author: LEMMON, Justice. MARCUS, Justice DIXON, Chief Justice.

text:
    Jessie L. CARTER v. AVONDALE SHIPYARDS, INC.
    No. 80-C-2903.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    On Rehearing May 17, 1982.
    Rehearing Denied July 2, 1982.
    Stewart E. Niles, Jr., of Jones, Walker, Waechter, Poitevent, Carr ere & Denegre, New Orleans, for defendant-applicant.
    David Gertler, of Gertler & Gertler, New Orleans, James L. Donovan, of Donovan & Lawler, Metairie, for plaintiff-respondent.
   LEMMON, Justice.

This is a dispute between successive employers over liability for workmen’s compensation benefits due plaintiff on account of total and permanent disability caused by silicosis.

Plaintiff was employed by Dibert, Bancroft & Ross (DBR) as a sand mixer from 1940 to 1968, working daily with materials which can cause silicosis. Plaintiff left DBR in 1968 and began working for Avon-dale Shipyards, Inc. in essentially the same type of employment.

In 1972 plaintiff’s doctor determined that he had contracted silicosis. Plaintiff continued working until 1977, when he left his employment because his condition had become totally disabling.

Plaintiff then filed this suit against Avondale, who began paying benefits and filed a third party demand against DBR. The trial court found plaintiff was totally and permanently disabled, but dismissed Avondale’s third party demand, finding that the evidence failed to establish plaintiff had contracted silicosis while employed by DBR.

While Avondale’s appeal was pending, plaintiff and Avondale executed a court-approved compromise. The court of appeal then affirmed the denial of the third party demand by a divided vote in an unpublished opinion.

We granted certiorari to review that judgment. 396 So.2d 887 (La.).

I.

Although plaintiff worked in the presence of silica flour (ground sand) and silica dust during his entire term of employment at DBR, he was not furnished with a respirator during the early part of that employment. However, the hopper into which sand was loaded for transfer to the mixing container had a closed top, except for a two-foot opening for introduction of sand.

At Avondale plaintiff also worked as a sand mixer after the first year, but the hopper had an open top and had to be tilted to empty the sand into the mixing contain-e. In this regard plaintiff testified that there was more visible dust in the air at Avondale.

No medical evidence was available as to plaintiff’s condition prior to 1972. In that year plaintiff consulted Dr. Brown, who ordered X-rays and referred plaintiff for lung function evaluation. Although the test showed some lung impairment, Dr. Brown advised plaintiff to continue working. Plaintiff consulted Dr. Brown periodically, and in 1976 the doctor noted progressive changes compatible with silicosis. In 1977 Dr. Brown advised plaintiff to discontinue working because of the disabling disease.

At trial Dr. Brown testified that the described exposure at DBR was consistent with and could contribute to the development of silicosis.

Dr. Weill, a specialist in occupational lung diseases, testified that the induction time for silicosis is variable, depending on the dose, but that in present day foundry work the induction time is generally 20 to 40 years. He noted that it would be very unusual for a foundry worker to develop silicosis after only ten years, stating the induction time is “generally much longer”. He concluded that the major causal factor of plaintiff’s silicosis diagnosed in 1972 was the 28 years of exposure at DBR and that it was a “very low order probability” that the later heavy variable doses after plaintiff’s 28 years of exposure was the primary causative factor.

II.

Analyzing the evidence, the court of appeal suggested the conclusion that it was more probable than not that the development of silicosis occurred to some extent during plaintiff’s employment at DBR. However, the intermediate court concluded that the trial judge’s contrary factual finding was not clearly wrong.

Sufficiency of evidence is a question of law, not of fact. In civil cases the essential elements of the claim, including causation, must be proved by a preponderance of the evidence. The evidence is sufficient to constitute a preponderance when the proof, taken as a whole, establishes that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972).

When, as here, there is no dispute in the evidence, the trial court does not truly perform a credibility function, and without resolving conflicts in proof the trial court simply determines as a matter of law whether the fact or causation at issue was shown to be more probable than not. On appellate review in such cases the manifest error rule is not applicable, since there was no determination of credibility or weighing of conflicting evidence by the trial court. The reviewing court simply applies the same “more probable than not” standard to the undisputed record evidence and determines as a matter of law whether the evidence is sufficient to constitute a preponderance.

On reviewing the record, we agree with the court of appeal that the undisputed evidence shows, more probably than not, that the continuing exposure to silica dust during plaintiff’s 28 years of employment at DBR was a substantial causative factor in his development of the occupational disease of silicosis. Indeed, the record undeniably establishes that the exposure at Avon-dale, substantially similar or only slightly worse than the exposure at DBR, could not alone have caused the silicosis when it was diagnosed four years after he began working at Avondale. Nevertheless, the evidence also preponderates to establish that the exposure at Avondale was likewise a substantial causative factor.

We therefore conclude that the work conditions during plaintiff’s employment at both DBR and Avondale substantially contributed to plaintiff’s ultimate disability from occupational disease. The lower courts erred in reaching contrary conclusions on this record.

III.

The question of the respective liability of successive employers, when conditions during the terms of each employment are substantial causative factors in the employee’s gradual development of an occupational disease, has not been extensively presented to Louisiana courts. R.S. 23:1031.1, pertaining to occupational diseases, does not address the question.

Some states assign liability to the employer for whom the claimant was working at the time the disease became disabling, if that employment contributed to the development of the disease. This “last injurious exposure” approach has the desirable feature of being definite, but it is basically unfair when conditions in one or more previous employments substantially contributed to the development of the disease. Such an approach also might induce initial employers to discharge not yet disabled employees who have been exposed to conditions favorable to development of occupational diseases or might discourage other employers from hiring persons who have formerly worked under such conditions.

Other states apportion the liability among employers whose conditions of employment have contributed substantially to the disabling disease. See generally 4 A. Larson, Workmen’s Compensation, Section 95.00 et seq. (1981). See also Maynard v. State Workmen’s Compensation Comm’r, 239 S.E.2d 504 (W.Va.1977); Colonial Ins. Co. v. Industrial Acc. Comm’n, 29 Cal.2d 79, 172 P.2d 884 (1946), codified, Cal.Labor Code, § 5500.5 (West 1971).

In Louisiana a former employer has been held liable when the term of employment with the second employer was so brief as to be deemed non-causative. Hanlon v. Sline Indus-Painters, 358 So.2d 700 (La.App. 3d Cir. 1978), cert. denied, 360 So.2d 1177. Nevertheless, even when the length of the second employment is sufficient to support a finding that the second employment was a causative factor in the development of the occupational disease, there is no compelling reason that the former employer should not remain liable when that former employment has been proved substantially causative of the developmental disease.

Although each case must be decided on its own facts and circumstances, we conclude that apportionment should be applied when such a result achieves fundamental fairness. In the present case, as noted earlier, the conditions of employment during plaintiff’s work with both employers substantially contributed to the development of silicosis and to his ultimate disability. We accordingly hold that the liability for compensation benefits should be apportioned between those two employers. Since the employers have agreed upon the method of apportionment, it is not necessary to decide that issue in this case.

For these reasons the judgments of the lower courts on the third party demand are reversed, and judgment is now rendered granting the third party demand. Costs in the trial court are assessed in equal proportions to defendant and third party defendant. Costs in both appellate courts are assessed to third party defendant.

WATSON, J., concurs in the result.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents for reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

Workmen’s compensation liability for an employee’s occupational disease or personal injury is most frequently assigned to his employer at the time of the most recent exposure or injury bearing a causal relationship to the disability. 4 A. Larson, Workmen’s Compensation Law, § 95.00 et seq (1981). I consider this to be a better result than that reached by the majority in this case. Accordingly, I respectfully dissent.

ON REHEARING

DIXON, Chief Justice.

Jessie L. Carter sued Avondale Shipyards, Inc., his employer from 1968 to 1977, for workman’s compensation, claiming disability from silicosis, an occupational disease under R.S. 23:1031.1. Avondale answered, alleging that it had begun paying compensation to Jessie Carter. Assuming the position of third party plaintiff, Avondale claimed that Dibert, Bancroft & Ross, Inc., plaintiff’s employer before 1968, caused or aggravated Jessie Carter’s silicosis. Avon-dale claimed indemnification or contribution from Avondale for compensation benefits paid and to be paid to Carter. Dibert, Bancroft & Ross denied Avondale’s allegations.

After trial there was judgment for plaintiff against Avondale for compensation benefits, penalties, attorney’s fees and medical expenses; there was a finding that plaintiff’s silicosis was not “contracted while employed by the third party defendant,” Dibert, Bancroft & Ross, and a judgment rejecting Avondale’s demands against Dibert, Bancroft & Ross.

There was a judgment in March of 1980 approving a compromise settlement and payment of Carter’s January, 1980 judgment against Avondale.

Avondale appealed and the Court of Appeal, in an unpublished opinion, affirmed. We granted writs to consider Avondale’s claim for contribution from Dibert, Bancroft & Ross.

On original hearing we held that liability for Jessie Carter’s compensation benefits was to be apportioned between Avondale and Dibert, Bancroft & Ross. Upon Dibert, Bancroft & Ross’ application for a rehearing, that holding was reconsidered, and we now hold that Avondale is solely liable for the award of workman’s compensation to Jessie Carter.

Jessie Carter’s duties while at Dibert, Bancroft & Ross consisted of pressing buttons that caused sand from a thirty ton capacity overhead tank to empty into a nine hundred pound capacity hopper. Another button caused the hopper to fill a third vessel, called the muller, with sand. He would add silica flour, bentonite, molgar and water to the muller which would mill the compound. Carter described the hopper as having a closed top except for a two foot opening through which the sand dropped in from the overhead tank. The sand fell a short way down a funnel into the mill. Luther Chavers, who knew Carter only during his last three years at Dibert, Bancroft & Ross and who is presently a general superintendent for Dibert, Bancroft & Ross, described the hopper as having an open top. Carter stated the tank emptied the sand into the hopper through a trapdoor in the bottom of the tank. He said there was little dust at Dibert, Bancroft & Ross because there was not much distance for the sand to fall from the tank into the hopper and from the hopper into the muller. Carter was provided with a respirator after one or two years at Dibert, Bancroft & Ross. According to Chavers, Carter worked eight hours a day and prepared about sixteen batches of the sand mixture per day.

Carter was assigned as a sandmixer helper for his first year at Avondale. He later became a sandmixer and coremaker. The tank at Avondale filled an open top hopper with sand by means of a small pipe. One of Carter’s duties during his first two years at Avondale was to stand inside the hopper while sand was flowing from the pipe. As the sand filled the hopper it would accumulate underneath the pipe so as to stop the flow of sand. Carter would shovel the sand away from the pipe so that the hopper could be filled. The hopper had to be inverted in order to dump sand into the mul-ler. Carter said inverting the hopper caused dust to cover everything, and he would inhale it. Carter was provided with a respirator at Avondale, but he said light dust would go through the filter and he would inhale it. Carter testified he worked nine hours a day, five and one-half days a week while at Avondale, but did not know how many batches of sand he made per day. He did say that he made three different types of sand for Avondale while he only made one type at Dibert, Bancroft & Ross.

Carter testified he had been required to undergo a physical examination, that included x-rays, before being hired by Avon-dale in 1968. He was employed by Avon-dale without reservation and was never told of any problems discovered by his examination. Those records and reports were not available at trial, and we have no evidence to establish plaintiff’s medical condition pri- or to 1972.

Dr. Morton Brown, a pulmonary specialist, treated Carter since August, 1972. Dr. Chalaire, Carter’s family physician, had referred Carter to Brown for a tuberculosis test and x-rays. Dr. Brown testified the x-rays showed lung abnormalities in 1972. Dr. Brown referred plaintiff to Dr. Martin Ziskind for a lung function test, and told him to return in two months. Dr. Brown worked for the New Orleans Health Department Chest Clinic until 1976. He stated the clinic’s evaluation was primarily for tuberculosis, and other diseases were not sought out. When Carter returned after two months, Dr. Brown noted the lung function test did show impairment, but he advised plaintiff to continue working.

Plaintiff visited Dr. Brown at the clinic on a yearly basis from 1972 through 1976. Plaintiff’s x-rays were stable throughout that time, and he was given tuberculosis tests which showed no change. Plaintiff saw Dr. Brown as a private patient in 1976. Dr. Brown testified he first diagnosed plaintiff’s condition as silicosis in September of 1976, but it was nondisabling and plaintiff continued working. In August of 1977 he found plaintiff’s condition slowly worsening. Carter was placed in the hospital for evaluation. Plaintiff’s condition was found to be disabling, and he did not return to work.

Dr. Brown testified, in response to defense counsel’s hypothetical question, that considering Carter’s work history, his twenty-eight year employment at Dibert, Bancroft & Ross would have contributed to his development of silicosis. However, Dr. Brown qualified his statement by adding that he could not give an accurate reply because the concentration of dust particles was the key to such a determination. Dr. Brown testified that if the concentration levels at Dibert, Bancroft & Ross and Avon-dale were equal, then Dibert, Bancroft & Ross would have caused greater damage. However, if the level of concentration was higher at Avondale, then it would have tipped the scales as far as the disability factor. Dr. Brown said he was unaware of the concentration levels to which plaintiff was exposed at Dibert, Bancroft & Ross or Avondale. He did say that Carter had progressive worsening of nodules in his lungs while at Avondale where he made molds for steel products which consisted of molds containing silica. Dr. Brown also testified that silica dust particles are invisible to the naked eye. If one could see dispersed particles in the air, he noted, those were the large particles, which were indicative of a lot of small particles that one could not see. Dr. Brown said silicosis had an induction time of anywhere from eighteen months to twenty years.

Dr. Hans Weill, a pulmonary specialist, gave testimony as to the meaning of reports from medical examinations of plaintiff that were made by Dr. Martin Ziskind, also a pulmonary specialist. (Dr. Ziskind died before trial, necessitating Dr. Weill’s testimony). The October, 1977 report indicated Dr. Ziskind found plaintiff to have advanced pulmonary silicosis with simple nodular involvement of both lungs. He also reported that plaintiff suffered from arterial hy-poxemia, hypertensive cardiovascular disease and prostatism. Dr. Ziskind noted that the presence of advanced silicosis was an unfavorable sign because it was usually followed by the development of complicated disease in sandblasters, and predisposed plaintiff to mycobacterial infections.

Dr. Weill stated that sandblasters were subject to the highest risk of silicosis because they were exposed to the greatest concentration of silica particles. He said the disease had an induction time of ten to forty years. Dr. Weill doubted that plaintiff’s employment at Dibert, Bancroft & Ross played no part in his contraction of silicosis, but testified that the concentration of silica particles was the most important factor in its development. Dr. Weill’s opinion was that visible particles meant an even greater concentration of invisible parties. He said that if plaintiff received higher doses of dust at Avondale, then that exposure was the problem, but he did not know of the concentration level at Dibert, Bancroft & Ross or Avondale. Dr. Weill stated that the cotton respirators given to plaintiff by Avondale and Dibert, Bancroft & Ross were inadequate protection against the invisible silica particles.

John Roberts, manager of Avondale’s workers’ compensation department, testified that he sent plaintiff to Ochsner Foundation Hospital in June of 1977. He received a report from Dr. Emory Brooks which advised him that there was a strong suspicion that Carter had silicosis. Roberts stated he did not advise plaintiff of this finding, and plaintiff continued working for Avondale until August 15, 1977.

The evidence establishes that plaintiff was “... disabled because of the contraction of an occupational disease ...” while employed by Avondale. See R.S. 23:1031.1. Plaintiff timely filed his claim against Avondale within four months of the date the disease manifested itself. He carried his burden of proof and established by a preponderance of the evidence that he was disabled from working, and that the silicosis was occupationally related to his employment at Avondale. Plaintiff is clearly entitled to compensation benefits. See Bates v. Bituminous Casualty Corp., 266 So.2d 556 (La.App.1972).

Avondale seeks contribution from Dibert, Bancroft & Ross on grounds that plaintiff’s employment there caused him to develop silicosis. Counsel for Avondale contends that the employer who causes the exposure which results in the disease is liable for compensation, regardless of who employs the claimant when the disease manifests itself. Hanlon v. Sline Industrial Painters, 358 So.2d 700 (La.App.1978), writ refused 360 So.2d 1177 (La.1978); Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976) are cited for this proposition.

In Hanlon the claimant worked for Sline Industrial for five years. Under a contract Sline had with PPG Industries, Hanlon went to work at the PPG plant site. The contract between Sline and PPG required PPG to pay any workers’ compensation benefits which may have become due to Hanlon while working at PPG. Hanlon was, in effect, an employee of PPG for the next ten to fifteen years. He was exposed to silica particles throughout this employment. Hanlon finished the job at PPG on June 15, 1975. He did no work until August 15,1975 when he was sent by Sline to an American Bridge job in Orange, Texas. Three days after Hanlon began sandblasting work he became disabled because of silicosis. The court held PPG solely liable for Hanlon’s compensation benefits.

Chivoletto v. Johns-Manville, supra, involved a plaintiff who was employed by Johns-Manville from 1948 through 1970 where he was exposed to asbestos. When Chivoletto became disabled because of asbestosis in 1973, he was employed by Jefferson Parish as a sewerage treatment plant operator. He was not exposed to any asbestos while employed by the Parish of Jefferson. The court held Chivoletto was entitled to an award for permanent partial impairment of lung function. Johns-Man-ville was held liable for the compensation.

Hanlon and Chivoletto are distinguishable from the case at bar. Hanlon involved a plaintiff who had worked for his employer, Sline, for less than twelve months, and he failed to prove by an “overwhelming preponderance of evidence” that he contracted silicosis during his three day employment with Sline at the American Bridge job. See 23:1031.1D. The evidence clearly established that Hanlon’s silicosis was a result of his employment with PPG and not from his three day employment with Sline.

In Chivoletto the plaintiff was awarded compensation benefits against the employer who had caused his exposure to asbestos. Plaintiff had no exposure to asbestos at his job with Jefferson Parish, which was a job totally unrelated to the type of work he performed for Johns-Manville. As in Han-Ion, sole liability for compensation was placed on the employer that last exposed the plaintiff to disease producing particles which caused the plaintiff to contract and become disabled by the occupational disease. In Hanlon the plaintiff’s last employer was held not liable because of the limitation in R.S. 23:1031.1D. In Chivoletto the last employer was excused from liability for compensation because the plaintiff’s asbestosis was not occupationally related to that employment.

The evidence in the case at bar indicates that plaintiff’s employment at Dibert, Bancroft & Ross might have played a part in his development of silicosis. However, it was not established by a preponderance of evidence that plaintiff’s exposure at Dibert, Bancroft & Ross caused him to contract silicosis and become disabled. Drs. Weill and Brown both testified that the concentration of particles was the determining factor in the contraction of silicosis. They also stated that visible dust particles were indicative of an even greater number of invisible particles. The physicians could not offer opinions as to which job caused plaintiff’s silicosis because they did not know the concentration levels to which he was exposed. The only evidence before us is plaintiff’s testimony that there was a great deal more dust at Avondale than at Dibert, Bancroft & Ross. Plaintiff’s description of the sand mixing process at Avondale corroborates his opinion as to the concentration levels. The higher level of concentration at Avondale suggests that employment was the primary cause of plaintiff’s silicosis and disability.

In Fazande v. Continental Grain Co., 363 So.2d 1253 (La.App.1978), plaintiff suffered from an occupational pulmonary disease caused by his employment at a grain elevator. The grain elevator’s insurer at the time plaintiff became disabled contended the elevator’s previous insurers were liable in solido for plaintiff’s compensation. The insurer argued that the inhalation of grain dust amounted to a series of injuries over plaintiff’s fifteen year employment by Continental, and that each insurer should contribute for his compensation. The court rejected that argument and held the last insurer liable because it had provided coverage to plaintiff at the time he became disabled and on the last day of exposure. The court found plaintiff’s claim was for occupational disease rather than a series of definable accidents.

R.S. 23:1031.1 does not specifically exclude the possibility of contribution by former employers when their working conditions contributed to the occupational disease. Nevertheless, a fair interpretation of 23:1031.1 indicates no intent to depart from the general scheme of the compensation act — the employer at the time of the accidental injury causing disability is responsible for paying compensation benefits. The only departure in 23:1031.1 is subsection D, covering disability from occupational diseases occurring when a worker has been employed for less than twelve months. In that case, the worker must prove by an “overwhelming preponderance of the evidence” that the disease was contracted within the last twelve months in order to establish that the “occupational disease .. . shall become compensable.” 23:1031.1D.

No provision in 23:1031.1 indicates that employers from years back should share responsibility (for paying compensation benefits) with employers of the worker at the time the disease “manifested itself” and “disabled” the worker. 23:1031.1E. This is consistent with the other provisions of the compensation act, which places responsibility on the employer at the time of the “accidental injury” causing disability, and not on previous employers whose conditions might have made the worker only more susceptible to injury. See Starks v. Hardware Mutual Casualty Co., 231 So.2d 657 (La.App.1970).

The decision to require contribution from a former employer, whose working conditions might have contributed to the occupational disease which ultimately disables the worker, is a policy decision which is best left to the legislature.

Accordingly, our original decision granting the third party demand is set aside, and there is now judgment in favor of third party defendant Dibert, Bancroft & Ross, Inc. and against Avondale Shipyards, Inc. rejecting Avondale’s third party demand, and reinstating the judgments of the lower courts, at Avondale’s cost.

LEMMON, J., dissents.

      . The trial court also awarded penalties and attorney’s fees, finding that Avondale had arbitrarily failed to pay compensation benefits timely.

      . Plaintiff did undergo a pre-employment physical, including X-rays, before he began work at Avondale. Although those records were not available, the logical inference is that the examination results were satisfactory.

      . When there is conflicting evidence, great weight must be accorded to the trier of fact in the proper performance of factfinder’s function of weighing evidence and resolving conflicts. In such a case a reviewing court determines sufficiency by viewing the evidence in the light most favorable to the prevailing party and then determining whether the evidence, thus viewed, constitutes a preponderance.

      .R.S. 23:1031.1 does provide that a disease, although otherwise qualifying under the statute as occupational, is presumed not to have been contracted in the course of the particular employment when the employee has been engaged in work for the particular employer for less than 12 months. This presumption, however, is rebuttable.

      . Cuppett v. Sheeslly Supply Co., 30 Pa. Cmwlth. 584, 374 A.2d 757 (1977); Morell v. Asarco, 611 S.W.2d 830 (Tenn.1981); Yocom v. Karst, 528 S.W.2d 697 (Ky.App.1975).

      . The method of apportionment is a difficult issue. Apportionment could be based on the length of time in each employer’s service, or on the relative working conditions maintained by each employer, or on an equitable determination by the trier of fact based on all relevant factors.

      . R.S. 23:1031.1 was amended in 1980 to lengthen the prescriptive period to six months. See Acts 1980, No. 666, Sections 1, 2. Those parts of R.S. 23:1031.1 applicable to this case are:
      “A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
      B. An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.

      D. Any occupational disease as herein listed contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-occupational and not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by an overwhelming preponderance of evidence.
      E. All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months of the date of his contraction of the disease or within four months of the date that the disease first manifested itself. Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

        F. All claims for death arising from an occupational disease are forever barred unless the dependent or dependents as set out herein file a claim with the deceased’s employer within six months of the date of death of such employee. Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.
      G. Compensation shall not be payable hereunder to an employee or his dependents on account of disability or death arising from disease suffered by an employee who, at the time of entering into the employment from which the disease is claimed to have resulted, shall have willfully and falsely represented himself as not having previously suffered from such disease.
      H.The rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relatives.”

      . Counsel for Avondale also relies on Lachney v. Employers Commercial Union Insurance Companies, 337 So.2d 624 (La.App.1976) and Scott v. Hartford Accident & Indemnity Co., 302 So.2d 641 (La.App.1974). Those cases are inapplicable because each dealt with distinct work related accidents that caused back pain and led to disabling back conditions. The issues in this case are governed by the occupational disease law, R.S. 23:1031.1.


source: Caselaw Access Project

author: BLANCHE, Justice. DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Melvin TRIBBET.
    No. 81-KA-0233.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied July 2, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Clarence McManus, Abbott J. Reeves and William “Chuck” Credo, III, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, New Orleans, Joseph L. Montgomery, Metairie, Staff Appeals Counsel, 24th Judicial District Indigent Defender Board, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Melvin Tribbet, was convicted of armed robbery, a violation of R.S. 14:64, and was sentenced to serve 18 years at hard labor. Defendant appeals his conviction and sentence, raising six assignments of error, two of which have been abandoned. We find that the remaining assignments of error have no merit and affirm defendant’s conviction and sentence.

The defendant entered the lobby of the Scottish Inn Motel, approached the front desk, pulled a gun, and ordered the clerk on duty to empty the hotel’s cash register. As she complied with his command, the defendant walked to the end of the front desk and through the doorway which led to the clerk’s area, as well as to the hotel’s office. At this point, the robber stumbled upon the manager on duty, who was seated in the hotel office. After obtaining the cash contained in the hotel’s cash register from the desk clerk, the armed attacker ordered the hotel manager, under the threat of death, to open the hotel safe and turn over its contents. Upon receiving several hundred dollars, the defendant attempted to lock his victims in the hotel office and fled the scene. As soon as the hotel employees were positive that their attacker was no longer present, they summoned the police.

Though the victims were able to furnish a description of the robber, neither was able to pick out their attacker at a photographic lineup held five days after the robbery. However, at a second photographic lineup conducted a month after the holdup, both the clerk and the manager were successful in singling out the holdup man. Both positively identified Melvin Tribbet as the perpetrator. Tribbet was a former part-time employee at the Scottish Inn who had previously been arrested by the police for a burglary which occurred at the motel the week before this robbery occurred. A warrant was issued for his arrest and he was subsequently apprehended.

Defendant’s conviction was based solely upon the testimony of the two motel employees as well as their abilities to make a positive in-court identification of defendant as their assailant. The trial judge sentenced Tribbet to 18 years at hard labor, the sentence to run concurrently with his conviction for the burglary at the motel which preceded this robbery.

Assignment of Error Number 2

Tribbet contends that during the trial, Officer John Ledet, while testifying, alluded to other crimes committed by defendant. This assertion is based upon the following dialogue, which transpired between the state’s witness and defense counsel:

Q. Did you make a arrest of Mr. Trib-bet?
A. The only time I ever arrested Mr. Tribbet—
Q. I am talking about did you arrest Mr. Tribbet in connection with this particular crime?
A. No, sir.
Q. Do you know whether if he was ever arrested?
A. Arrested other than this crime?
THE COURT: Gentlemen, we are talking about now at this particular time.
MR. DIVENS: I have a motion.
THE COURT: Make a motion.
MR. DIVENS: I would have to make it outside the presence of the jury.
THE COURT: All right, ladies and gen-tlement of the jury if you all would step back into the jury room at this time we have a motion.
(JURY RECESSED)
THE COURT: All right, let the record reflect the jury has been removed from the courtroom. All doors have been closed.
MR. DIVENS: Your Honor, at this time I would move for a mistrial on the grounds of this witness had made mention of other crimes that this defendant may have been involved in ...

By this assignment of error, defendant challenges the trial judge’s refusal to grant his motion for a mistrial, as well as the trial judge’s failure to admonish the jury after Officer Ledet referred to other crimes allegedly committed by defendant. In this connection, defendant relies upon C.Cr.P. art. 771, which provides:

Art. 771. Admonition

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial, (emphasis added)

This Court has previously held that the state cannot be charged with testimony elicited by defense counsel implying that defendant had previously committed other crimes and that defendant cannot claim reversible error on the basis of that evidence which he elicited. State v. Kimble, 375 So.2d 924 (La.1979). In the instant case, the officer was asked if he had made an arrest of defendant. Not realizing the question referred to the present charge, the officer’s response conceivably implied that he had previously arrested Tribbett on another charge. We say “conceivably” because, without further questioning by counsel, the full import of the witness’ answer could not have been discerned as he did not complete his answer. It was not until counsel elicited from the officer that he was not involved in the defendant’s arrest for this particular crime that the jury could have surmised that the officer had arrested defendant for an unknown crime on another occasion. Nevertheless, we do not regard the witness’ answer as a deliberate attempt to expose to the jury defendant’s arrest for another crime. This was brought out when counsel further persisted by asking the officer if he knew whether defendant had ever been arrested. To this, the witness again answered with a reply which indicated that the witness was merely attempting to determine the occasion to which counsel referred. He had just answered that he had not arrested defendant for the present crime and, it seems to us, defense counsel should have been satisfied with that answer. In any event, we give counsel more credit for the so-called “other crimes” reference than we do the witness.

As for the trial judge’s failure to admonish the jury after the officer’s statement, it is evident that C.Cr.P. art. 771 mandates a request for an admonishment. As a result, the judge’s failure to instruct the jury to disregard the allegedly prejudicial reply, absent a request, was not, in itself, reversible error. State v. Williams, 375 So.2d 364 (La.1979); State v. Lee, 340 So.2d 180 (La.1976). Further, a review of the testimony reveals that the officer’s statement was nothing more than an obscure reference to other crimes and was made without explanation or elaboration. An admonition by the trial judge in the present case would have brought the other crimes issue to the jury’s attention. Considering the innocuous nature of the officer’s answers, it is our opinion that the trial judge, by not instructing the jury, probably followed a better course of action. In any event, the defendant was not prejudiced by the officer’s statement. Accordingly, this assignment of error lacks merit.

Assignment of Error Number 4

During the course of the trial the testimony established that the victims of the armed robbery were shown two separate photographic lineups which included photographs of defendant.

The first set consisted of seven photographs. At this initial showing, approximately five days after the incident, the victims were unable to identify the defendant. One month later the victims were shown a second photo lineup, and positively identified the defendant as their assailant. At trial, the state introduced the second set of identification pictures, but did not introduce the first set.

Defendant submits that the state’s failure to produce the first set of identification photos was prejudicial to his defense because the jury was deprived of the opportunity to determine if there were other persons with similar characteristics as the accused.

Initially, it ought to be noted that the testimony established that the second photographic lineup, which consisted of the ten pictures admitted in evidence, included all seven photographs used at the initial lineup.

Further, the admissibility of the second lineup depended solely upon whether it was so unduly suggestive and conducive to mistaken identification as to deny due process. State v. Gray, 351 So.2d 448 (La.1977). In the present case, the record is completely void of any evidence which would support defendant’s allegation that the lineups may have been conducted in a suggestive manner. Both victims of the robbery unequivocally stated that the investigating officers never suggested in any way which photograph portrayed their assailant. These motel employees viewed the photographs outside the presence of the officers and were afforded the opportunity to make an independent study as well as an individual selection. The failure of these witnesses to single out Tribbet as the holdup man at the initial photographic lineup was admitted at trial by the state witnesses, and thoroughly exploited by defense counsel, who was able to focus the jury’s attention on this matter.

Accordingly, this assignment of error lacks merit.

Assignment of Error Number 5

In an attempt to question the accuracy of the state’s witnesses’ identification of him as the holdup man, defendant called his sister, Beverly Wilson, to testify in his behalf. Ms. Wilson was an employee at the Scottish Inn and was working on the day of the robbery.

The two other motel employees claimed that they were the only individuals present when the holdup occurred. Contrary to this testimony, Ms. Wilson stated that she had just completed her work shift and was approaching the time clock next to the front desk when she witnessed the robbery. Though she admitted that she did not actually see the holdup man’s face, she testified that she was positive he was not her brother. According to Ms. Wilson, the assailant was the same individual she observed enter the motel a few minutes earlier. Further, her description of the assailant differed significantly from that given by the other motel employees.

In an attempt to lessen or destroy this witness’s credibility, the state was able to establish that Ms. Wilson’s trial statement was the first occasion on which she had come forward with her information. The state then entered a line of questioning which established that Ms. Wilson had pleaded guilty to a theft charge. After defense counsel attempted to rehabilitate his witness, the state requested, before the jury, that Ms. Wilson’s testimony be impeached on the basis of her dishonesty. To this request, the trial judge responded:

This is a matter for the weight for the jury to determine what her testimony is concerned with. We have been given some information already to the jury concerning what they can believe, what they can’t believe, what weight they are to give and I believe that is part of the job of the triers of the facts. I overrule your motion, sir. It is up to the jury to determine whether that is impeached or not.

Defendant then moved for a mistrial, which was denied by the trial court. By this assignment of error defendant takes exception to the lower court’s adverse ruling, and contends that the prosecutor’s request was highly prejudicial. In this connection, Tribbet relies upon C.Cr.P. art. 770, which provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of. the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

A mistrial is a drastic remedy and, except in instances in which it is mandatory, is only warranted if substantial prejudice results which would deprive defendant of a fair trial. State v. Sepulvado, 367 So.2d 762 (La.1979). The determination of unnecessary prejudice lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Douglas, 389 So.2d 1263 (La.1980).

In the instant case, the prosecutor’s remark did not fall within any of the specific grounds for a mistrial enumerated in C.Cr.P. art. 770, nor did the statement amount to prejudicial conduct that would make it impossible for defendant to obtain a fair trial. See C.Cr.P. art. 775. Further, the trial judge, in denying the state’s request to impeach the witness, corrected any possibility of prejudice by clearly informing the jury that their duty, as the triers of fact, was to determine the weight to be given to the witness’ testimony. Accordingly, this assignment of error is without merit.

Assignment of Error Number 6

After being found guilty by the jury, defendant was sentenced by the trial judge to serve 18 years at hard labor. By this assignment of error, Tribbet urges that the sentence imposed was excessive and that the trial judge failed to articulate his reasons for imposing sentence as required by C.Cr.P. art. 894.1.

In the instant case, the trial judge failed to provide any factual basis for the length of the sentence imposed and did not consider the possible existence of statutory mitigating factors. Even so, this Court, when confronted with the identical situation, has held that a sentence which is not apparently severe should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences. State v. Jones, 381 So.2d 416 (La.1980). Based on the facts of this case, we conclude that Tribbet’s 18 year sentence out of a possible 99 years is not apparently severe and was within the trial court’s discretion. This assignment of error lacks merit.

Accordingly, the conviction and sentence of defendant are affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

This case is not identical to State v. Jones, 381 So.2d 416 (La.1980), because the sentence imposed here is three years longer. However, the defendant in this case also committed a burglary of the same hotel one week before the armed robbery. For this reason, the non-parolable eighteen year sentence at hard labor does not appear to be excessive.


author:
EDWARD A. DUFRESNE, Jr., Justice Pro Tern.
     PER CURIAM.

text:
    STATE of Louisiana v. Gary Wayne PARKERSON.
    No. 81-KA-2252.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Granted in Part and Denied in Part July 2, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, Asst. Dist. Atty., for plaintiff-appellee.
    John Ford McWilliams, Jr., of Rice & McWilliams, Shreveport, for defendant-appellant.
   EDWARD A. DUFRESNE, Jr., Justice Pro Tern.

Defendant was charged with knowingly and intentionally producing a Schedule II Controlled Dangerous Substance, namely marijuana. La.R.S. 40:967A(1). He entered a plea of guilty, reserving his right to appeal from a denial of his motion to suppress the evidence. The trial court sentenced him to a term of three (3) years at hard labor and a fine of $5,000.00, or in default thereof, one (1) additional year at hard labor. It is from this conviction and sentence that defendant appeals, relying on three assignments of error.

FACTS:

At the hearing on the motion to suppress, Trooper John Balance of the Louisiana State Police testified that he had received information from the Arkansas State Police that defendant was growing marijuana. Subsequently, two or three concerned citizens also notified the authorities that defendant was growing marijuana behind his house.

Thereafter, officers consulted the Clerk of Court’s Office to determine exactly which portion of the area belonged to defendant and to learn the names of the owners of the property adjacent to defendant’s property. One of the adjoining owners was the mayor of Cullen, Louisiana. The mayor gave the officers permission to enter his property. After determining which land they could lawfully enter, the officers proceeded to the area. From a certain point on the mayor’s property, they could see what appeared to be marijuana plants growing on defendant’s land. The closest plants were approximately one hundred feet away. In order to make sure that the plants were marijuana, the officers inspected them through a pair of field glasses.

Upon making a positive determination, the officers drove to the Webster Parish District Attorney’s Office and requested that the District Attorney draw up an affidavit for a search warrant. After the affidavit was signed by the Judge, the officers proceeded to defendant’s residence. When defendant was shown the search warrant and told that the officers were looking for marijuana plants, the defendant replied, “Well, you know where they are;” he then led the officers to the area where the plants were growing. Nine hundred and sixty-eight marijuana plants were seized from defendant’s property. The seized material filled a cattle truck thirty-two feet long and four and a half feet high.

Assignment of Error No. 1

By this assignment of error, the defendant contends that the trial court erred in overruling his motion to suppress the marijuana seized from his property. His basic argument is that the officers could not have seen the marijuana plants on his land unless they had entered upon his property. In essence, defendant argues that the trial judge erroneously believed the officers when they testified that they did not enter on defendant’s land and that they definitely could see and identify the marijuana plants from their vantage point on the adjoining property. Assessing the credibility of witnesses is a matter in which the trial judge’s discretion is broad, and it is a matter concerning which he is particularly well situated. State v. Collins, 328 So.2d 674 (La.1976). In this case, the trial judge chose to believe the testimony of the police officers; from the record, it does not appear that he abused his discretion.

With the consent of an adjoining property owner, the officers made their observations from a point outside the defendant’s property. Those observations clearly gave them probable cause to believe that the defendant was growing marijuana on his property. The officers then obtained a search warrant before they entered the property of the defendant.

This assignment is without merit.

Assignment of Error No. 2

At the motion to suppress, Deputy Jimmy Batten testified as an expert witness as to the “street value” of the marijuana seized in this case. No prejudice whatsoever was caused by this testimony, which was before the court solely on a motion to suppress. The competence of an expert witness is a question of fact to be determined by the trial judge. State v. Gomez, 319 So.2d 424 (La.1975).

Accordingly the assignment has no merit.

Assignment of Error No. 3

By this assignment of error, the defendant contends that the trial judge imposed an excessive sentence.

Defendant was sentenced to a term of three years at hard labor and a fine of five thousand dollars or in default thereof, an additional year at hard labor.

From the record, the trial court adequately considered the guidelines set forth in La.C.Cr.P. Art. 894.1. Our review should therefore focus on whether the trial court’s large discretion in sentencing has been abused. State v. Spencer, 374 So.2d 1195 (La.1977).

As a general rule, a sentence is excessive “if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355, 357 (La.1980). From the large amount of marijuana seized and from other evidence, the trial judge concluded that the defendant was in the business of supplying marijuana. Accordingly, he sentenced the defendant to three years in prison and a $5,000 fine out of a possible ten year sentence and $50,000 fine. La.R.S. 40:967 B(2).

The trial court has definitely not abused its great discretion in sentencing. Accordingly, this assignment of error has no merit.

The motion to suppress was properly denied and the conviction and sentence of the defendant are affirmed.

AFFIRMED.

PER CURIAM.

The original opinion contains a typographical error; the correct maximum fine for Schedule II, LSA-R.S. 40:967 B(2) is $15,000. The application for rehearing is granted to make this correction; otherwise it is denied.

       Judges Nestor L. Currault, Jr., and Fred S. Bowes of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Jack Crozier Watson.

      . The court notes that in connection with the application for rehearing, the photographs and plats introduced into evidence have been reviewed.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Roy A. VANDERHOFF, Sr.
    No. 80-KA-2529.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied July 2, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jack Rowley, Dist. Atty., Glenn E. Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Walker H. Drake, Jr., Chalmette, Indigent Defender Office, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was arrested on July 8, 1977 for aggravated crime against nature in violation of R.S. 14:89.1. A bill of information was filed on May 8, 1978 charging defendant with aggravated crime against nature on a nine year old girl. Defendant was arraigned on June 5, 1978 at which time he entered pleas of not guilty and not guilty by reason of insanity. On August 7, 1978 defendant was found insane based on opinions of two psychologists, and was committed to the East Louisiana State Hospital at Jackson, Louisiana. Defendant was later reevaluated by the same psychologists and the Louisiana Department of Health and Human Resources; it was determined that defendant was sane. On October 15, 1979 defendant withdrew his former plea of not guilty and not guilty by reason of insanity and entered a plea of not guilty. On February 12 and 13, 1980 defendant was tried by a twelve person jury that unanimously found him guilty as charged. Defendant was sentenced to ten years at hard labor on June 9, 1980.

FACTS

On July 8, 1977 somewhere between 2:00 p. m. and 4:00 p. m., the nine year old victim returned home to tell her mother that something had happened to her. She related to her mother that she had been around the block at Roy Vanderhoff’s house. Roy Vanderhoff, thirty-one years old at the time, had called her inside and wanted her to play house with him. If she should refuse to play with him, Vanderhoff told her, he would call the police to make her daddy pay for a car that she had damaged by jumping on the hood.

Vanderhoff led the nine year old victim into his bedroom, lit a cigarette and took off his pants. She told her mother he was wearing pants without a shirt or underwear. He lay naked on the waterbed and told her to crawl under the covers. She lay across the top of him and he put his penis in her mouth and moved her around until he ejaculated into her mouth. The victim told her mother the penis was warm and felt like a nipple. She said it had a hole in it, and white slime came out.

The victim’s mother called the St. Bernard sheriff’s office shortly after her daughter told her what happened. When the officers arrived, the victim related the incident to them. Detective Carreras, Detective Papania and Captain Charrier went to defendant’s home. Two officers knocked on the front door, and one went to the rear. The officers testified they knocked on the front door, and heard some movement inside. The officer at the rear of the house stated defendant ran out the rear door, wearing pants without a shirt. He jumped over the back steps, and did not stop until a gun was pulled on him. Defendant was arrested and taken to the sheriff’s office. An officer instructed defendant to remove his pants, and this revealed defendant was wearing no underwear.

Defendant alleged that the nine year old victim was not at his home on July 8, 1977. He and his two sons, ages twelve and thirteen at the time of trial, testified the nine year old girl had been at their home on July 6, 1977. She and defendant’s youngest son had been in the house jumping on defendant’s waterbed, and broke a light bulb on the bed. Defendant hollered at the girl and told her to go home. Defendant went back to work on a car in his yard, where he had been when he heard the children in the house. The victim and defendant’s youngest son began jumping on the hood of the car on which defendant was working. Defendant became angry, and he sent the victim home once again. Defendant alleges she was angry with him for yelling at her, and made up this story about him for revenge.

Defendant’s youngest son, Johnny, told the officers that his father had called the victim in the house on July 8,1977. He said she was in the house for about half an hour, and she left the house crying. Johnny and his brother, Roy, were taken to the sheriff’s office after their father was arrested. Detective Carreras testified as to Johnny’s statement on July 8, 1977, but Johnny denied making the statement. Johnny did say it was possible he might have told Detective Carreras that he had seen the victim on that day.

Defendant, his brother-in-law, Vernon Marcal, and defendant’s two sons testified that defendant was at his home on July 8, 1977. Defendant was working with his brother-in-law on a truck from about 8:30 a. m. until half past noon. Defendant’s sons testified they were in the house waiting for their father to fix lunch when the officers arrived to arrest him. Defendant and his sons stated he had gone out the rear door when he saw the officers. He was in the kitchen, near that door, and wanted to meet the officers to find out what was wrong. Defendant also attempted to show that the victim and her mother had on previous occasions made false accusations of sexual abuse against another neighbor, Mr. Ayo.

Assignments of Error Nos. 4, 5, 9,16 and 21

Defendant alleges prejudicial error in the state’s answer to question 6 of his bill of particulars and in answer to his prayer for oyer. He also contends the trial court erred in allowing the victim’s mother to testify as to the age of the defendant, and in allowing the police officers to testify as to defendant’s verbal admission of his age. However, the record reveals that the defense failed to object at the hearing on discovery motions. The defendant only objected to answers 1 and 4 that were given in response to the bill of particulars, and he was satisfied with the state’s answer to his prayer for oyer. At trial the defense failed to object to the mother’s or the police officer’s testimony relating to the age of defendant. Failure of the defense to make a contemporaneous objection at the time of error is considered a waiver of that error for appeal. See State v. Baylis, 388 So.2d 713 (La.1980); State v. Lawson, 393 So.2d 1260 (La.1981).

These assignments lack merit.

Assignments of Error Nos. 6 and 27

By these assignments defendant contends the trial court erred in preventing him from questioning the victim or Mary Schneider, a neighbor of the defendant and the victim, about whether or not Mr. Ayo, another neighbor, had ever done anything to the victim. The trial judge sustained the state’s objection to those questions. The defense was attempting to show that the victim’s mother had accused Mr. Ayo of making sexual advances toward the victim when she was five years old. Mary Schneider did testify that the victim’s mother had said Mr. Ayo had made improper advances toward her daughter. When asked whether she believed it, the state objected. It appears the trial judge did not let the defense question the victim about Mr. Ayo because he did not think she should be placed on trial. However, he did allow the question to be asked of Mary Schneider; he did not allow her opinion as to whether the story was true.

These assignments are without merit. Mr. and Mrs. Ayo both testified at trial, and the defense had the opportunity to examine them regarding the truth of the allegation, as well as the victim’s mother’s reasons for making it. Mrs. Ayo testified that the victim’s mother told her that Mr. Ayo had taken the victim’s pants down in the yard. Mrs. Ayo stated she confronted her husband with the story, and he denied it. Mr. Ayo testified that the victim’s mother never told him, but told his wife, that he had taken the victim’s pants down. He testified that the victim had come into his yard and flipped up her shirt, which was unbuttoned. He told her to get out of the yard.

Defendant contends that he should have been allowed to ask the nine year old victim about Mr. Ayo in order to impeach her testimony. It is important to note that the victim was twelve years old at the time of trial; the trial judge, the prosecutor and defense counsel were solicitous of the child, who was upset and rather inarticulate. It took some time before she would answer questions, and most of her testimony consists of yes or no answers to counsels’ questions. Defense counsel tried to explain the purpose of his questions (impeachment of the state’s witnesses), and now argues that the trial court’s denial of his right to ask those questions constituted a violation of defendant’s Sixth Amendment right to confront witnesses and cross-examine them. This argument is not without some merit, but defendant fails to show any prejudice from the lack of the child’s testimony about the Ayo incident. The child was five years old when it happened. Defense counsel was allowed to question the child’s mother in detail about the incident, as well as Mr. and Mrs. Ayo and another neighbor. The jury heard the full story.

Assignment of Error No. 7

Defendant asserts that the court’s refusal to restrain the district attorney’s use of leading questions to the nine year old victim constituted prejudicial error. He contends the leading questions were like testimony by the district attorney. This court has held that:

“. .. Although counsel should not be permitted to mold the witness’ testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused’s rights. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Washington, 294 So.2d 794 (La.1974).” State v. Swift, 363 So.2d 499, 505 (La.1978).

From the record it appears the district attorney did lead the witness and probably would have gotten little testimony from her without leading questions. The witness in this case was only twelve years old, and it was difficult enough to persuade her to answer. Some leading questions were either rephrased by the district attorney so that they were no longer leading, and some were made in reference to earlier testimony by the victim. The practice can be abused, but in the absence of abuse we should not reverse when the trial court allows leading questions to a witness who, because of youth, confusion or otherwise cannot understand direct questions. The trial court can protect the defendant with adequate jury instructions from the risk involved in leading questions when the choice is between the risk, on one hand, and abandoning the effort to find out what the witness knows. See State v. Boyd, 359 So.2d 931 (La.1978); State v. Francis, 337 So.2d 487 (La.1976).

Assignments of Error Nos. 1, 2, 3, 8, 12, 14, 15, 17, 18, 19, 20 and 23

Assignments of Error Nos. 8, 12, 14, 15, 17,18,19, 20 and 23 were not objected to at trial and are considered waived. State v. Lawson, supra; State v. Baylis, supra. Assignments of Error Nos. 1, 2 and 3 were objected to at trial, but were neither briefed nor argued and are considered abandoned. See State v. Gardette, 352 So.2d 212 (La.1977); State v. Fields, 342 So.2d 624 (La.1977).

Assignment of Error No. 11

By this assignment defendant contends that the trial court erred in overruling the defense’s objection to a question asked by the state to the victim’s mother.

The question of which this assignment complains was: “Is [the victim] capable of coming up with a story like that on her own?” Defendant argues the question called for an opinion and should not have been admitted according to R.S. 15:463, which provides:

“Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.”

While it is true that a lay witness, generally, can testify only as to facts, a witness is permitted to draw reasonable inferences from personal observation. State v. Sayles, 395 So.2d 695 (La.1981). In the instant case, the state questioned the victim’s mother with regard to the victim’s behavior when the victim reported the crime to her and with regard to what the victim told her. At the end of this line of questioning the state asked: “Is [the victim] capable of coming up with a story like that on her own?”

Although the defendant objected to the question at trial, he failed to state a basis for his objection as required by C.Cr.P. 841. Fulfillment of this requirement allows the trial court the opportunity to rule on the objection and to avoid or cure any error. State v. Baylis, supra. No prejudicial effect by this testimony has been shown.

The error does not justify reversal.

Assignment of Error No. 13

By this assignment defendant contends that the trial court erred in allowing the state to use less than the best evidence.

Defendant objected to the state’s questioning of Detective Papania with regard to what the victim told him during his investigation of the reported crime. The testimony was hearsay, but there was no objection on that ground. There was no violation of the “best evidence” rule of R.S. 15:436.

Nor was there any need for this hearsay testimony. Although inadmissible, it was merely cumulative; the record contains much similar testimony admitted without objection. The error, therefore, was harmless.

Assignments of Error Nos. 24 and 25

Defense counsel asserts that he was restrained from asking questions of Detective Carreras on cross-examination relative to the failure of the police to conduct scientific tests on the victim and on the defendant’s clothing. The record indicates defense counsel was given ample opportunity to examine Carreras on this matter. He took full advantage of that opportunity, and there is no merit in these assignments.

Assignment of Error No. 29

Defense counsel attempted to ascertain from Detective Carreras on cross-examination if the term “a little while ago” referred to the date of July 8, 1977. Johnny Vanderhoff, defendant’s youngest son, spoke with Detective Carreras at the sheriff’s office after his father’s arrest. The officer asked whether Johnny’s father had called the nine year old victim into the house “a little while ago.”

The officer testified that Johnny told him “yes.” Defense counsel unsuccessfully tried to use the term “a little while ago” to mean a few days before July 8,1977. Tex Duvall, Johnny’s grandfather, was present when the question was asked of Johnny, and he testified that Johnny said the victim had been in the house awhile ago. There was some confusion as to what the term meant, and Johnny denied making the statement. Johnny did admit it was possible he could have made the statement.

The testimony of Carreras and Duvall did not establish what was in Johnny’s mind when he answered the question, and it is possible that “a little while ago” meant different things to Johnny and the officer. However, defense counsel had ample opportunity to question the officer, Duvall and Johnny Vanderhoff about the statement.

This assignment is without merit.

Assignment of Error No. SO

Defendant contends the trial court erred in denying his motion in arrest of judgment. Defendant asserts that the bill of information filed against him was defective because it did not allege that he was above the age of seventeen years and that the victim was below the age of seventeen. Defendant argues this omission is a substantial defect in the bill of information, and therefore grounds for arrest of judgment under C.Cr.P. 859.

Defects in the bill of information, caused by failure to list essential elements of the crime, are cured by the answers in response to the bill of particulars. See State v. LeJeune, 352 So.2d 619 (La.1977); State v. James, 305 So.2d 514 (La.1974).

Here, the state furnished defendant with answers to his bill of particulars on February 6, 1980. The information advised defendant he was charged with aggravated crime against nature on the victim in violation of R.S. 14:89.1. The crime was alleged to have occurred on July 8, 1977. Answers to the bill of particulars provided the following information: the crime occurred between 6:00 a. m. and 1:05 p. m. at 701 Josephine Street in Chalmette, Louisiana. Defendant was charged with violating R.S. 14:89.1(4) and (5).

At trial, the defense stipulated that Roy Vanderhoff was over seventeen years of age and at least three years older than the victim. The failure to allege the ages of defendant and the victim obviously did not prejudice defendant.

Defendant was informed of the nature of the crime with which he was charged. See State v. Gainey, 376 So.2d 1240 (La.1979).

The assignment lacks merit.

Assignment of Error No. 31

Defendant argues the trial court erred in denying his motion for a new trial on the basis of newly discovered evidence. Defendant and the state stipulated that subsequent to trial and sentencing, the victim had made allegations against another individual, accusing that person of acts similar to those committed by defendant. Defendant contends this information could have changed the jury’s verdict.

We are given no other facts to flesh out this stipulation, except that the sheriff investigated the complaint and no arrest was made. Defendant argues that this evidence substantiates his allegation that the victim made up this story about him. If the stipulation were that the child fabricated this new complaint, the defendant would be correct. But we are not told why no arrest was made, and can find no error of law in the ruling of the trial judge.

Assignment of Error No. 32

Defendant argues the trial court did not follow the sentencing guidelines of C.Cr.P. 894.1 in determining his sentence. He also argues that his sentence of ten years at hard labor is excessive.

The trial court carefully considered the criteria of C.Cr.P. 894.1 when it determined defendant’s sentence. The judge stated that he believed the testimony of the child and her mother regarding defendant’s actions in calling the victim into his house; the graphic description of the incident by the child, who is a slow learner, according to the court, corroborates the judge’s conclusion. The court noted that the presen-tence investigation report recommended that defendant not be placed on probation. The trial judge based defendant’s sentence on these facts in conjunction with the factors listed in C.Cr.P. 894.1. A sentence of ten years at hard labor was considered proper because of the nature of the offense and the circumstances surrounding it, as well as the fact that a lesser sentence would deprecate the seriousness of the crime.

R.S. 14:89.1 provided for penalties of not less than three nor more than fifteen years at hard labor. Defendant’s sentence of ten years at hard labor is well within the statutory range. The ten year sentence is not grossly disproportionate to the crime herein, and is not excessive under State v. Hogan, 403 So.2d 1210 (La.1981).

This assignment lacks merit.

For these reasons, defendant’s conviction and sentence are affirmed.

LEMMON, J., concurs.

      . R.S. 14:89.1 was amended by Acts 1979, No. 125, Sec. 1, after the commission of the offense by defendant. The statute now provides for penalties of not less than three nor more than fifteen years at hard labor without benefit of suspension of sentence, probation or parole.