every will must be in writing and executed as follows:” Each of the subsections deals with some procedural formality required for a valid execution. This statute does not purport to deal with substantive considerations such as mental capacity or undue influence.

Therefore, we conclude that although section 732.502(2) is not identical to the corresponding section of the Uniform Probate Code, it was intended to apply to only those procedures the uniform law governed namely the formal procedural elements of execution. Accordingly, we hold that appellants have the right to attack the Georgia will in a Florida court, on substantive grounds, based on their interest in the real property located in Florida.

Because we feel that legislature might find it desirable to revisit section 732.502(2), we feel it is appropriate here to examine the differences in the Florida statute and the corresponding section of the Uniform Probate Code and the possible consequences of those differences. Professors Fenn and Koren, in their article, The 1974 Florida Probate Code — A Marriage of Convenience, 27 U.Fla.L.Rev. 1,19 (1974), made a similar examination of the differences as they existed at that time and suggested a change in the Florida statute. As a result of their recommendation, the legislature in 1975 adopted their suggestion. We feel from our analysis that the suggested change unintentionally created further obstacles in validating wills of nonresidents of Florida who die owning real property in Florida or who become Florida residents after having executed their wills. Due to the attractiveness of life in Florida to both retirees and nonre-tirees, Florida’s population is increasing at a rapid rate. It would seem desirable for the state to seek to validate the prior estate planning of those persons moving to Florida when it is possible to do so.

The Uniform Probate Code, section 2-506, recognizes the validity of foreign wills if valid at the place of execution or the place of the testator’s domicile at the time of execution or death. At the time Professors Fenn and Koren wrote their article examining the 1974 Florida Probate Code, section 732.502(2) recognized the validity of a will executed by a nonresident only if it was valid as a will under the law of the place of the testator’s domicile at the time of the execution. This left out those wills valid at the place of execution or valid at the place of the testator’s domicile at the time of death. Recognizing this hiatus, Professors Fenn and Koren suggested the change that resulted in the present wording of section 732.502(2) which now validates a will in Florida made by a nonresident only if the will was valid under the law of the place where executed. We are concerned that the present law creates a further and perhaps more serious hiatus than did the previous law because we now invalidate in Florida those wills that were valid under the place of the testator’s domicile either at the time of execution or at the time of death, but invalid under the law of the place of execution.

Initially, we might consider the execution of such a will to be an extraordinary occurrence but after further reflection we think not. Apparently Professors Fenn and Ko-ren suggested a change in the law to its present state on the presumption that a testator seeking legal advice in making a will would probably be advised to execute it in accordance with the law of the place of execution, and that a testator acting without legal advice would execute a will according to the law of his domiciliary state regardless of the law of the place of execution because of familiarity with the law of the testator’s place of residence. See Fenn and Koren, supra, at 18 n. 120, 19 n. 125. After considerable reflection, we must disagree with the presumption of Professors Fenn and Koren.

They did, however, recognize that the broader language of the Uniform Probate Code might be needed to validate a will that did not conform to the law of the place of execution or to the Florida law, but did conform to the law of the testator’s domicile. We agree and commend the language of the Uniform Probate Code, section 2-506, to the Florida legislature as we feel it may well be that a testator executing a will, with 6r without legal advice, in a state other than the state of domicile would more often than not purposely execute the will so as to conform to the law of the domicile rather than the law of. the state of execution or other state.

We cannot ignore that in a fluid society such as we live in there are many people who reside in one state but often, because of proximity or preference, cross over state lines to do business or seek professional advice or treatment. We also cannot overlook the possibility that many people seeking legal advise or services may obtain that service free or at reduced cost from a relative or close friend who practices law in another state. We further cannot accept the premise that regardless of the reason for crossing over the domiciliary state line to make and execute a will, the testator would be advised to execute the will according to the law of the place of execution rather than the place of the testator’s domicile when the law of the two places differ. We believe that most competent lawyers acting in the best interests of their clients would advise such a testator to execute the will where it was intended to be effective, normally the place of domicile. In that event the language of the Uniform Probate Code would seem to be desirable in Florida to validate such a will of a nonresident.

REVERSED and REMANDED for treatment consistent herewith.

SCHEB, C. J., and RYDER, J., concur.

      . Uniform Probate Code, section 2-506:
      A written will is valid if executed in compliance with Section 2-502 or 2-503 or if its execution complies with the law at the time of execution of the place where, the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place or abode or is a national.

      . Florida Statutes, section 732.502(2) (Supp. 1974):
      Any will, other than a holographic or nuncu-pative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the testator resided at the time of execution.


author: PER CURIAM.

text:
    Norman MINTON, Vernon Minton, Laurin Minton, Charles Minton and John Minton, d/b/a Minton’s Dump of Dade County, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. 80-2234.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Robert L. Shevin and Jose A. Bolanos, Miami, for appellants.
    Randall E. Denker, Tallahassee, for ap-pellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The order of the circuit court granting appellee’s request for a permanent injunction in connection with a dump site operated by appellants is affirmed. This court’s order of December 11, 1980, staying the order of the circuit court granting the injunction, is hereby vacated. No petition for rehearing will be entertained and the mandate will issue forthwith.

Affirmed.


text:
    STATE of Louisiana v. Nelson Ray CHARLES.
    No. 64507.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
    Vernon Joseph Jeansonne, Lake Arthur, for defendant-appellant,
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., for plaintiff-appellee.
   PER CURIAM.

On November 21, 1979, 377 So.2d 344, we rendered a decision in this matter, addressing all assigned errors in the formal opinion and in an appendix designated as “Not for Publication.” Upon review we found no grounds for reversal of defendant’s conviction and sentence with the exception of those assignments relating to the trial court’s refusal to conduct an evidentiary hearing on allegations in a motion for new trial that threats to certain members of the jury during the course of the trial had made it impossible for defendant to receive a fair trial. In conclusion we decreed that “the case is remanded to the trial court for an evidentiary hearing to determine the nature of the threats to the jury, which jurors were threatened, and whether the entire jury knew of the threats.” We now amend that decree to clearly indicate the intent of the majority of this Court:

Amended Decree

Since we find no error with the exception of the trial court’s failure to hold an eviden-tiary hearing on the motion for a new trial, it is not necessary at this time to reverse defendant’s conviction and sentence. See State v. Hills, 354 So.2d 186 (La.1977); State v. Simmons, 328 So.2d 149 (La.1976). Rather the case is remanded to the trial court for an evidentiary hearing to determine the nature of the threats to the jury, which jurors were threatened, and whether the entire jury knew of the threats. We reserve to the trial court the power to grant a new trial should it find that the evidence adduced at this hearing so requires. If, on the other hand, after the taking of evidence, the trial court denies the motion for a new trial, the right to appeal from such a ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence are affirmed.

The case is remanded to the trial court for further proceedings in accordance with this opinion.

         Judge Paul B. Landry, Jr., Retired, sat by ■ assignment as Associate Justice Ad Hoc upon this case.

      . Because we have this date amended the decree, the time within which to apply for rehearing is reinstated. See La.Sup.Ct. Rules, Rule 9.


author: CALOGERO, Justice.

text:
    State of Louisiana IN the INTEREST OF Robin SAPIA. State of Louisiana IN the INTEREST OF Tod REDDICKS.
    Nos. 86-C-1981, 80-C-1985.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William G. Davis, for applicant in both cases.

      Steven E. Adams, Charles F. Castille, Dept, of Health and Human Resources, Baton Rouge, for applicant in No. 80-C-1981.
    William C. Credo, III, Metairie, for respondents in both cases.
    Denis P. Ganucheau, Harahan, for respondents in No. 80-C-1981.
    Otha Curtis Nelson, Sr., Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for applicants in No. 80-C-1985.
    Samuel B. Stephens, Gretna, for respondents in No. 80-C-1985.
   CALOGERO, Justice.

These two cases have been consolidated because they involve identical legal issues, that is, whether the Louisiana Department of Health and Human Resources or the juvenile court has the ultimate authority for the placement of a child adjudged to be in need of care or supervision, and whether the Department of Health and Human Resources is financially responsible for such a child when placed in a private facility by a juvenile court judge. For the reasons which follow, we hold that the juvenile court has the ultimate authority for the placement of such children; however, where the children are placed in a private facility by the judge, there is no statutory authority for requiring the Department of Health and Human Resources to pay for their care and treatment.

In the Sapia case, Robin Sapia was adjudged to be a child in need of care under C.J.P. art. 13(14) and committed to Coliseum House, a private facility, under the authority of C.J.P. art. 85, with custody of the child being assigned to the Administrator of Coliseum House. It was further ordered that all expenses for the housing, care and treatment of Robin in Coliseum House be paid by the State of Louisiana through the Department of Health and Human Resources.

In the Reddicks case, Tod Reddicks was adjudged a child in need of supervision pursuant to C.J.P. art. 13(13) and, under C.J.P. art. 84, placed in Brentwood Hospital, a private facility, with the concurrent order that the State, through the Department of Health and Human Resources, assume financial responsibility for the treatment of Tod at Brentwood.

The Department of Health and Human Resources argues that the responsibility for placement, care and treatment of juveniles adjudged in need of care or supervision has been statutorily placed with them under R.S. 13:1580, and that the Department is only financially responsible for such children as are assigned to their custody and placed by them.

R.S. 13:1580, relied on by the Department, provides:

“Notwithstanding any other provision of law to the contrary, including but not limited to any provision of the code of juvenile procedure, when a child is referred to the Department of Health and Human Resources for care and treatment, and when such care and treatment are to be provided in a setting other than his own home or the home of a relative, the child shall be assigned to the custody of the Department of Health and Human Resources, rather than to a particular institution or facility. This provision for the assignment of custody shall apply regardless of whether the care and treatment are provided directly by the Department of Health and Human Resources or through purchase of service arrangements for which the Department of Health and Human Resources provides funding. The Department of Health and Human Resources shall have authority to select from the resources that are available the types of services and service setting most appropriate to the child’s needs and to place the child in that setting.”

It is clearly provided by the above statute that when a child is referred to the Department of Health and Human Resources for care and treatment he is to be assigned to their custody, and once given custody of the child, the Department then has the authority to select the appropriate placement facility and to place the child accordingly. R.S. 36:258 was enacted in the same legislative session, presumably to assist in the implementation of the above provision by creating a “client placement division” within the Department of Health and Human Resources.

However, C.J.P. arts. 84 and 85, also enacted in the same legislative session, (See footnotes 2 and 4 for the text)' give the juvenile court the authority to place the child adjudged in need of care or supervision in the custody of the person or agency it determines will best serve the interests of the child. (Of course, prior to the enactment of these articles, the court had this same authority under'R.S. 13:1580.)

The Department of Health and Human Resources argues that R.S. 13:1580 and CJ.P. arts. 84 and 85 are in conflict, giving both the Department and the court authority to place a child adjudged in the need of care or supervision, and that R.S. 13:1580 should prevail, giving the Department the ultimate authority for placement, because it specifically provides that it is an exception to the Code of Juvenile Procedure and because it is the later legislative enactment.

C.J.P. arts. 84 and 85 were enacted by Act No. 172 of 1978 and approved by the Governor on June 6,1978. R.S. 13:1580 was enacted by Act No. 786 of 1978 and approved by the Governor on July 17, 1978. Both statutes became effective on the same date, January 1, 1979. It is well settled that where two acts relating to the same subject are passed at the same legislative session, there is a strong presumption against implied repeal, and they are to be construed together, if possible, so as to reconcile them, giving effect to each, unless there is a clear conflict between them which must be resolved. Marquette Cement Manufacturing Co. v. Normand, 249 La. 1027, 192 So.2d 552 (1966); City of New Orleans v. Board of Supervisors, 216 La. 116, 43 So.2d 237 (1949). Where there is a direct conflict, the last statute in order shall prevail. State v. Bosworth, 373 So.2d 152 (La. 1979); State v. St. Julian, 221 La. 1018, 61 So.2d 464 (1952).

In the present case, there is no such conflict. C.J.P. arts. 84 and 85 give the juvenile court the power and authority to assign custody of a child adjudged in need of care or supervision to any person or agency, whether public or private, which it deems will serve the best interest of the child. R.S. 13:1580 gives the Department of Health and Human Resources the authority to place a child in the facility which it determines will serve the child’s best interests where the child has been initially referred to the Department for treatment and assigned to their custody by the juvenile court. Therefore, the juvenile court judge initially determines where custody of the child shall be assigned. Once the judge determines the custody of the child should be assigned to the Department of Health and Human Resources, and so assigns custody of the child, the Department then has the authority to determine where the child should be placed. If the court determines that the child is not being properly cared for it may remove custody from the Department and place it elsewhere.

This interpretation is further supported by R.S. 13:1580.2, a succeeding provision to R.S. 13:1580 and passed in the same legislative session, which gives the court authority to periodically review the status of all children whose custody it has placed in the Department. R.S. 13:1580.2 provides:

“The Department of Health and Human Resources shall, whenever it has been assigned custody of a child by judicial order, file a written report to the court on the status of the child six months after the initial placement of the child and every twelve months thereafter. This report shall be filed with the court which placed the child in the custody of the Department of Health and Human Resources. The court shall consider such reports and may hold hearings on the status of the child for the purpose of determining whether the child should remain in the care and custody of the Department of Health and Human Resources, should be returned to the parent, tutor, guardian, or relative, or should receive some alternative program of care, support and supervision.”

This provision requires that the Department of Health and Human Resources make periodic reports to the court on every child whose custody has been assigned to the Department by judicial order. It further provides that the court has the power to review the status of these children and to withdraw custody from the Department and place the child elsewhere if it determines such action is appropriate. These provisions clearly imply that the court, rather than the Department, has the superi- or authority with respect to child placement.

An interpretation giving the Department superior authority to determine, in all instances, where children adjudged in need of care or supervision should be placed, would render the above provision meaningless. There would be no reason to require judicial review of the children’s status if the court did not have the authority to remove custody from the Department and place the child elsewhere.

Therefore, we conclude that the juvenile court has the authority to place custody of a child adjudged in need of care or supervision in a private facility if it deems such placement to be in the best interest of the child. Only where the custody of the child is initially assigned by the judge to the Department of Health and Human Resources may the Department make the determination as to where the child should be placed. Thus, the judge in both the Sapia case and the Reddicks case, acted within his statutory authority in placing the children in private facilities rather than state facilities since custody, in neither case, had been assigned to the Department of Health and Human Resources.

The second question presented in this case, and actually the more significant one, is whether the juvenile court judge, once he has assigned custody of the child to a private facility, can order the Department of Health and Human Resources to pay for the care and treatment of the child.

R.S. 15:1081-1086 provide the sole statutory authority for payment by the Department of Health and Human Resources for the care and treatment of children in nons-tate operated facilities. R.S. 15:1081 provides:

“Notwithstanding any other provision of law to the contrary, the provisions of this Part [R.S. 15:1081-1086] shall serve as the sole statutory authorization under which the Department of Health and Human Resources shall make payments for the care and treatment of children in nonstate operated child caring agencies, child placing agencies, shelter care facilities, and maternity homes.” (Emphasis provided.)

Thus, unless payment by the Department for children placed in private facilities is authorized by the statutes which follow in that Part (sections 1081-1086 of Title 15), the Department cannot be ordered to pay for such care and treatment. In reviewing these statutory provisions, it is clear that, under R.S. 15:1085, the Department of Health and Human Resources is only authorized to make payments for the care and treatment of children in nonstate facilities where the children are placed there by the Department.

There are, of course, strong arguments to be made that the juvenile’s best interest is served by permitting the juvenile court to place the child adjudged in need of care or supervision in private facilities at the expense of the state or its appropriate department. Unfortunately, the Legislature, focusing on fiscal restraint and centralized supervision, has seen fit to do otherwise. Consequently, there is no statutory authority to support the juvenile court’s order requiring payment by the Department of Health and Human Resources for the care and treatment of these two children. We are not empowered to change the law or to apply such law as we might prefer, but rather must enforce clearly applicable statutes enacted by the Legislature.

Therefore, we conclude that the juvenile court cannot order the Department of Health and Human Resources to pay for the care and treatment of a child placed in a private facility where such placement was made by the court itself and not by the Department. Under the present legislation, the court erroneously ordered the Department of Health and Human Resources to make payments for the care and treatment of both Robin Sapia and Tod Reddicks in private facilities. Those rulings must be reversed.

We specifically do not address constitutional issues as they might apply to the case at hand because none have been raised here or in the courts below.

Decree

For the foregoing reasons, we find that the parts of the Court of Appeal judgments allowing the juvenile court judge to place the children in private facilities are correct. However, the parts of the judgments affirming the juvenile court’s order requiring the Department of Health and Human Resources to assume financial responsibility for the children are not. Rather than simply affirm in part and reverse in part, considering that the juvenile court judge may choose an alternate placement in light of our vacating his judgment ordering the Department of Health and Human Resources to pay, we simply vacate the judgments below and remand the case for further proceedings.

JUVENILE COURT AND COURT OF APPEAL JUDGMENTS VACATED; CASES REMANDED TO JUVENILE COURT.

      . C.J.P. art. 13(14) provides:
      “(14) ‘Child in need of care’ means a child:
      (a) Whose parent inflicts, attempts to inflict, or, as a result of inadequate supervision, allows the infliction or attempted infliction of physical injury or sexual abuse upon the child which seriously endangers the physical, mental or emotional health of the child;
      (b) Whose physical, mental or emotional condition is substantially threatened or impaired as a result of the refusal or neglect of his parent to supply the child with necessary food, clothing, shelter, medical care, counseling or education, or as a result of the parents’s neglect or imposition of cruel punishment; or
      (c) Who is without necessary food, clothing, shelter, medical care, education, or supervision because of abandonment by, or the disappearance or prolonged absence of, his parent, or because of any other reason.”

      . C.J.P. art. 85 provides:
      “A. In a case in which a child has been adjudicated to be in need of care, the court may:
      (1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child;
      (2) Place the child in the custody of a private or public institution or agency;
      (3) Commit a child found to be mentally defective to a public or private mental institution or institution for the mentally defective; or
      (4)Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.
      B. A child in need of care shall not be committed to the Department of Corrections.”

      .C.J.P. art. 13(13) provides:
      “(13) ‘Child in need of supervision’ means a child who needs care or rehabilitation because:
      (a) Being subject to compulsory school attendance, he is habitually truant from school or willfully violates the rules of the school;
      (b) He habitually disobeys the reasonable and lawful demands of his parents, and is ungovernable and beyond their control;
      (c) He absents himself from his home or usual place of abode without the consent of his parent;
      (d) He purposefully, intentionally and willfully deceives, or misrepresents the true facts to, any person holding a retail dealer’s permit, or his agent, associate, employee or representative, for the purposes of buying or receiving alcoholic beverages or beer, or visiting or loitering in or about any place where such beverages are the principal commodities sold or handled;
      (e) His occupation, conduct, environment or associations are injurious to his welfare; or
      (f) He has committed an offense applicable only to children.”

      . C.J.P. art. 84 provides:
      “A. In a case in which a child has been adjudicated to be in need of supervision, the court may:
      (1) Place the child in the custody of a parent or other suitable person on such terms and conditions as deemed in the best interest of the child and the public;
      (2) Place the child on probation on such terms and conditions as deemed in the best interest of the child and the public;
      (3) Assign the child to the custody of a private or public institution or agency;
      (4) Commit a child found to be mentally defective to a public or private mental institution or an institution for the mentally defective; or
      (5) Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.
      B. A child in need of supervision shall not be committed to the Department of Corrections.”

      . R.S. 36:258 provides in pertinent part as follows:
      “(3)(a) Within the office of human development, there shall be established a client placement division which shall have the responsibilities and authority including, but not limited to, the following:
      (i)To assess or arrange for the assessment of the needs of each client.
      (ii) To provide or arrange for the provision of comprehensive diagnosis and evaluation services as the needs of each client warrant.
      (iii) To develop comprehensive service plans for each client.
      (iv) To assign responsibilities for providing services, and for providing funding for such services.
      (v) To place clients in the setting most appropriate to the client’s needs including any nonresidential, community based residential, any institutional programs operated by the Department of Health and Human Resources, as well as programs operated by other public or private agencies with which the Department of Health and Human Resources enters into contractual or purchase of services arrangements.
      (vi) To periodically review the progress of clients, and modify the client’s service plan as warranted.
      (vii) To terminate services to the client, except that in the case of clients who have been placed in the custody of the Department of Health and Human Resources by judicial commitment or court order, the court of proper jurisdiction shall retain the authority to terminate custody by the Department of Health and Human Resources and to vest or revest such custody in another individual or agency.”

      . R.S. 15:1085 provides:
      “A. The Department of Health and Human Resources is hereby authorized to make payments, at the rates established under R.S. 15:1084, for the care and treatment of children placed by the Department of Health and Human Resources in child caring agencies, child placing agencies, maternity homes, and shelter care facilities which conform to the requirements of this Part.
      B. Payments shall be made on a monthly basis and shall represent reimbursements for services provided during the previous month. Participating agencies shall submit such information as the Department of Health and Human Resources may require to document claims for reimbursement.
      C. Participating agencies and facilities shall receive one and only one monthly payment from the Department of Health and Human Resources for services rendered to each child under this Part except for such adjustments as may be necessary to rectify previous inaccurate payments.” (Emphasis added.)


author: DENNIS, Justice.

text:
    Sidney BAZLEY v. Sordo TORTORICH, Aetna Life and Casualty Co., and Fireman’s Fund Insurance Companies.
    No. 67318.
    Supreme Court of Louisiana.
    Feb. 26, 1981.

      Melvin W. Mathes, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendant-applicant.
    Steven M. Koenig, Heisler, Wysocki & deLaup, John J. McCann, McCann and Volk, New Orleans, for plaintiffs-respondents.
    Mark C. Suprenant, Thomas J. Wyllie, Adams & Reese, New Orleans, Charles Ha-nemann, Henderson, Hanemann & Morris, Houma, John C. Combe, Jr., John G. Gomi-la, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Randall G. Wells, Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, Marvin C. Grodsky, Melvin W. Mathes, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, Felix R. Weill, Robert L. Roland, Watson, Blanche, Wilson & Posner, Baton Rouge, Wayne Shullaw, Harmon F. Roy, Mouton, Roy, Carmouche, Bivins & Kraft, Lafayette, amicus curiae.
   DENNIS, Justice.

This ease presents the question of whether the worker’s compensation statute, La.R.S. 23:1032 as amended by Act 147 of 1976, constitutionally makes compensation an employee’s exclusive remedy for a work-related injury caused by a co-worker, except for a suit based on an intentional tort. The trial court sustained an exception of no cause of action to plaintiff’s suit against his fellow employee because he alleged that the co-worker was guilty of negligence and not an intentional tort. The court of appeal reversed, holding that, to afford due process and equal protection of the laws, the worker’s compensation statute, as amended, must be interpreted to permit an employee the same remedy in tort against co-employees for negligently caused work-related injuries as he would have if injured by any other tortfeasor. We reverse the judgment of the court of appeal. The worker’s compensation statute was amended by Act 147 of 1976 to preclude suits by an employee to recover for work-related injuries from certain designated persons, including a fellow employee engaged at the time of injury in the normal course and scope of employment, unless his injury resulted from the co-worker’s intentional tortious act. The 1976 amendment does not deprive the plaintiff of due process of law, equal protection of law or access to the judicial process. It was duly adopted, in accordance with the Louisiana constitution.

Plaintiff, Sidney Bazley, a Jefferson Parish garbage worker filed suit against an unidentified co-employee truck driver, the co-employee’s insurer, Sardo Tortorich and Tortorich’s insurer as result of work-related injuries Bazley received when he was struck by Tortorieh’s car while he was mounting the back of a parish garbage truck. In his petition, as supplemented and amended, Bazley alleged that the accident was caused by his co-employee’s intentional acts in operating a garbage truck without a working horn, disregarding mechanical and electrical maintenance standards, failing to keep a lookout, failing to see what he should have seen, failing to stop in a safe place and failing to warn plaintiff of danger. Bazley did not allege, however, that the co-employee desired the consequences of his acts or believed that they were substantially certain to follow his acts.

The trial court sustained an exception of no cause of action to Bazley’s suit against the garbage truck driver on the ground that it constituted a negligence action against a co-employee based on a work-related injury in contravention of the exclusive remedy rule of the Compensation Act. The court of appeal reversed holding that compensation is an employee’s exclusive remedy against his employer but the statute constitutionally cannot be interpreted to bar his suit in tort against other persons. 380 So.2d 727 (La.App. 4th Cir. 1980). We granted certiorari. 383 So.2d 1263 (1980).

La.R.S. 23:1032, as amended by Act 147 of 1976, in pertinent part, provides:

“The rights and remedies herein granted to an employee ... on account of an injury . . ., shall be exclusive of all other rights and remedies . . . against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal . . .
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
“The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

We are called upon to decide (1) whether La.R.S. 23:1032, as amended, prevents an injured employee from seeking recovery in tort for a work-related injury negligently caused by his co-employee; and, if so, (2) whether the legislature may constitutionally expand the exclusive remedy rule to bar negligence actions by employees against tortfeasors other than employers.

1.

The exclusive remedy rule prevents an employee from seeking recovery in tort for a work-related injury negligently caused by his co-employee.

By Act 147 of 1976 the legislature enlarged the category of employee injuries for which workers’ compensation is the exclusive remedy. Formerly, the workers’ compensation statute provided that compensation was an employee’s exclusive remedy against his employer for a compensable injury, leaving him free to pursue other remedies against third persons. The amendment modified the exclusive remedy rule in two respects. First, it provided that for an unintentional injury compensation shall be the exclusive remedy, not only against the employer, but also against any principal, officer, director, stockholder, partner or employee of the employer or principal who was engaged at the time of the injury in the normal course and scope of his employment. Second, it provided that for an intentional act resulting in compensable injury the employee may exercise his right under the compensation act and pursue any other remedy available against the employer and other persons under general law.

The principal legislative aim of the 1976 amendment was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict. Although the legislative history is meager, accounts indicate that the amendment was enacted to provide employers relief from the cost of furnishing liability insurance to executive officers and other employees. Malone & Johnson, Workers’ Compensation, § 364 in 14 Louisiana Civil Law Treatise 155 (2d ed. 1980); The Work of the Louisiana Legislature for the 1976 Regular Session, 37 La.L.Rev. at 182 (1976). Before the amendment, the absence of a prohibition against tort suits against co-employees allowed injured workers to seek tort recovery from negligent executive officers and their liability insurers. E. g., Canter v. Koehring Co., 283 So.2d 716 (La.1973); Berry v. Aetna Cas. & Surety Co., 240 So.2d 243 (La.App.2d Cir. 1970), cert. denied 256 La. 914, 240 So.2d 374, cert. denied 401 U.S. 1005, 91 S.Ct. 7255, 28 L.Ed.2d 541 (1971). This avenue of recovery provoked considerable critical comment. Comment, 33 La.L.Rev. 325 (1973); Note, 34 La.L.Rev. 141 (1973); Note, 46 Tul.L.Rev. 352 (1971); The Work of the Louisiana Appellate Courts, 1973-74 Term — Insurance, 35 La.L.Rev. 415, 419 (1975). It was argued that, since the employer’s enterprise would in the end pay for the tort remedy, either directly or through insurance premiums for officers and employees, the result would be a denial to the employer of much of the practical advantage of the exclusive remedy provision. W. Malone, Louisiana Workmen’s Compensation Law and Practice, 1964 Supp. § 366 (1st ed. 1951). It was apparently for this reason that the legislature acted to close this avenue of recovery by adopting Act 147 of 1976.

In abolishing the executive officer suit, however, the legislature provided that the exclusive nature of the compensation remedy does not apply to intentional acts. After considering broader penalties that would have provided double benefits for an employer’s violation of a safety rule, failure to provide a safety device required by law, or gross negligence on the part of a supervisory employee, which caused injury, death or disease, Official Journal of the House of Representatives, June 4, 1976, H.B. 354, p. 20, our legislature chose to impose a sanction for intentional wrongs by making the exclusive remedy rule inapplicable to such acts. Because of the general practice of severely punishing intentional wrongdoers, which is widely accepted in the field of workers’ compensation, because of the received meaning and acceptance of the statutory language, and considering the object of the legislation, we conclude that the words “intentional act” mean the same as “intentional tort” in reference to civil liability.

In drawing a line between intentional and unintentional acts we believe the legislative aim was to make use of the well established division between intentional torts and negligence in common law. See W. Prosser, Law of Torts, §§ 7, et seq. (4th ed. 1971). The lawmakers probably perceived this distinction as entirely consistent with the division in civil law between offenses, which require an intention to injure, and quasi offenses, damages caused without intention to harm. See 2 M. Planiol, §§ 815, 823, 825, 827, Civil Law Treatise (11th ed. La.St.L.Inst. trans. 1959). Universally, harmful conduct is considered more reprehensible if intentional. As Holmes said, “Even a dog distinguishes between being stumbled over and being kicked.” Holmes, The Common Law, 3 (1881). There is a definite tendency to impose greater responsibility upon a defendant whose conduct has been intended, to do harm, or morally wrong. W. Prosser, Law of Torts, § 7 (4th ed. 1971); Bauer, The Degree of Moral Fault as Affecting Defendant’s Liability, 1933, 81 U.Pa.L.Rev. 586; Note, 1962, 14 Stan.L.Rev. 362.

Many states provide an employee an election to sue in tort, or a percentage increase in compensation, as the penalty for his intentional injury by the employer or for other forms of employer misconduct. 2A Larson, The Law of Workmen’s Compensation, §§ 69 et seq. (1976). Even in jurisdictions with no statutory penalty for employer misconduct, intentional injury inflicted upon an employee by the employer, its alter ego, or in some instances its supervisory employee, may be made the subject of a common law action for damages on the theory that, in such an action, the employer will not be heard to say his intentional act was an “accidental” injury and so under the exclusive provisions of the compensation act. 2A Larson, §§ 68, et seq. See also, Miller v. Keating, 349 So.2d 265 (La.1977); Le Brane v. Lewis, 292 So.2d 216 (La.1974); Malone & Johnson, Workers’ Compensation, § 365 (2d ed. 1980). Courts in most states imposing such statutory or common law penalties for intentional misconduct have required the commission of a genuine intentional tort and have refused to stretch liability to include negligence, recklessness, or constructive intent. 2A Larson, Workmen’s Compensation, §§ 68.13, 69.20.

Plaintiff ingeniously has proposed, however, that the concept “intentional act” should be equated with “voluntary act.” He interprets “intentional” to mean merely that before the actor acted he directed his mind on his own physical movement and not on the consequences of his act. Under his interpretation an injured employee may sue in tort on any voluntary act setting in motion events leading to his injury regardless of whether the harm appeared likely or was even apparent at all to the actor. For example, in the present case, plaintiff contends he alleged an intentional act triggering his escape from the compensation system when he averred that the defendant garbage truck driver intentionally did not blow his horn to warn plaintiff of an oncoming motorist, although plaintiff concedes that the driver did not intend for harm to come to him. Plaintiffs interpretation is incongruous, not only because it departs from the almost universal practice of differentiating between intentional and unintentional harms, prevalent in most workers’ compensation programs, but also because it ignores the accepted usage of the statutory terms in this state and generally, and his construction would thwart the legislative purpose.

Although the theorists have not always agreed, the words “act” and “intent” now have generally accepted meanings in the fields of tort and criminal law. The word act is used to denote an external manifestation of the actor’s will which produces consequences. There cannot be an act subjecting a person to civil or. criminal liability without volition. Therefore, a contraction of a person’s muscles which is purely a reaction to some outside force, such as a knee jerk or the blinking of the eyelids in defense against an approaching missile, or the convulsive movements of an epileptic, are not acts of that person. Restatement (Second) of Torts, American Law Institute § 2 (1965); La.R.S. 14:8 comment. See also, Prosser, supra, § 8; LaFave and Scott, Criminal Law, § 25 (1972). The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Restatement (Second) of Torts, supra, § 8; LaFave and Scott, Criminal Law, § 28 (1972); see also, Prosser, supra, § 8.

Our criminal and civil codes manifest legislative acceptance of these received meanings of “act” and “intent.” As the criminal code articles and reporters’ comments make clear, “act” refers to an external manifestation of will which must be voluntary, and “intent” is present when the offender either desires the consequences of his act or when he knew that the consequences were reasonably certain to result from his act. La. R.S. 14:8,10 and Reporter’s Comments. Although the civil code does not contain definitions of the terms, the word “act” is used many times and must be read in light of the code’s underlying civilian concepts. See, e. g., Articles 2815-17. In Article 2315, for example, the word act is used to refer to both offenses and quasi offenses. As we noted above, the difference between these two acts of fault is that offenses require an intention to injure and quasi offenses are committed without intention to harm. 2 M. Planiol, §§ 815, 823, 825, 827. Thus, we see again a basic distinction between intentional and unintentional acts and use of intent in reference to the consequences of the act, rather than the act itself.

Our jurisprudence likewise reflects approval of the general notions of act and intent. This Court as early as 1936, approvingly recited the following: “It seems clear that, in the absence of language expressing a contrary meaning, an ‘act’ involves an exercise of the will. It signifies something done voluntarily.” Heiman v. Pan American Life Ins. Co., 183 La. 1045, 165 So. 195 (1936). Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional. See Freeman v. Bell, 366 So.2d 197 (La.App. 2d Cir. 1978, writ denied, 369 So.2d 151 (1979)); Monk v. Veillon, 312 So.2d 377 (La.App. 3d Cir. 1975). See also Langlois v. Eschet, 378 So.2d 189, 190 (La.App. 4th Cir. 1979) (word “intended” synonymous with having in mind as an end or aim, implying mind is directed to some definite end), von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283 (La.App. 1st Cir.), writ denied 362 So.2d 794, 802 (1978) (if person has such a lack of reason, memory, and intelligence that prevents him from comprehending the nature and consequences of his acts, he cannot intentionally inflict injury).

Plaintiff’s suggested interpretation of “intentional act,” equates the term with “voluntary act” and robs it of any reference to the actor’s state of mind concerning the consequences of his act. It is most unlikely the legislature intended the words as plaintiff suggests, rather than in their most usual signification and in the sense in which the lawmakers have used them in other legislation.

Furthermore, plaintiff’s interpretation would thwart the legislative objective of broadening the class of defendants to be granted tort immunity. Instead, Act 147 of 1976 would have the reverse effect of restricting the exclusive remedy rule to claims of employees injured without any other person’s fault. Any employee could bring suit and recover under Article 2315 by pleading and proving that his injury was negligently caused by the voluntary conduct of his employer or co-employee. Since there cannot be an act subjecting a person to liability for negligence without volition, the exclusive remedy rule as interpreted by the plaintiff would abolish all tort immunity for employers and co-employees. In the absence of a clearer expression of legislative design to curtail drastically the workers’ compensation system, we cannot attribute such aims to the lawmakers.

For these reasons, we construe the legislation under review as providing that the exclusive remedy rule shall be inapplicable to intentional torts or offenses. The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App.1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3d Cir. 1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir. 1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir.) writ denied 386 So.2d 359 (La.1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App. 1st Cir. 1979), cert. denied 382 So.2d 164 (1980); Frazier v. Woodward, 378 So.2d 209 (La.App. 4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979); Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App. 1st Cir.) writ denied, 362 So.2d 578 (La.1978). Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the. law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A, Comment; Prosser, supra, § 8.

Applying the statute to the facts set forth in plaintiff’s petition, we conclude that the petition fails to state a cause of action in intentional tort or offense. The pleadings do not express or imply that the co-employee garbage truck driver desired the consequences of his acts or omissions or that he believed the consequences were substantially certain to result from them.

2.

The exclusive remedy rule does not violate plaintiff’s rights to substantive due process and equal protection of the laws or other constitutional safeguards.

Bazley argues that the exclusive remedy rule violates several constitutional safeguards. First, he contends that the guarantees of substantive due process and equal protection are offended by arbitrary statutory classifications having no rational purpose which deprive some but not all employees injured by the negligence of another person of their tort remedies. Secondly, he contends for the same reason that he has been deprived of his state constitutional right to access to the courts. Finally, he urges us to declare Act 147 of 1976 unconstitutional because it was passed without a title indicative of its object.

The constitutions of the United States and this state impose no obligation on the legislature to provide injured employees with a particular kind of remedy for loss of income and medical expenses. But when a legislature acts to alleviate some of the suffering and hardships of industrial accidents, the manner in which it provides for relief is subject to constitutional limitations. Bazley’s claim is that the legislature must accord equal treatment to all employees with regard to work-related tort claims, and may not evidence a policy preference by allowing only those employees injured by strangers to the employer’s enterprise to pursue their claims outside the compensation system. This challenge to the classifications established by the compensation statute presents a question arising under the Equal Protection Clause of the Fourteenth Amendment and the Louisiana constitution.

The basic framework of analysis of such a claim is well settled. We must decide, first, whether the legislation operates to the disadvantage of some suspect class or impinges on a fundamental right explicitly or implicitly protected by the constitution, thereby requiring strict judicial scrutiny. If not, the legislative scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); San Antonio School District v. Rodriguiz, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387-88 (La.1978); Everett v. Goldman, 359 So.2d 1256 (La.1978); Succession of Robins, 349 So.2d 276 (La.1977).

This case involves no suspect class. An injured employee entitled to compensation but seeking more complete recovery by tort suit does not come within the limited category of disadvantaged classes so recognized by the Supreme Court. The statute does not classify persons on the basis of race, alienage, national origin, or discriminate against discrete and insular minorities. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); United States v. Carolene Product Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938).

Nor does the statute limit the exercise of a fundamental constitutional right. The list of rights which have been found to be fundamental may be divided as follows: Freedom of expression and association, NAACP v. Alabama ex rel Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Right to vote and participate in the electoral process, Harper v. Virginia Board of Election, 383 U.S. 663, 89 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Right to interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Right to fairness in the criminal process, e. g., Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Right to fairness in procedures concerning governmental deprivations of life, liberty or property, e. g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Right to privacy, e. g., Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Pierce v. Society of Sisters, 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). See generally, Nowak, Rotunda & Young, Constitutional Law, 418 (1978). This list is not permanently exhaustive, but the right Bazley seeks to exercise is not within these fundamental categories.

As with the use of the equal protection clauses, in review of statutes for substantive due process, cases involving fundamental civil rights are to be distinguished from cases involving economic and social welfare legislation. In a case merely involving general police power or social welfare legislation such as our workers’ compensation statute, the test of substantive due process is whether the regulation is reasonable in relation to the goal to be attained and is adopted in the interest of the community as a whole. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Everett v. Goldman, 359 So.2d 1256 (La.1978).

Applying these principles, we conclude that the amended exclusive remedy rule of our workers’ compensation statute can be sustained under the less demanding test of rationality that applies in the absence of a suspect classification or the impingement of a fundamental right. The legitimate articulated state purpose served by the workers’ compensation statute “will disclose that its purpose is primarily to ‘abolish the common-law system relating to injuries to employees as inadequate to meet modern conditions and conceptions of moral obligations, and substitute therefor a system based on a high conception of man’s obligation to his fellow man * * *.’ By that system the loss incurred as a result of the employee’s injury is recognized ‘as an element of the cost of production to be charged to the industry, rather than to the individual employer, and liquidated in the steps ending with consumption, so that the burden is finally borne by the community in general. * * ’” Puchner v. Employers Liability Assur. Corp., 198 La. 922, 931, 5 So.2d 288 (1941); see also, 1 Larson, Workers’ Compensation, § 1. The exclusive remedy rule extension is reasonable in relation to this goal and rationally furthers it. Although it is debatable and sharply contested, defendants reasonably contend that the 1976 amendment promotes the ends of the Act by relieving employers of the burden of liability insurance premiums for their officers and employees, thereby providing a more effective mechanism for providing cash-wage benefits and medical cost to victims of work-connected injuries, and for placing the cost of these injuries ultimately on the consumer. See, 1 Larson, Workers’ Compensation, § 1, and that it will promote peace and harmony among employees by providing them with immunity from co-workers’ tort claims. See 2A Larson, Workers’ Compensation, § 72.20.

Bazley contends that the classifications of the exclusive remedy rule which grant tort immunity to executive officers, employees, and other persons related to the employer’s enterprise are not rationally related to the legislative purpose. He argues that each employer in every instance will not be induced or compelled by collective bargaining or competition for management personnel to purchase liability insurance for _the individuals granted immunity. However, in the area of economics and social welfare, a legislature does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369, 377 (1911). “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730, 734 (1913). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

We do not decide that the legislature’s formulation of the exclusive remedy rule is wise, that it best fulfills the relevant social and economic objectives that Louisiana might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the diffi-Éult economic and social problems presented y workers’ compensation programs cannot yroperly be resolved by this Court. Cf. Dandridge v. Williams, supra, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491. Our federal and state constitutions may impose certain procedural safeguards upon systems of workmen’s compensation, but they do not empower this Court to second-guess legislators who are charged with the heavy responsibility of regulating the social obligations that exist between the employee, the employer, and the public. Accordingly, we conclude that Bazley’s equal protection and due process claims are without merit.

The state constitutional guarantee of access to courts is Article 1, § 22 of the Louisiana Constitution, which reads:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him and his person, property, reputation, or other rights.”

This provision, like the Fourteenth Amendment to the United States Constitution, protects an individual’s access to the judicial process. Where access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery on any system or classification which is not totally arbitrary. Everett v. Goldman, 359 So.2d 1256 (La.1978); see Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Jones v. Union Guano Co., 264 U.S. 171, 44 S.Ct. 280, 68 L.Ed. 623 (1924). The legislation under review does not substantially alter a claimant’s access to the judicial process, and, therefore, it does not contravene the access to courts guarantee of our state constitution. Bazley’s complaints that he has been denied the right to sue in tort for full recovery for his injuries, and that he is discriminated against with respect to other plaintiffs who may bring such suits, actually raise the same substantive due process and equal protection issues which we have already resolved. See also Perez v. Continental Casualty Co., 367 So.2d 1284 (La.App. 3d Cir. 1979); Branch v. Aetna Casualty & Surety Co., 370 So.2d 1270 (La.App. 3d Cir. 1979).

Finally, Bazley contends that Act 147 of 1976 was enacted in contravention of Article 3, § 15(A) of the Louisiana Constitution of 1974 which, in pertinent part, provides:

“Every bill ... shall be confined to one object. Every bill shall contain a brief title indicative of its object.”

The purpose of the one-object requirement is to restrict a legislative act so that a legislator will not have to consider the validity of two unrelated objects in deciding how to vote on a bill. State v. Cooper, 382 So.2d 963 (La.1980); State v. Dooley, 261 La. 295, 259 So.2d 329 (1972). If all the parts of a statute have a natural connection and reasonably relate, directly or indirectly, to one general and legitimate subject of legislation, the statute is not considered as being open to the objection of plurality, no matter how extensively it deals with the details looking to the accomplishment of the main legislative purpose. State v. Cooper, supra; Wall v. Close, 203 La. 345, 15 So.2d 19 (1943).

The purpose of the indicative title requirement is to give the legislature and the public fair notice of the scope of the legislation. The requirement is designed to defeat deceitful practices of misleading the legislature into the passage of provisions not indicated by the title of the bill. State v. Welkner, 259 La. 815, 253 So.2d 192 (1971).

Act 147 of 1976 is confined to one object because all of its parts have a natural connection and reasonably relate to one general and legitimate subject of legislation, the expansion of the exclusive remedy rule and the concomitant elimination of some third party actions.

The title of Act 147 of 1976 provides that it is an act “[t]o amend and reenact sections 1032 and 1101 of Title 23 of the Louisiana Revised Statutes of 1950 relative to workmen’s compensation, to provide with respect to the exclusive nature of the compensation remedy in cases of injury or compensable sickness or disease and to provide with respect to third party actions and to otherwise provide with respect thereto.” The title is indicative of the legislative object because it gives the public fair notice of the scope of the legislation.

We find meritless Bazley’s contention that Act 147 of 1976 is not germane to the object of the original compensation act, Act 20 of 1914, the title of which provides as follows:

“An act prescribing the liability of an employer to make compensation for injuries received by an employee in performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in certain trades, business or occupations, abolishing in certain cases the defenses of assumption of risk, contributory negligence and negligence of a fellow servant in actions for personal injury and death, establishing a schedule of compensation, regulating procedure for the determination of liability and compensation thereunder and providing for methods for payments of compensation thereunder.”

It is not fatal to the legislation that the title of the original act refers only to the employer’s liability and not to the liability of third persons. It is not the purpose of the constitution to require that the title be an index to the contents of the act, or that every end and means convenient or necessary for the accomplishment of the general object of the act be set out at length in the title, but it is deemed sufficient, under the constitution, that the act contain but one object and that the object be fairly stated, although it be expressed in general terms, in the title of the act. All things proper or necessary to carry out the general object, so stated in the title, are deemed to be within the scope of the title. State v. Welkner, 259 La. 815, 253 So.2d 192 (1972); Southern Hide Co. v. Best, 145 So. 682, 176 La. 347 (1933).

For the reasons assigned, the judgment of the court of appeal is reversed, the judgment of the trial court is reinstated, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

      . However, the immunity from civil liability shall not extend to the liability of any partner in a partnership formed for the purpose of evading any of the provisions of the section. La.R.S. 23:1032, as amended.

      . The trend in the nation, however, is toward expansion of immunity from common law suit. About one-third of the compensation statutes now grant immunity only to the employer, compared with a majority that did in 1976. Compare 2A Larson, 1980 Supplement § 72.10 with 2A Larson (main text 1976 § 72.10).


author:
DENNIS, Justice.
     BLANCHE, Justice MARCUS, Justice CHIASSON, Justice Ad Hoc

text:
    STATE of Louisiana v. George CLAIBORNE.
    No. 80-KA-2084.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Dwight Doskey of Orleans Indigent Defender Program, William A. Roe, Student Practitioner and William J. O’Hara, III, Supervising Atty., Loyola Law Clinic, New Orleans, for defendant-appellant.
   DENNIS, Justice.

The issue in this case is whether a defendant is denied his constitutional right to a full voir dire examination of a prospective juror when the trial court sustains a prosecution challenge for cause without affording defense counsel an opportunity to examine the venireman. We hold that, when a defense attorney is precluded from voir dire examination of a prospective juror which may have demonstrated the juror’s ability to render an impartial verdict, the granting of a prosecution challenge for cause by the trial court deprives an accused of his right to full voir dire examination.

Defendant, George Claiborne, was convicted by jury of possession of a firearm by a convicted felon, La.R.S. 14:95.1, and sentenced to three years’ imprisonment at hard labor. On appeal he urges three assignments of error. His complaint that he was deprived of his constitutional right to a full voir dire examination of prospective jurors has merit and requires reversal of his conviction and sentence.

During the voir dire examination the trial court granted the prosecution’s motion to excuse a prospective juror for cause and refused to allow the defense attorney to examine him. We excerpt that portion of the voir dire:

[PROSECUTING ATTORNEY]: Will anyone here hold the State to a greater burden of proof than that? You, sir, can you do that?
BY JUROR # 160: I don’t know if I’m saying this at the right time, but as far as this [inaudible] I don’t think I could be a good witness because . . .
BY THE COURT: A little louder, sir.
BY JUROR # 160: There’s been instances, you know, [inaudible] . . .
BY THE COURT: You don’t think you could give a fair verdict because what? I didn’t hear you. I’ve got to hear you.
BY JUROR # 160: There could be some doubt in my mind. The fact that I’ve known situations where police planted a gun on somebody . . .
BY THE COURT: Planted a gun on somebody?
BY JUROR # 160: Right. She mentioned a situation that the guy ... I heard her say this two times that he want to prove that the gun is not his. He was only in possession of the gun. So I get the impression that the gun didn’t belong to him or it was not registered to him.
BY THE COURT: Well, you can’t get the impression until you hear the evidence.
[PROSECUTING ATTORNEY]: What I said, Your Honor, was that it’s not necessary to prove ownership.
BY THE COURT: That’s right.
[PROSECUTING ATTORNEY]: Only that he was in possession.
BY THE COURT: Right.
[PROSECUTING ATTORNEY]: Are you saying that you want possession to be equal to ownership, that it would take ownership before you would . ..
BY JUROR # 160: It could be possible
BY THE COURT: Well, if they prove to you that the police framed this guy and put their gun in his pocket, well, you cut him loose. But if they don’t prove that the police slipped the gun wherever it was, then that’s a horse of a different matter. Then you’ve also got to find out if he’s guilty of this other offense, aggravated burglary.
[PROSECUTING ATTORNEY]: Battery.
BY THE COURT: If it was proved, you know.
[PROSECUTING ATTORNEY]: Sir, would you be less than fair to the State based on the police testifying?
BY JUROR # 160: I wouldn’t be unfair to anyone, but I mention the fact that it might be on my mind.
[PROSECUTING ATTORNEY]: Yes, sir, I appreciate that. Thank you very much. Well, you understand the definition of possession of arms, and you understand the things that are necessary to prove that?
BY JUROR # 160: Yes.

After a short period during which other prospective jurors were being polled on their beliefs, the state returned to questioning the juror:

[PROSECUTING ATTORNEY]: Sir, let me ask you one question. But as far as police officers testifying would you look at at [sic] like you would anybody else?
BY A JUROR: Yes, I mentioned about this particular case here. I didn’t say anything about police officers. I said there could be some doubt in my mind.
[PROSECUTING ATTORNEY]: What I’m trying to get down to is that if I put on a police officer and he’s going to be the one testifying about the crime would you disbelieve what he says, automatically?
BY THE JUROR: No.
[PROSECUTING ATTORNEY]: So you can look at him and not let your other experiences ...
[DEFENSE ATTORNEY]: Your Honor, this has been asked and answered about four times now.
[PROSECUTING ATTORNEY]: No, sir, I’m asking it a little differently. I am trying to ask him if it’s going to interfere with him judging the police officer.
BY THE JUROR: Now, you asked me about this at first. I think I told you that it’s possible that there would be some doubt in my mind. Now, that’s about ... I can’t.
[PROSECUTING ATTORNEY]: But now I’m asking you would you let it interfere.
BY THE JUROR: Anytime you have doubt I guess that’s an interference. Wouldn’t it be a interference if you there’s a possibility that you could have a doubt? Would that be a interference?
BY THE COURT: Well, would that doubt would be predicated on what you hear and see here, or is that doubt going to be predicated on what you believe universally? We’re talking about what you’re going to see and hear here, whatever it is. I don’t know what it is. Just what you see and hear here.
BY THE JUROR: Okay, yes, all right.
BY THE COURT: Whatever doubt or whatever you have in your mind would that be based on what you see and hear here? That would satisfy it.
[PROSECUTING ATTORNEY]: Or, would that doubt interfere with what he sees and hears here today, would be the question.
BY THE JUROR: Well, I’ve already said that. I don’t know.
[PROSECUTING ATTORNEY]: I just thought you might be able to put it aside.
BY THE JUROR: Well, I don’t know if I can or not. I merely stated the fact when you asked me if it would interfere. Well, I don’t know.
[PROSECUTING ATTORNEY]: Your Honor, I would ask for a challenge for cause.
BY THE COURT: I’ll excuse him.
[DEFENSE ATTORNEY]: I’d like to traverse.
BY THE COURT: Oh, I don’t think we need to hear any more. I’ve had enough.
[DEFENSE ATTORNEY]: Note an objection.

The state used all of its peremptory challenges. Defendant contends that the erroneous refusal to allow examination of the juror by defense attorney to demonstrate the juror’s impartiality resulted in the state being allowed more peremptory challenges than permitted by law.

Article 1, § 17 of the 1974 Louisiana Constitution provides that the accused shall have a right to “full voir dire examination” of prospective jurors. Even before the effective date of this innovative constitutional language see Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 55 (1974), this court stated that the trial judge’s exercise of sound discretion in ruling on a juror’s qualifications will be sustained unless unwisely exercised, providing that he allows considerable latitude in the examination of jurors. See, e. g., State v. Rogers, 241 La. 841, 132 So.2d 819 (1961); State v. Brazile, 229 La. 600, 86 So.2d 208 (1956). After adoption of the 1974 Louisiana Constitution, this court has held that the accused’s right to “full voir dire examination” includes the right to make such inquiries of prospective jurors as will enable him to secure his constitutional rights, not only by showing grounds .for challenges for cause, but also by eliciting facts which will empower him intelligently to exercise his right of peremptory challenge, State v. Boen, 362 So.2d 519 (La.1978); State v. Jackson, 358 So.2d 1263 (La.1978); State v. Hills, 241 La. 345, 129 So.2d 12 (1961), the right to address, hear and observe the veniremen directly and as individuals, State v. Dixon, 365 So.2d 1310 (La.1979), and the right to examine a prospective juror challenged for cause by the prosecution in order to demonstrate his impartiality. State v. Shelton, 377 So.2d 96 (La.1979).

In the present case the accused’s right to “full voir dire examination” included the right to examine juror number 160. It is clear from his answers in response to questions by the trial court and prosecuting attorney that the juror may have been able, after examination by defense counsel, to declare to the court’s reasonable satisfaction that he could render an impartial verdict according to the law and evidence. If he had been able to so declare, it would have been the trial court’s duty to deny the challenge for cause. Cf. La.C.Cr.P. art. 797(2). Accordingly, the deprivation of defendant’s right to fully examine the prospective juror under these circumstances was prejudicial error. State v. Shelton, supra, 377 So.2d at 102.

Our conclusion that full voir dire examination includes the right to examine a prospective juror for purposes of demonstrating his impartiality is buttressed by the numerous cases in which this court has condoned a trial court practice of permitting prosecuting attorneys to employ voir dire examination to rehabilitate and establish the impartiality of prospective jurors who initially expressed an opinion or impression of the defendant’s guilt or innocence. This court has repeatedly dismissed a defense argument that its challenge for cause was improperly denied by observing that the juror, when questioned further by the prosecutor and the court, demonstrated a willingness and ability to decide the case impartially, according to the law and the evidence. See, e. g., State v. McIntyre, 381 So.2d 408 (La.1980); State v. Allen, 380 So.2d 28 (La.1980); State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Shelton, 377 So.2d 96 (La.1979); State v. Webb, 364 So.2d 984 (La.1978); State v. Nolan, 341 So.2d 885 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Johnson, 324 So.2d 349 (La.1975); State v. Monk, 315 So.2d 727 (La.1975); State v. Blanton, 312 So.2d 329 (La.1975); State v. Hillman, 298 So.2d 746 (La.1974); State v. Frazier, 283 So.2d 261 (La.1973); State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971). The United States Supreme Court has observed that while the trial court is vested with broad discretion as to questions to be asked during voir dire, that discretion is “subject to the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054, 1056 (1931). We think these essential demands of fairness require that the defense counsel be given the same chance at rebuttal and rehabilitation of prospective jurors that we have consistently afforded the prosecution.

For the reasons assigned, the defendant’s conviction and sentence are reversed, and the case is remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

BLANCHE, J., concurs and assigns reasons.

MARCUS, J., dissents and assigns reasons.

CHAISSON, J., ad hoc, dissents with reasons.

COVINGTON, J., ad hoc, dissents for reasons assigned by CHAISSON, J., ad hoc.

BLANCHE, Justice

(concurring).

I agree that the defendant should not have been denied the right to examine the prospective juror, but this writer doubts if it prejudiced the defendant in any way. After reading the colloquy between the trial judge, prosecuting attorney and prospective juror, this writer is convinced that the trial judge did both sides a favor by excusing the juror. Technically, however, the trial judge should have indulged the defense counsel, despite his apparent lack of enthusiasm in insisting on the examination.

MARCUS, Justice

(dissenting).

I do not consider that the trial judge abused his much discretion in excusing the prospective juror (No. 160) for cause. Accordingly, I respectfully dissent.

CHIASSON, Justice Ad Hoc

(dissenting):

I respectfully dissent being of the opinion that the trial judge did not abuse his much discretion in sustaining the state’s challenge for cause against juror No. 160. It appeared to be well settled that a trial judge is vested with wide discretion in determining the qualifications of jurors to serve at trial and that this Court will not upset a conviction on grounds of an erroneously allowed challenge for cause, unless upon review of the voir dire examination as a whole, the judge’s discretion was arbitrary or unreasonable, resulting in prejudice to the accused. La.C.Cr.P. art. 786; State v. Shelton, supra. (Marcus, J. dissenting opinion); State v. Passman, 345 So.2d 874 (La.1977); and State v. Johnson, 324 So.2d 349 (La.1975).

During the voir dire examination, a prospective juror indicated that there might be some doubt in his mind concerning the credibility of a police officer’s testimony. The trial court must have been convinced that the juror would have entertained that doubt regardless of any questions asked by the defense counsel. This is the type of discretion that is and must be afforded to trial judges.

Even assuming an abuse of discretion, no prejudice to the accused has been shown. State v. Drew, 360 So.2d 500 (La.1978). The technical error, if any, did not relate to the defendant’s guilt or innocence and therefore could only be classified as a harmless error.

       Judges Grover L. Covington, Remy Chiasson and Elmo E. Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Fred A. Blanche, Jr.


text:
    VERMILION CORPORATION, v. Norman VAUGHN. VERMILION CORPORATION, v. Freddie BROUSSARD. VERMILION CORPORATION, v. Larry J. BROUSSARD.
    Nos. 80-C-2455 to 80-C-2457.
    Supreme Court of Louisiana.
    April 6, 1981.

      John K. Hill, Jr., Lafayette, for defendant-applicant.

      Charles R. Sonnier, John E. Ortego, Cooper & Sonnier, Abbeville, L. Harvard Scott, III, Harry McCall, Jr., New Orleans, for plaintiff-respondent.
   DENNIS, Justice.

The question presented for our decision is whether the court of appeal correctly found there was no genuine issue as to a material fact and affirmed summary judgment enjoining defendants’ use of man-made navigable canals traversing private lands. We reverse the court of appeal judgment. The pleadings, depositions and affidavits on file show that there is a genuine issue as to a material fact, viz., whether the plaintiff’s system of artificial waterways destroyed the navigability of surrounding natural waterways to such an extent that the defendants are entitled under federal law to use the artificial system as a substitute for the preexisting natural system of navigable waterways.

The plaintiff, Vermilion Corporation, filed these suits to enjoin the defendants from trespassing in canals that it alleged were constructed on private land with private funds and subject to its exclusive right of possession and control. The defendants in their answers claimed that the canals were navigable waters subject to a paramount right of use by the public and were not susceptible of private ownership or control. After affidavits and a deposition were filed into the record, Vermilion Corporation moved for summary judgments. The trial judge granted Vermilion’s motions, rejecting defendants’ assertion of a right under state law to use the artificial system as a substitute for the natural system, which defendants contended was destroyed by the plaintiff’s man-made canals. The defendants reurged the impairment of natural waterways issue on appeal, but the court of appeal agreed with the district court that this issue was immaterial and affirmed the summary judgments. Vermilion Corp. v. Vaughn, 356 So.2d 551 (La.App.3d Cir.), writs denied, 357 So.2d 558 (La.1978).

On writ of certiorari to the court of appeal, the United States Supreme Court agreed with the defendants that the question of diversion or destruction of navigable, natural waterways might be material stating, “we do not think it can be said as a matter of law that if petitioners proved their factual allegations that proof would not constitute a defense under federal law to respondent’s prayer for injunctive relief in the trial court.” Vaughn v. Vermilion Corp., 444 U.S. 206, 209, 100 S.Ct. 399, 401, 62 L.Ed.2d 365, 369 (1979). The case was then remanded to the Louisiana court of appeal.

The Supreme Court’s opinion indicates that defendants would have a right under federal law to use Vermilion’s canals as a substitute for any natural, navigable waterway substantially impaired or destroyed by construction of the artificial system. The court of appeal refused, however, to return the case to the trial court to allow defendants the opportunity to offer proof that construction of the artificial waterways diverted or destroyed preexisting natural, navigable waterways because it concluded that this issue was not properly raised in the defendants’ answers or affidavit. 387 So.2d 698 (La.App.3d Cir. 1980). According to the court of appeal, the defendants’ answers did not affirmatively plead this defense as required, and the defendants’ affidavit was not made on personal knowledge, nor did it allege a causal relationship between the construction of the artificial canal system and the impairment of the natural waterways. Finding that the documents in the record did not disclose a genuine issue of material fact, the original judgment approving the granting of summary judgment was affirmed.

The ultimate question of whether there is no genuine issue as to the material fact of impairment or destruction of a natural, navigable waterway by construction of the artificial system hinges in part on a subsidiary question: whether defendants’ opposing affidavit must be disregarded because it was not made on personal knowledge or because it raises an affirmative defense not pleaded in defendants’ answers.

The failure of the opposing affi-ants to affirmatively show that their statements were made on personal knowledge does not prevent judicial consideration of their affidavits. An affidavit which does not measure up to formal standard is subject to a motion to strike. In the absence of such a motion or other objection, the lack of showing of personal knowledge is waived, unless it is clear from the affidavit itself that it is not based on personal knowledge of the facts. Barnes v. Sun Oil Co., 362 So.2d 761, 763 (La.1978). See, Scharf v. U. S. Atty. Gen., 597 F.2d 1240 (9th Cir. 1979); Lacey v. Mutual Fire Ins. Co. of Boston, 554 F.2d 1204 (1st Cir. 1977); Assoc. Press v. Cook, 513 F.2d 1300 (10th Cir. 1975); 6 Moore’s Federal Practice § 56.22[1] (2d ed. 1980); Wright & Miller, Federal Practice and Procedure, Civil § 2738 (1979). In the present case, the record discloses no objection or motion to strike, and its appears the facts could have been within affi-ants’ personal knowledge.

Defendants’ failure to plead the destruction of a natural waterway in their answers does not preclude consideration of such a material fact appearing in their opposing affidavit. Although there is authority to the contrary, see cases cited at 6 Moore’s Federal Practice § 56.11[3], n. 54, pp. 56-252, we think the better rule is that either the answer should be deemed amended to conform to proof offered by the affidavits or a formal amendment permitted, the affidavits considered, and the motion for summary judgment decided under the usual rule pertaining to the adjudication of summary judgment motions. Freeman v. Marine Midland Bank-New York, 494 F.2d 1334 (2d Cir. 1974); Sherman v. Hallbauer, 455 F.2d 1236 (5th Cir. 1972). Cf., Rossiter v. Vogel, 134 F.2d 908 (2d Cir. 1943); Kane v. Chrysler Corp., 80 F.Supp. 360 (D.Del.1948); 6 Moore’s Federal Practice §§ 56.10, 56.11[3] n. 39, 56.22[1] (2d ed. 1980).

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Mashburn v. Collin, 355 So.2d 879 (La.1977). To satisfy his burden the mover must meet a strict standard by a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. Adickes v. S. H. Kress & Co., supra; Sartor v. Arkansas Nat. Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The papers supporting mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden. Adickes v. S. H. Kress & Co., supra; 6 Moore’s Federal Practice, § 56.15[3],

Applying these rules to the summary judgment materials in the present case, we conclude that there is a material dispute whether the construction of navigation canals destroyed preexisting natural, navigable waterways. Defendants’ affidavit, considered in conjunction with the deposition of Vermilion’s general manager, clearly give rise to such an inference.

The defendants’ affidavit, in pertinent part, provides:

“Prior to the development of the Humble Canal System, deponents are aware that various portions of the natural navigable waterway system in the area of Pecan Island, for example, Little Rollover Bayou and Freshwater Bayou, were actually used for purposes of transporting mail, transporting cattle, and transporting peo-pie, to and from Pecan Island on various kinds of small vessels. These natural waterways only ceased to be useable for these purposes after Humble developed its artificial waterway system.”

Although the affidavit does not state clearly and directly that the development of an artificial waterway caused the natural streams’ loss of navigability, we think that it may be inferred reasonably that their non-navigability resulted from construction of the man-made canals.

Moreover, John Donohue, the vice-president and general manager of Vermilion Corporation, acknowledged in his deposition that one bayou was navigable prior to the construction of a canal in the area and had since become impassible because of heavy siltation. Although Mr. Donohue expressed his opinion that loss of navigability resulted from natural causes, his testimony does not reveal that he had any scientific competence or special experience that would tend to give his opinion conclusive weight.

Accordingly, when we closely scrutinize the mover’s position and more indulgently treat the opposing papers, wé conclude that the Vermilion Corporation has failed to satisfy its burden of making a showing that is quite clear what the truth is and that excludes any real doubt as to the existence of any genuine issue of material fact.

The judgment of the court of appeal is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED TO TRIAL COURT.

* # * * * *

WATSON, J., recused.

      The Honorable Gerald P. Fedoroff participated in this decision as Associate Justice ad hoc.