author: SHIVERS, Judge.

text:
    DIXIE COUNTY SCHOOL BOARD and Morrison Assurance Company, Inc., Appellants, v. Lela STINSON, Appellee.
    No. VV-422.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.

      Jean A. Bice, Pattillo, MacKay & MeKeever, P. A., Ocala, for appellants.
    J. Randall Hooper, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellee.
   SHIVERS, Judge.

Employer/carrier appeal a workers’ compensation order finding claimant sustained a compensable industrial accident and awarding temporary total disability benefits from the date of the accident through the continuance of said class of disability. Although there is competent, substantial evidence to support the finding that the accident was compensable, the deputy commissioner erred in awarding temporary total disability benefits from the date of the accident through the continuance of temporary total disability because the claimant returned to work full time for nine months subsequent to the accident. Food Fair Stores v. Hesser, IRC Order 2-3159 (1977). A claimant is not entitled to temporary total disability benefits during the time period in which he or she returned to work and received full wages. Brevard County Board of Commissioners v. Brubaker, 9 FCR 104 (1974); cert. denied, 312 So.2d 760 (Fla.1975); Kent’s IGA Grocery v. Hutcherson, 8 FCR 42 (1973). Here, the claimant testified that she returned to work full time for the employer, two months after the accident and continued to work for nine consecutive months. A finding of temporary total disability from the date of the accident through the continuance of said class of disability is, therefore, not supported by competent, substantial evidence.

Accordingly, the order is affirmed in part and reversed and remanded for more adequate findings of fact with regard to claimant’s entitlement to temporary total disability benefits.

SHAW and THOMPSON, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    CENVILL COMMUNITIES, INC., Appellant, v. Joseph PIERRE, Appellee.
    No. VV-471.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.

      Randall J. DeHayes, West Palm Beach, for appellant.
    L. Barry Keyfetz, of Keyfetz & Poses, Miami, for appellee.
   THOMPSON, Judge.

The appellant challenges a workers’ compensation Order, contending in part that the Deputy Commissioner (“the Deputy”) erred by denying the appellant’s motion to change venue. We agree and reverse.

The appellee was injured in 1979, and shortly thereafter, the appellant filed a report of this injury, pursuant to § 440.185(2), Fla.Stat. (1979), listing a Palm Beach County mailing address. In 1980, a claim was filed, and on April 21, 1980, the Deputy entered a Notice of Hearing set for May 22, 1980 in Palm Beach County. On May 1, 1980, the appellant filed a motion to change venue to Broward County, alleging that this is where the appellee’s accident occurred. An emergency hearing was held on May 9, 1980 to consider this motion. On May 15, 1980, the Deputy entered an Order denying the motion. Subsequently, there was a hearing in Palm Beach County on the merits of the claim, and the appellant took this appeal from the Deputy’s Final Order, which issued from the May 22, 1980 hearing.

The appellee initially argues that this court has no jurisdiction to review the Deputy’s venue Order, because that Order was never appealed. However, this court does have jurisdiction to review that Order, which was non-final in nature. See Fla.R. App.P. 9.130(a)(3)(A) and 9.130(g). Also, the fact that the appellant’s Notice of Appeal did not refer to the venue Order does not preclude our consideration of that Order on this appeal from the Final Order. See, e. g, Auto Owners Ins. Co. v. Hillsborough Cty. Aviation Authority, 153 So.2d 722, 723-24 (Fla.1963).

Section 440.25(3)(b), Fla.Stat. (1979), provides in part that “[t]he hearing shall be heard in the county where the injury occurred, ... unless otherwise agreed to between the parties and authorized by the deputy commissioner in the county where the injury occurred.” At the emergency hearing, counsel for both parties agreed that the accident occurred in Broward County, and the appellant did not agree to an alternative venue. Nor did the Deputy in Broward County authorize a change of venue. Despite these facts, the Deputy denied the appellant’s motion to change venue as being untimely and inappropriate. That denial was error.

The appellee argues that the Palm Beach County address listed in the appellant’s “report of injury” should govern the issue of venue. This argument is without merit. Section 440.185(6), Fla.Stat. (1979), provides inter alia that such a report, filed pursuant to § 440.185(2), Fla.Stat. (1979), “shall not be evidence of any fact stated in such report in any proceeding relating thereto ...,” unless the parties otherwise stipulate. No such stipulation appears herein.

There was no evidence nor agreement to allow the hearing to be held in Palm Beach County. Moreover, the appellant’s motion to change venue to Broward County (the proper site) was timely filed. In this respect, the appellee’s claim letter failed to comply with § 440.19(2)(d), Fla.Stat. (1979), which requires that the claim specify the time and place of the accident. Thus, due to the appellee’s failure to specify where the accident occurred, the appellant asserted its right as to proper venue at the first available opportunity; i. e., shortly after receiving the Notice of Hearing. See Allstate Ins. Co. v. Briggs, 355 So.2d 499, 500 (Fla. 1st DCA 1978).

The Deputy’s venue Order is reversed and this cause is remanded with instructions to transfer venue to Broward County. In view of our disposition of this matter, we do not pass upon the issues raised by the appellant with regard to the Deputy’s Final Order. The transfer of venue to Broward County will result in a new hearing, and the Deputy in Broward County will make a de novo redetermination of all issues in this cause. See University Federal Savings and Loan Ass'n v. Lightbourn, 201 So.2d 568, 570 (Fla. 4th DCA 1967).

SHIVERS and SHAW, JJ., concur.


text:
    WALTER GLADES CONDOMINIUM, and Federal Insurance Company, Appellants, v. Petunia MORRIS, Appellee.
    No. VV-481.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Frank G. Cibula, Jr., West Palm Beach, for appellants.
    Thomas Hoadley, of Hoadley & Gavigan, West Palm Beach, for appellee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending in part that the Deputy Commissioner (“the Deputy”) erred in finding that the appellee (“the claimant”) has been temporarily totally disabled since her accident. We agree and reverse.

The claimant was injured in a work-related accident on July 20, 1978. In August 1978, she was examined by a physician, who told her that she should report back to work. She reported to her employer, but was told that she should not return to work until she was feeling well. The claimant has not returned to her employer since August 1978, nor has she sought other employment since then. On May 30, 1980, the Deputy entered his Order, finding in part that the claimant was temporarily totally disabled from the date of her accident until May 1980.

Temporary total disability is the healing period during which the claimant is totally disabled and unable to work, due to her injury. Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979). The claimant has the burden of proving that she is temporarily totally disabled. See City of Miami Beach v. Schiffman, 144 So.2d 799, 805 (Fla.1962). In this case, the claimant has failed to meet that burden.

There must be competent substantial evidence showing that the claimant is unable to work before she is entitled to temporary total disability benefits. There is a total lack of such evidence herein. There was no medical evidence that the claimant was unable to work. In fact, a physician told her that as of August 1978, she should return to work. Where there is no medical evidence that the claimant is unable to work, she is required to make a conscientious effort to return to work before she can establish that she is in fact unable to work. See Action Pool Builders, Inc. v. Grant, IRC Order 2-3743 (March 23, 1979); Mendivil v. Tampa Envelope Manufacturing Co., 233 So.2d 5 (Fla.1970).

Here, the claimant did make one effort to return to work, but before she began to work, she was told to come back when she was well. Thus, she did not test her ability to work. Also, she has never attempted to go back to work since August 1978. In this respect, the claimant testified that she has not attempted to return to work because she felt “unable” to do so. However, in the absence of medical evidence showing that she was unable to work, “[a] claimant cannot establish entitlement to temporary total [disability] benefits merely by testifying that [s]he did not make any effort to return to work because [s]he did not feel able to.” Martin Marietta Corp. v. Johnson, 7 FCR 355, 356 (1973), cert. den. 283 So.2d 557 (Fla.1973). See also Grant, IRC Order 2-3743. The claimant has not made a conscientious effort to return to work, and thus, under the facts herein, the Deputy erred in awarding her temporary total disability benefits.

As for the appellant’s contention that the Deputy erred in finding that the claimant gave timely notice of her accident, we affirm on this point because there is competent substantial evidence to support the Deputy’s finding.

The Deputy’s Order is reversed insofar as it awards the claimant temporary total disability benefits and interest on such benefits.

SHIVERS, and SHAW, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    ROLLINS BUILDING SERVICES, INC. and Crawford and Company, Appellants, v. Julia THOMAS, Appellee.
    No. VV-202.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.

      Bernard I. Probst of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Edward Schroll, Miami, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal an order finding that claimant has an average weekly wage of $160.00 and that she suffered a 10% permanent partial disability of the body as a whole. They contend that the Deputy Commissioner erred in basing claimant’s average weekly wage in part on her wages from her concurrent employment as a domestic servant in private homes. They further contend that the finding of a 10% permanent partial disability of the body as a whole is in error because the Deputy Commissioner failed to apply the deduction provision of Section 440.15(5)(c), Florida Statutes. We agree with the employer/carrier that the Deputy Commissioner improperly computed claimant’s average weekly wage but we affirm his finding of a 10% permanent partial disability of the body as a whole.

Claimant injured her back in a com-pensable accident on November 28, 1978. At the time of the accident, she was a part-time employee earning an average weekly wage of $53.00 with the employer. However, during the thirteen weeks preceding her accident with the employer, claimant held concurrent employment as a domestic servant in private homes earning an average of $107.00 weekly. The Deputy Commissioner combined these earnings and found that claimant had an average weekly wage of $160.00 entitling her to compensation at the rate of $96.00 weekly. We agree with the employer/carrier that this was error because wages earned by a claimant in employment excluded from coverage under the act are not includable in determining claimant’s compensation base. Jay Livestock Market v. Hill, 247 So.2d 291 (Fla. 1971). In Jay Livestock Market v. Hill, the Supreme Court refused to include the claimant’s wages from concurrent employment as a farm laborer in determining his average weekly wage since his employment as a farm laborer was specifically excluded from coverage under the Workmen’s Compensation Act. Similarly, claimant’s work as a domestic servant in private homes is specifically excluded from the definition of employment found in Section 440.02(l)(c), 1977 Florida Statutes. Following the rule provided in Jay Livestock Market v. Hill, and the cases cited therein, we conclude that claimant’s wages as a domestic servant in private homes are outside the operation of the Act and may not be used in determining her average weekly wage. While we have sympathy with claimant’s argument that the purpose of the compensation act is to compensate for loss of wage earning capacity due to a work connected injury and that what is involved is the capacity of the “whole man” not the capacity of the part time or full time worker, (see Justice Dekle’s dissenting opinion in Jay Livestock Market v. Hill, we are constrained to follow the mandate of the majority in that opinion that “sympathetic compassion for injured persons does not constitute a legal basis for allowing increased compensation not properly supported by the law.” (opinion at p. 292)

Concerning the employer/carrier’s argument that the Deputy Commissioner ignored the applicability of merger in this case and the deduction provision of Section 440.15(5)(e), we note the language of the Deputy Commissioner in his order that:

Consistent with the medical opinions of Dr. Logan, I find that the claimant has sustained a residual permanent physical impairment as a result of her accident with the employer herein of 10% permanent partial disability of the body as a whole. Although the claimant may have a greater overall permanent partial disability, I find that the accident with the employer herein caused a 10% permanent partial disability of the body as a whole. No award is made for any excess disability which the claimant may have and which may be attributable to prior back injuries.

We recognize that claimant had injured the same area of her back on two prior occasions, that Dr. Logan felt that claimant’s preexisting condition had weakened her back prior to this accident, that he rated claimant as 5 to 10% permanently partially disabled as a result of this accident, and that he felt as a result of all of claimant’s conditions she had a 10 to 15% permanent partial disability of the body as a whole. Nevertheless, we disagree that this evidence requires a finding of merger and the applicability of Section 440.15(5)(c). We agree with claimant that the controlling provision of Section 440.15(5)(c) is the last sentence which states:

However, in no event shall the compensation for the subsequent permanent partial disability be less than that allowed for the degree of disability that would have resulted from the subsequent injury or occupational disease if the previous disability had not existed.

Here, the Deputy Commissioner did not award any compensation benefits for merged disability, but only awarded benefits for the degree of disability that resulted from the subsequent injury. Accordingly, we find no error in the Deputy Commissioner’s finding of a 10% permanent partial disability.

The order is AFFIRMED in part and REVERSED in part and REMANDED for proceedings consistent with this opinion.

McCORD, J., and LILES, WOODIE A., Associate Judge (Ret.), concur.


author: LEMMON, Justice. PER CURIAM.

text:
    CAPITAL BANK AND TRUST COMPANY v. Freddie Lee LACEY and Edward J. Lacey.
    No. 67416.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Feb. 13, 1981.
    Coxe & Coxe, James R. Coxe, III, Baton Rouge, for defendant-applicant.
    Gary & Field, Russell L. Dornier, Baton Rouge, for plaintiffs-respondents.
   LEMMON, Justice.

This is a suit for a deficiency judgment to recover the balance due by Freddie Lacey on a promissory note after distribution of the proceeds of a judicial sale of Lacey’s tractor and dump truck in an earlier execu-tory proceeding filed to enforce the chattel mortgage securing the note. Lacey answered, alleging that the vehicle was defective and that plaintiff took the note subject to the claims and defenses he could assert against the seller of the vehicle, who had transferred the note to plaintiff. Lacey also filed a separate suit against the seller, and the matters were consolidated for trial.

The trial court found the vehicle was defective and dismissed this suit. However, the court of appeal reversed, holding that plaintiff was a holder in due course and was entitled to recover the balance due on the note.

We granted Lacey’s application for cer-tiorari on the belief that the judgment of the court of appeal conflicted with our decision in Jefferson Bank and Trust Co. v. Stamatiou, 384 So.2d 388 (La.1980). In the Stamatiou case we held that the holder of a promissory note secured by a chattel mortgage was subject to the maker’s defenses against the seller of the chattel when the mortgage contained the preservation of defenses language required in consumer credit contracts by 16 C.F.R. 433, even though the mortgage was not a consumer credit contract and the language had been inadvertently inserted. In the present case, however, our examination of the note and the mortgage reveals that the preservation of defenses language is not included, and the Stamatiou decision is therefore inappropriate.

Lacey contends, nevertheless, that the transaction did indeed qualify as a consumer credit contract and that the defenses he could assert against the seller were available against plaintiff. On the other hand, plaintiff contends that the transaction was a sale of goods for commercial use, which is not covered by the federal regulation.

16 C.F.R. 433 does not purport to make the subsequent holder of a consumer credit contract automatically subject to the claims and defenses which the debtor could assert against the seller of the goods or services. Rather, the federal regulations merely declare it an unfair trade practice for a seller to accept the proceeds of a purchase money loan unless the consumer credit contract includes the preservation of defenses language, and the regulations further provide a penalty for violation. It is the inclusion of the required language that, by making the promise to pay conditional, prevents a subsequent holder from becoming a holder in due course.

If this transaction was a consumer credit contract, then the seller may be subject to a penalty for violation of the regulation which requires the preservation of defenses language. But plaintiff, who has established that it is otherwise a holder in due course, is not affected by the seller’s acceptance of the purchase money loan proceeds without including the required language.

The judgment of the court of appeal is affirmed.

AFFIRMED.

On Application for Rehearing

PER CURIAM.

On application for rehearing defendants contend that our opinion on original hearing did not dispose of their exceptions of no right of action and nonjoinder of an indispensable party.

The peremptory exceptions were filed after this court granted defendants’ application for certiorari, but before submission of the case for decision. C.C.P. art. 2163 authorizes this court to consider peremptory exceptions filed for the first time in an appellate court, if the pleading is filed prior to submission of the case for decision and if proof of the ground of the exception appears of record.

The proof necessary to support defendants’ exceptions is not in the record on appeal. Defendants attached a transcript of testimony taken in another proceeding to their exceptions filed in this case. Of course, we cannot consider any evidence that was not admitted in this case in the trial court or that was not added to the record on appeal by stipulation of the parties, and we simply declined to consider the exceptions on original hearing.

Defendants now request that we remand the case for proper introduction of evidence which might support the exceptions. We view defendants’ assertion that plaintiff bank improperly obtained a judgment on a note at a time when it was not the holder as an allegation of ill practice, which is more properly addressed to a separate action for nullity of judgment. Without commenting on the merits of that assertion, we merely deny defendants’ request for a remand in this case.

The application for rehearing is denied.

      . In the consolidated case the court of appeal affirmed a judgment in favor of Lacey for damages against the seller. This court denied cer-tiorari, and that judgment is now definitive.

      . 16 C.F.R. 433.2 provides in pertinent part:
      “In connection with any sale or lease of goods or services to consumers, in or affecting commerce as ‘commerce’ is defined in the Federal Trade Commission Act, it is an unfair or deceptive act or practice within the meaning of Section 5 of that Act for a seller, directly or indirectly, to:
      * * * * *
      “(b) Accept, as full or partial payment for such sale or lease, the proceeds of any purchase money loan (as purchase money loan is defined herein), unless any consumer credit contract made in connection with such purchase money loan contains the following provision in at least ten point, bold face, type:
      “NOTICE
      “ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.”

      . Defendants contended they learned, at a hearing in relation to defendants’ execution of their judgment against the seller of the truck rendered in a consolidated case, that plaintiff bank had assigned their account to the seller of the truck prior to rendition of the judgment in this case. Defendants argue plaintiff bank should not have proceeded to obtain a judgment after it no longer had a real and actual interest in the action.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Freddie HOLMES.
    No. 67360.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was convicted of armed robbery and two counts of attempted armed robbery, violations of R.S. 14:64 and R.S. 14:27. On this appeal, it is argued that defendant did not have the capacity to stand trial, and that the case should be remanded to initiate another sanity commission.

The defendant requested the district court to appoint a sanity commission prior to trial. C.Cr.P. 642. Two licensed physicians examined defendant. One of them, Dr. Silva, is a practicing psychiatrist. He examined the defendant on November 4, 1979. The other physician, Dr. Landry, is a parish coroner. His examination was conducted on October 23, 1979. These two doctors testified at the hearing to determine the defendant’s capacity to proceed on November 14, 1979.

Dr. Silva testified that it was “almost impossible to carry [on] a rational conversation” with the defendant; he characterized the defendant’s answers during the examination as uncooperative and unresponsive. The gist of Dr. Silva’s findings is contained in the following testimony:

“... if [the defendant] behaved with his counsel the way he behaved with me, obviously, he could not assist counsel. The question was, [was it] a volitional thing or not? I could not make a differentiation.”

In short, Dr. Silva found that he could not reach a conclusion as to the defendant’s ability to stand trial, because he was unable to determine whether defendant’s uncoop-erativeness and ostensible disorientation resulted from a mental incapacity, or were part of a deliberate effort to avoid trial. Dr. Silva recommended that defendant be subjected to “a more prolonged examination;” his own examination was said to have lasted no more than half an hour.

Dr. Landry’s testimony was substantially in accord with Dr. Silva’s. He reported that defendant “kept rambling on and on about unrelated events” and was otherwise uncooperative:

“So, I was unable to really do a sanity hearing on him. He would not answer questions.”

While Dr. Landry strongly suspected that defendant was malingering, and intentionally being unresponsive, he testified that he did not know whether defendant was not able or whether he simply was not willing to cooperate. Dr. Landry, too, felt that defendant should be subject to “longer observation of his mental status.”

The district judge then called the defendant to the stand (over objection) and asked him a wide variety of questions, such as the defendant’s age, his education, his family background, his work experience, his knowledge of voodoo and his alleged conversations with ghosts. The defendant gave his age as twenty-one; according to his wife, he is thirty-two. Defendant stated that he did not know what month it was; he knew his wife’s name but could not recall her age; he was less than certain of what wages he earned when he worked as a welder. When asked, “Do you know what you’re charged with?” defendant replied “indecent exposure.” Nevertheless, defendant stated that he was cursed, kicked and struck by police officers after his arrest, that he took seven preludin tablets prior to his arrest, and that he had “been shooting drugs for nine or ten years.” Based on this questioning, and upon the inconclusive nature of the sanity commission’s reports, the district judge determined that defendant was capable of standing trial, and that his manifest incapacity was deliberately staged:

“It’s obvious the defendant, from the rap sheet, has extensive knowledge of criminal proceedings and procedures. The defendant has a very selective recall. He remembered his defense, that he was doped up with preludin. He remembered the incidents of the manner in which the officers treated him at the time of the arrest. Yet, he testifies, after sitting through an entire preliminary examination, he doesn’t remember anything that was said at that preliminary examination. The Court, after examining the demeanor and the attitude of the defendant, concludes that the defendant is intentionally malingering and attempting to thwart the judicial process by trying to convince people that he is — has a mental disease or defect. This Court concludes that he does not or that the defendant has not demonstrated that there is a mental disease or defect which prevents the defendant from assisting counsel or from understanding the proceeding instituted against him.”

When trial was commenced on December 10, the defendant was unable to present any additional evidence relevant to his capacity to stand trial. The trial judge therefore refused to reopen the sanity hearing.

It is fundamental that a defendant without the capacity to understand the proceedings against him or to assist counsel in preparing a defense may not be subjected to trial. C.Cr.P. 641; Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The various criteria which should be considered in evaluating a defendant’s capacity to stand trial were articulated by this court in State v. Bennett, 345 So.2d 1129, 1138 (La.1977):

“... Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial....”

It has been repeatedly held that a defendant must prove his incapacity to stand trial by a clear preponderance of the evidence.

State v. Hamilton, 373 So.2d 179 (La.1979); State v. Coco, 371 So.2d 803 (La.1979); State v. Lawrence, 368 So.2d 699 (La.1979); State v. Weber, 364 So.2d 952 (La.1978); State v. Veal, 326 So.2d 329 (La.1976); State v. Flores, 315 So.2d 772 (La.1975); State v. Marks, 252 La. 277, 211 So.2d 261 (1968).

Because the defendant here is an indigent, and forced to rely exclusively upon the findings of the court appointed sanity commission rather than a private physician of his own choice, C.Cr.P. 646, he is entitled to a thorough examination, and ought not be responsible for any lack of diligence by the commission appointed to examine him. State v. Coco, supra; State v. Bennett, supra. Both doctors who testified at the sanity hearing indicated that the defendant’s examinations were unproductive. Both concluded that more time was needed to ascertain whether defendant’s inability to cooperate was genuine or feigned. The problem was not with the thoroughness of the examinations, but with the futility of examining the defendant. No allegation is made that the two physicians were not conscientious in attempting to complete the task for which they were appointed. That their findings were inconclusive does not indicate that their efforts were not diligent.

Faced with the testimony of two doctors who were reluctant to offer an opinion based upon their fruitless exchanges with the defendant, the district judge questioned the defendant himself. We find no error in this procedure. It is ultimately the responsibility of the judge to determine whether a defendant possesses the mental capacity to proceed to trial. C.Cr.P. 647. The report of the sanity commission is admissible as evidence, but it cannot be used as a substitute for the court’s own judgment. State v. Lawrence, supra; State v. Crochet, 354 So.2d 1288 (La.1977); State v. Bennett, supra. Moreover, a trial judge’s determination of a defendant’s capacity to stand trial is entitled to great weight. State v. Hamilton, supra; State v. Coco, supra; State v. Lawrence, supra; State v. Weber, supra; State v. Morris, 340 So.2d 195 (La.1976); State v. Flores, supra. Here, the trial judge did not refuse to accept the opinion of medical experts: no opinion as to the defendant’s capacity to stand trial was offered, other than the suspicion that defendant was malingering. The issue is not whether the sanity commission usurped the judge’s function, but whether the judge could reasonably make a determination of defendant’s present sanity when the doctors could not.

Accordingly, the evidence adduced at the sanity hearing and the judge’s decision must be evaluated in light of the considerations outlined in State v. Bennett, supra. The judge, who had also presided over the defendant’s preliminary examination, concluded that the defendant was aware of the charges he faced, despite the fact that defendant said he was charged with indecent exposure. This determination was apparently based upon observation of the defendant’s outward demeanor, and upon the fact that defendant occasionally demonstrated an adequate recollection of important events. It was also thought significant that defendant could recall taking seven preludin tablets prior to his arrest, since this allegation dovetailed with defendant’s plea of not guilty and not guilty by reason of insanity. The judge concluded that defendant’s “almost unbelievably extensive history of criminal activity,” including a murder conviction, necessarily indicated that defendant had an awareness of his legal rights and the consequences of conviction. Defendant admitted that he told his lawyer to contact his wife, but was unresponsive when questioned whether he told counsel to contact any other witnesses. Defendant denied being on parole, claiming that he was “free on the street,” but admitted to being incarcerated at Angola once. The defendant had only a sixth grade education, but nothing in the record indicates that he is mentally retarded, or that he has ever been treated for mental illness.

Trial was held approximately a month after the sanity hearing was completed. An examination of the trial record supports the finding that defendant understood the charges against him and was able to assist in his own defense. In fact, defendant took the stand and testified as to his history of criminal convictions, noting that he had been “multiple billed” on one occasion. His testimony revealed a familiarity with criminal procedures and processes. Defendant recounted his 1967 conviction for manslaughter and the granting of a new trial in that case. He remembered the length of his imprisonment, the fact of his parole, and the fact that he subsequently “copped out to a simple robbery charge” in 1976.

Moreover, defendant remembered exactly what he had been charged with after his arrest — armed robbery and two counts of attempted armed robbery. But, consistent with his defense of insanity, he stated that he had injected himself with seventy-five milligrams of preludin half an hour before the robbery and lost his memory until the next day; he claimed that, when he took preludin, he began to feel “mean” and “hateful,” and that his thoughts became “paranoid.” Defendant also said that he was going through a difficult withdrawal period in jail, and that he needed help. On cross-examination, defendant admitted that his memory had been poor when he was examined by the two physicians on the sanity commission, but that some of his memory had now returned.

Dr. Landry took the stand and substantially repeated the testimony given at the sanity hearing. He also observed that, “After listening to [defendant] today, obviously, he is a lot better today than when — than when I talked to him a month and a half ago. There’s no comparison in the two people.”

There can be little doubt that, whatever defendant’s condition was at the time of the sanity hearing, he was entirely competent to stand trial at the time trial commenced. Whether his “improved” status was a result of withdrawal from drugs or a consequence of the necessity of presenting a defense is not relevant. Under the standards of State v. Bennett, supra, defendant was capable of standing trial: he understood the nature and seriousness of the charge, the character of his own defense, and the consequences of conviction. Defendant was able to remember the events before the offense occurred and testified in a way that was entirely consistent with his defense; from a reading of the record, he was not suffering from a deteriorated mental condition. Although the trial judge’s questioning of the defendant did not completely cover the relevant guidelines, defendant's conduct at trial discredited his prior claim of incapacity. A defendant cannot prove the incapacity to stand trial merely by having stymied the efforts of the sanity commission. There was no abuse of discretion in the judge’s determination that defendant did not satisfactorily show that he lacked the capacity to understand the proceedings against him or to assist in his defense. The trial record confirms the discretion exercised by the judge.

The conviction and sentence are affirmed.


author: WATSON, Justice.

text:
    Warren LESTER v. REBEL CRANE AND SERVICE COMPANY, and Insurance Company of North America.
    No. 67542.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Dissenting Opinion March 13, 1981.
    See 394 So.2d 1230.

      Harold L. Molaison and Associates, J. William Starr, Gretna, for plaintiff-applicant.
    Robert J. Young, Jr., Young, McMahon & Levert, New Orleans, for defendants-respondents.
   WATSON, Justice.

This is a suit for workmen’s compensation benefits. The only issue is prescription.

Plaintiff, Warren Lester, was injured on June 15, 1974. Lester was in the course of his employment with Rebel Crane and Service Company, defendant, when a burglar shot him three times. One bullet penetrated the stomach and went up into the chest, collapsing the left lung. The bullet remains in the chest. Lester’s colon, stomach, small bowel, liver and diaphragm were injured. After the initial surgery, a second operation was necessary.

Lester was released to return to work on August 10,1974, but developed an incisional hernia at the abdominal operative site one month later. This hernia was repaired in September of 1974; Lester was off work approximately six weeks. Another hernia was apparent on February 26, 1975. Surgery on this second incisional hernia in the abdominal wall was performed March 25, 1975, and Lester was discharged May 20, 1975.

The next hernia was apparent on March 10, 1976, within one year of the prior surgery. The operative repair was not done until March 3, 1977. In January of 1978, another hernia appeared. Surgery was performed March 30, and Lester was discharged to light duty on April 11, 1978.

After his accident, Lester received compensation benefits from the defendant insurer, Insurance Company of North America, plus a supplement from Rebel. Lester received a supplement to his compensation from September 15 through September 29, 1974, and during the week ending April 6, 1975. Lester’s full salary was paid during his subsequent hospitalizations and periods of disability. It was stipulated that the wages paid were in lieu of compensation. An affidavit by J. J. Henderson, president of Rebel, states that Lester was last paid his full salary in lieu of compensation for the period from April 1 through April 20, 1978.

Lester received a letter from the insurer’s agent on April 6,1977, advising him that his workmen’s compensation claim had prescribed on May 19, 1976, but the company would continue to pay the medical bills. A copy of this letter was sent to the employer. Lester testified that he asked Henderson about the letter, but Henderson told him not to worry about it because he was getting his full salary.

Suit was filed on February 28, 1979, and dismissed on defendant’s exception of prescription. The trial court reasoned that any claim for the accident of June 15, 1974, had expired on June 15, 1976, under the two year period of LSA-R.S. 23:1209 and, alternatively, that the suit had prescribed because one year had elapsed after the last payment of compensation benefits in April of 1975. In connection with the medical expenses, it was noted that one complete year had never elapsed in which Lester was not treated by a physician for work related injuries. The court of appeal affirmed the trial court judgment on the ground that the suit was brought more than two years from the date of the accident.

The two year prescriptive period in LSA-R.S. 23:1209 for injuries which do not manifest themselves immediately after an accident is not applicable to Lester’s claim. The purpose of the legislative provision is to prevent an employee who suffers an accident with no apparent resulting injury from coming into court over two years later and claiming an injury. See Zeringue v. Liberty Mutual Insurance Company, 248 So.2d 83 (La.App. 4 Cir. 1970) writ denied 259 La. 61, 249 So.2d 203 (1971). The two year period is a legislative determination that such cases are too suspect to come within the purview of the compensation law. Here, Lester’s injury was immediately apparent and he has had a succession of complications which are unquestionably accident related. Each complication has been manifest within one year of the preceding one. The employer chose to pay Lester his full salary in lieu of compensation during each recurrence. Since it was stipulated that the wages paid were in lieu of compensation, a factual determination of that question is unnecessary. Lester was discouraged from seeking workmen’s compensation benefits by the continuation of his salary during periods of disability. The last wages in lieu of compensation were paid for the period ending April 20, 1978, within one year of the date of filing this suit. The payment of wages in lieu of compensation interrupted the two year prescriptive period provided in LSA-R.S. 23:1209. Lester’s suit has not prescribed.

For the foregoing reasons, the judgment sustaining defendants’ exception of prescription is reversed, and the matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BLANCHE, J., dissents and will hand down reasons.

DENNIS, J., concurs with reasons.

      .LSA-R.S. 23:1209 provided in June of 1974 that:
      “In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

      . Although the two year period has been termed peremptive and therefore not subject to interruption, this is an incorrect jurisprudential overlay on a statute with the title of “Prescription”. See Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.,1973) and the Comment at 41 La.L.Rev. 220.

      . Alternatively, it is noteworthy that LSA-R.S. 23:1221(4)(q)(iv) provides: “Recurrence of the hernia following surgery shall be considered as a separate hernia ... ”, Owens v. Liberty Mutual Insurance Company, 307 So.2d 313 (La.,1975), refers to this section as “self-contained ”, 307 So.2d 316. Each recurrence of hernia following surgery is a separate hernia for purposes of prescription. Owens, supra. The factual and legal cause of the recurrent hernias is the original accident, but a new prescriptive period begins with each recurrence. Owens, supra. Since Lester’s last hernia recurrence was in January of 1978, and suit was filed within one year, on February 28, 1979, plaintiffs claim has also not prescribed under this rationale.


author: DENNIS, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Freddie BIAS.
    No. 67803.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Robert Bryant, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Wilford Carter, Lake Charles, for defendant-appellant.
   DENNIS, Justice.

The issue in this case is whether the district court properly exercised its discretionary powers to exclude the testimony of an undisclosed alibi witness for the defendant under La.C.Cr.P. Art. 727. We hold that the district judge did not properly exercise his discretion and remand the case for an evidentiary hearing on whether the witness should have been excluded.

Defendant, Freddie Bias, was tried and convicted of aggravated rape in violation of La.R.S. 14:42, and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On appeal defendant argued five assignments of error. With the exception of assignment number one, the assignments present no reversible merit or new questions of law and are governed by the well-settled legal principles set forth in an unpublished appendix to this opinion.

In accordance with La.C.Cr.P. Art. 727, the attorney for the prosecution made a written demand on defendant for notice of alibi on May 25, 1979. Defendant failed to file a notice of alibi before the commencement of trial on April 9, 1980. After the state’s first witness was sworn, but before any testimony was given, the defense counsel gave oral notice to the state that “the defense may offer evidence in this case as far as alibi is concerned, and ... we will supply the state at the first recess any ... evidence we have at this time in connection with any alibi evidence.” The state objected, and the trial judge deferred ruling until the next day, when he ruled that the alibi witness would be excluded because the notice had come too late.

Art. 727 provides that if either party fails to comply with the notice requirements of the article, “the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from ... the scene of the alleged offense.” If, however, the notice requirement of the article is not met, “the court may grant an exception ... for good cause shown.” La. C.Cr.P. Art. 727. Article 727 is identical to Federal Rule of Criminal Procedure 12.1 and evidently represents a legislative determination to adopt the substance of the federal rule as interpreted by the courts.

It is undisputed that defendant did not comply with the notice provisions of Art. 727. Defendant contends however, that the district court abused its discretion by imposing the sanction of Section D of the article, i. e., exclusion of the testimony of the alibi witness, and further, the court abused its discretion by not granting an exception to the notice requirements of the article because of “good cause shown.”

In United States v. Myers, 550 F.2d 1036 (5th Cir., 1977), the Fifth Circuit U.S. Court of Appeals enumerated the factors to be considered in determining whether the trial court properly exercised its discretionary power to exclude the testimony of an undisclosed witness under Section D. The court stated:

[A] district court should consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant’s guilt, and (5) other relevant factors rising out of the circumstances of the case. Cf., Advisory Committee Notes on rule 16 of the Proposed Rules of Criminal Procedure, 39 FRD 69, 178 (1966). (footnote omitted). 550 F.2d at 1043.

Although Myers involved the failure of the government to comply with the requirements of the notice of alibi rule, these factors are applicable to a case in which the defendant fails to comply. United States v. White, 583 F.2d 899 (6th Cir., 1978).

Accordingly, before a district court may preclude a witness from testifying under Paragraph D of Article 727, it must properly exercise its discretionary powers. Moreover, when the exclusion of a defense witness is being considered, there are constitutional implications which cannot be ignored. The Sixth Amendment of the United States Constitution guarantees that “the accused shall enjoy the right to ... have compulsory process for obtaining witnesses in his favor.” The United States Supreme Court has held that the right to compulsory process includes “[t]he right to offer the testimony of witnesses, ... the right to present a defense, the right to present defendant’s version of the facts ...” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); see also, Art. I, § 16 of the 1974 Const. Whether and to what extent a state may “enforce discovery rules against a defendant who fails to comply, by excluding relevant evidence” has been expressly recognized and left open by the Supreme Court as a question raising Sixth Amendment issues. Wardius v. Oregon, 412 U.S. 470, 472 n. 4, 93 S.Ct. 2208, 2211 n. 4, 37 L.Ed.2d 82, 86 n. 4 (1973); Williams v. Florida, 399 U.S. 78, 83 n. 14, 90 S.Ct. 1893, 1897 n. 14, 26 L.Ed.2d 446, 451 n. 14 (1970).

Our review of the record in the present case convinces us that the district court judge did not properly exercise his discretionary power in excluding the testimony of the defense witness. He applied Art. 727 as a mandatory rule excluding the testimony of an undisclosed alibi witness upon the failure of the defendant to comply with the notice requirement. He did not consider in determining whether to exercise his discretionary power to exclude the testimony of the undisclosed witness whether the prosecution would have been prejudiced by the failure to disclose, and if so, to what extent, the reason for the nondisclosure, the extent to which the harm caused by nondisclosure would have been mitigated by subsequent events, the weight of the properly admitted evidence supporting the defend-.,, ant’s guilt or any other relevant factors arising out of the circumstances of the case.

For the foregoing reasons, we remand this case to the district court for an evidentiary hearing and for the court to consider the enumerated factors and any other relevant factors in determining whether the testimony of the defense witness should have been excluded. Since we find no trial error except that of the failure to properly exercise discretion in excluding the alibi witness, it is not necessary at this time to reverse the conviction and order a new trial, because the error might be eliminated on a proper consideration of the pertinent factors. Cf., State v. Simmons, 328 So.2d 149 (La.1976). We reserve to the trial judge power to grant a new trial should he determine that the testimony of the defense witness should not have been excluded (a matter on the merits of which we express no opinion). If, on the other hand, the trial judge determines, after a hearing, that the defense witness was properly excluded the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

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

REMANDED.

******

WATSON, J., dissents from the remand.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Because denial of defendant’s right to present witnesses is a very sensitive area, I hesitatingly join in the remand in this case, which in effect gives defendant a second chance to establish that the denial constituted an abuse of discretion.

In the trial court defense counsel made no attempt to establish good cause, which the trial judge would have to consider in deciding whether to grant an exception to the time limitations for notifying the district attorney of the intention to present an alibi defense. After the first witness was called, defense counsel merely stated he had just learned “there may be some alibi evidence available”. On the following day, when defense counsel made no further effort to establish good cause, the trial judge ruled the notice came too late. Never did defense counsel state for the record the identity of the witness who would give alibi testimony, the nature or import of the evidence, or the reason he had not discovered the evidence earlier. Never (even in this appeal) has the defense offered any factual allegations which would tend to establish a good cause for the granting of an exception to the notice requirement.

Under these circumstances the trial judge did not abuse his discretion, because he was never presented with any facts which may have dictated that he exercise that discretion to admit alibi evidence despite the lack of notice. Nevertheless, since the majority decision does not reverse the conviction and will ultimately insure that defendant had a fair opportunity to present all favorable evidence, I concur in the result. I point out, however, that the evidence to be presented on remand should have been offered contemporaneously with the request that the trial court grant an exception to the notice requirement, and I will be included in the future to review the exercise of discretion solely on the basis of facts contemporaneously presented (or proffered) to the trial court.


author: BLANCHE, Justice. MARCUS, Justice

text:
    Henry F. WILLIAMS v. WINN DIXIE OF LOUISIANA, INC.
    No. 80-C-1384.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      Dennis R. Whalen, Baton Rouge, for plaintiff-applicant.
    Peter T. Dazzio, Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-respondent.
   BLANCHE, Justice.

Plaintiff filed suit for damages arising out of injuries he allegedly received when he slipped and fell on some liquid in an aisle of one of defendant’s grocery stores. The evidence adduced at trial indicates that a bottle of some liquid (probably vinegar) struck the floor of an aisle near the front of the store, broke, and spilled at least a portion of its contents onto the floor. Plaintiff slipped on the substance and fell to the floor, scraping his elbow and allegedly injuring his back.

The trial court found that the spilled substance created an unreasonably dangerous condition and that defendant owed plaintiff a duty to correct the condition or warn plaintiff of its existence. It further held that the risk of plaintiff’s fall was within the ambit of that duty but concluded that defendant had not breached the duty. The court made a factual determination that there was a lapse of only one to three minutes between the time the liquid was spilled onto the floor and the time of plaintiff’s fall and that an employee of defendant had been dispatched to clean up the spill and was on his way to the area with a mop when plaintiff fell. Because of these facts, the court held that defendant was in the process of taking reasonable action to satisfy its duty to correct the situation and that it had no duty to warn plaintiff of the danger. On appeal, the First Circuit Court of Appeal affirmed the trial court’s findings of fact and its application of the law to the facts. That appellate court denied plaintiff’s application for a rehearing. We granted plaintiff’s application for a writ of certiorari to review the appellate court decision and now reverse that decision, remanding this case to the court of appeal for the following reasons.

The evidence reveals that on the evening of October 25,1975, a bottle of liquid which defendant’s employees testified was vinegar crashed to the floor of an aisle near the front of the store. The identity of the individual who dropped the bottle or caused it to break was never determined. The manager and assistant manager of the store were in the office at the time and heard the crash of the bottle breaking. According to the testimony of the manager and assistant manager, they could see the broken glass and spilled liquid from their vantage point in the office. (Apparently, the office was raised above floor level, allowing an occupant to look down over at least some of the remainder of the store.) The assistant manager called over the public address system for a particular worker to come to the aisle and clean up the spill. Before the worker did so, plaintiff slipped and fell in the liquid.

Three persons who were employed at defendant’s store at the time of the accident testified as to the lapse of time between the bottle breaking and plaintiff falling. The assistant manager testified that a minute or two, at the most three minutes, passed between the time the bottle broke and plaintiff fell. The manager testified that the bottle had broken about one to two minutes before plaintiff fell. The person summoned to clean up the spill estimated that a time period of no more than two minutes elapsed from the time he heard the bottle break (from where he was working in the rear of the store), was told over the public address system to clean up the spill, retrieved the mop from the rear of the store (the warehouse) and brought it up to the front aisle where the spill was located and where he saw plaintiff lying. Plaintiff testified that he did not know how long the liquid had been on the floor and that he did not hear any glass break while he was in the store. Plaintiff was only in the store to purchase one item — a sack of potatoes — and was on his way to the checkout counter when he slipped and fell.

Again, from the above testimony, the trial court found that the liquid had only been on the floor for 1 to 3 minutes and that defendant’s employees were in the process of taking reasonable action to satisfy its duty to correct the situation. It found that there was not sufficient time for defendant to actually correct the problem and held that there was no duty on the part of defendant to warn plaintiff in the interim. We disagree with this holding.

The trial judge cited several decisions in support of his view that the duty a store owner owes to the patrons of its store is a duty to correct a dangerous situation or warn of it. Dillman v. Nobles, 351 So.2d 210 (La.App., 4th Cir. 1977); Harrington v. Kroger Co., Inc., 279 So.2d 814 (La.App., 2d Cir. 1973); Ellington v. Walgreen Louisiana Co., Inc., 38 So.2d 177 (La.App., 2d Cir. 1949). In its brief affirmance of the trial court’s decision, the court of appeal cited Harrington, supra, and two decisions dealing with failure to discover a dangerous condition. The latter decisions are inapplicable to the facts of this case since the dangerous condition was immediately discovered by the instant defendant. Dillman, Harrington and Ellington do not hold that where the correction has not yet occurred but preparations are being made to correct the dangerous situation there is no duty to warn customers of that situation. We hold that such a duty to warn does exist.

We find that what is often considered an alternative duty to correct or warn where an unreasonably dangerous condition is found to exist on a defendant’s premises had been stated as follows:

“The owner, occupant, or person in charge of property owes an invitee ... the duty of exercising reasonable or ordinary care for his safety and is liable for injury resulting from breach of such duty. This duty includes that of exercising reasonable care to keep the premises in a reasonable condition or of warning invitees ... of hidden or concealed perils of which he knows or should know in the exercise of reasonable care, so that those whom he has invited to enter upon or use his property shall not be unnecessarily or unreasonably exposed to danger.” Foggin v. General Guaranty Ins. Co., 250 La. 347, 195 So.2d 636 (1967). (Footnote 1 added).

In other words, the duty is to keep the premises safe (via repair or correction of unsafe conditions if necessary) or to warn of the danger if an unsafe condition exists. A statement of alternative duty to warn or correct should not be distinguished from the above statement of duty and should not be taken to require anything other than actual correction or repair of a dangerous condition (not the preparation to make a correction) or, alternatively, a warning of the dangerous condition pending the actual correction.

The Third Circuit Court of Appeal recognized such a duty in Cline v. Kroger Co., Inc., 379 So.2d 1184 (La.App., 3d Cir. 1980). In that case, a bottle of liquid cleanser fell from a checkout counter, breaking and spilling on the floor of the checkout aisle. Plaintiff slipped and fell in the spill and was injured. The store employee at the checkout counter called over the public address system for a cleanup, but remained behind the register and did not stand near the spill to warn customers of the danger. The court held that this employee “had a duty at the time to remain watchful for any approach to her aisle and prevent persons from entering it.” Since she had not done so, the court held that defendant had breached its duty to plaintiff.

In setting out the above duty, we emphasize that after the initial discovery of the dangerous condition, the store owner has the burden to actually correct it or to warn of the danger while corrective procedures are taken, if such a warning is reasonably possible. For example, in Harrington v. Kroger Co., Inc., supra, the court correctly found that the spill had occurred only seconds before the fall and defendant had no opportunity to clean the spill or warn of its danger. The facts in Harrington are very close to those of the instant case. In Harrington, “an employee in the office near the express checkout counter, testified she heard the bottle drop, called on the intercom for a porter to clean it up, and saw plaintiff fall — all within a matter of seconds.” The court of appeal in that case expressly approved the lower court’s conclusion of fact that the injured plaintiff fell almost immediately after the breakage of the glass and before the store employees had an opportunity to remedy the situation or warn plaintiff of the danger.

We find that employees of defendant did have an opportunity to warn plaintiff of the danger. Both the manager and assistant manager of this particular store of defendant’s testified that they heard the glass bottle break and could see the breakage in a front aisle from their location in the store’s office near the front aisle. When questioned as to why they did not post someone to warn plaintiff pending the arrival of a worker to clean the spill, the assistant manager stated that he had notified someone to clean the spill, there was not much traffic in the store and one could see the vinegar. In response to the same inquiry, the manager stated that he really did not know why the assistant manager did not stand at the spill to warn customers, and speculated that he may have had customers at the office. Neither of these witnesses indicated that the justification was that there was no time for a warning from them prior to the fall, although they did testify that they were busy filling out Saturday night reports in their office at the time the bottle was broken.

We find that the court of appeal was manifestly erroneous in affirming the lower court decision. We hold that defendant did have a duty to warn plaintiff of the unreasonably dangerous condition of its aisle pending the correction of the condition, and that defendant had a reasonable opportunity to do so. Even accepting the estimation by defendant’s employees of the time lapse between the spill and the fall as 1 to 3 minutes, considering the fact that defendant employees saw the spill and were in the same front area of the building as the spill, it was reasonably possible for them to warn plaintiff during this 1 to 3 minute period while awaiting the arrival of a person to clean up the spill.

Defendant argues that should this Court find negligence on its part, plaintiff should be barred from recovery because of alleged contributory negligence on his part. Defendant contends that plaintiff had been drinking alcoholic beverages and did not notice and avoid the spill as he should have because of this reason or because plaintiff was otherwise inattentive. We find that defendant has not met his burden of proving either contention.

The manager, assistant manager and worker who cleaned up the spill all testified that plaintiff’s breath smelled of alcohol. The assistant manager also testified that plaintiff mumbled, and the manager stated that plaintiff could really not answer his questions in order to fill out the accident form and had trouble walking. Plaintiff on the other hand, testified that he had not been drinking on that day. He was sure he had not been drinking in 1975 since he had diabetes, was taking medicine and was afraid to drink. The manager and assistant manager testified that they were not familiar with the smell of a diabetic’s “acetone breath”. Plaintiff’s wife testified that plaintiff had not been drinking prior to the time he left for the grocery store on the day of the accident and did not act or smell as if he had been drinking when he returned. The above evidence does not establish that plaintiff had been drinking and that his consumption of alcohol caused him to slip and fall on the spill. The additional testimony that plaintiff “mumbled”, “had difficulty walking”, and “could not answer questions” does not change this conclusion. The witnesses did not elaborate at all on these simple statements, and any difficulties plaintiff may have experienced could be attributed to his fall.

Defendant alternatively contends that plaintiff was negligent in failing to hear the bottle breaking and/or observe or smell the spill, and walk around it. However, defendant did not prove that plaintiff was in the store when the bottle broke. Further, plaintiff testified he had just come around a corner and walked a few steps before he slipped in the spill. He testified he was looking for an open checkout lane at the time of the fall. Defendant claims that the spill was small (testimony indicates about 12 inches in diameter) and that plaintiff could have walked around it. However, the same store employee who testified as to the size of the spill testified that it was very close to the shelf of the aisle in question and was, in fact, seeping under the shelf. This evidence shows that a small spill located on the side of an aisle a few steps away from the corner plaintiff had rounded may have been difficult to observe. Also, although defendant’s employees testified the spilled liquid was vinegar and that you could smell it, plaintiff testified that he did not, in fact, smell vinegar and did not know what type of liquid he had fallen in. Under these facts, defendant has not proved plaintiff was contributorily negligent in failing to notice and avoid the spill.

For the above reasons we reverse the court of appeal finding that defendant was not negligent. We conclude that defendant was negligent, that its negligence caused plaintiff to fall, and that plaintiff was not contributorily negligent. We remand to the court of appeal for a determination of any damages due plaintiff for injuries he may have sustained as a result of this accident.

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with the courts below that defendant acted reasonably under the circumstances. Accordingly, I respectfully dissent.

      . We recognize that the trespasser-licensee-invitee classifications have been previously disapproved by this Court. The cited statement of duty is otherwise accurate with regard to the particular plaintiff and defendant-property owner in the instant case. See Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La. 1976).


text:
    STATE of Louisiana v. Lee Ray SINEGAL, Jr.
    No. 80-K(A)-1422.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. Gregory Ar-nette, Jr., Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Helen Roberts, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
   WATSON, Justice.

Defendant, Lee Ray Sinegal, Jr., was convicted of first degree murder in violation of LSA-R.S. 14:30 and sentenced to life imprisonment. • Defendant has appealed the conviction and sentence.

Patrick Keith Jackson died from four gun shot wounds he received at the Blue Note Lounge in Jennings, Louisiana, on February 3, 1979. Sinegal told Connie Lynn Clark and Terry Achane beforehand that he intended to shoot Jackson. Achane then witnessed the crime. Sinegal denied the murder on the witness stand, but had previously admitted the shooting to three witnesses. Evidence was presented that Sinegal, age seventeen at the time of the offense, had been drinking.

After Sinegal had been sentenced, his counsel discovered that the jury had examined an obsolete law book found in the jury room during its deliberations. A motion for new trial was denied on the ground that LSA-R.S. 15.-470 prohibits jurors from impeaching their verdict. The trial court held that the law book did not constitute an unauthorized communication or overt act, and it was unnecessary, therefore, to have an inquiry into the question of prejudice, relying on State v. Marchand, 362 So.2d 1090 (La.1978). After a defense proffer, the trial court stated erroneously that the present law is identical to that in the law book read by the jury and the exposure did not prejudice defendant.

Apparently concerned about intoxication as a defense, the jury requested a special charge on the subject after commencing deliberations. Following a recess, they were correctly charged that an accused cannot be guilty of first degree murder if he is too drunk to have the requisite specific intent.

In the interim between the request and the special charge, one of the jurors read to the others from a 1916 edition of Ruling Case Law a superficially similar statement with one significant difference. The law book version added a qualification for a situation where the intent was formed before the intoxication. State v. Lentz, 306 So.2d 683 (La.1975) stated that this caveat added to a charge on intoxication would be “.. . a reversible misstatement of the law.” 306 So.2d 685. Thus, the trial court erred in not distinguishing between its correct charge and the erroneous statement found by the jury on its own. In consequence, the court was unable to evaluate the prejudice which may have resulted from the jury’s research.

The issue is whether the trial court should have granted a new trial after the jury was exposed to the incorrect statement of law from the 1916 book.

The jury’s duty is to accept and apply the law given by the court. LSA-C.Cr.P. art. 802. However, LSA-R.S. 15:470 prevents a defendant from going behind a jury’s verdict and taking evidence about the jury’s deliberations. In the ordinary situation, a defendant is foreclosed from inquiry into the basis for a jury’s verdict. State v. Abney, 347 So.2d 498 (La.1977).

An exception to this rule exists when there is an unauthorized communication or overt act by a third person which creates an extraneous influence on the jury. State v. Kifer, 186 La. 674, 173 So. 169 (1937); State v. Marchand, 362 So.2d 1090 (La.1978); Stimack v. Texas, 548 F.2d 588 (5 Cir. 1977). Further, when the statutory prohibition infringes on a defendant’s constitutional right to a fair trial, jurors are competent to testify about juror misconduct. Durr v. Cook, 589 F.2d 891 (5 Cir. 1979), reversing State v. Durr, 343 So.2d 1004 (La.1977). A law book which is read by the jury is an extraneous intrusion on the jury’s verdict. The written word of a legal volume is more of an intrusion than a verbal communication because of its imprimatur of authority.

Extraneous influences invalidate the jury’s verdict unless it can be shown that their effect was harmless. Mattox v. United States, 146 U.S. 140,13 S.Ct. 50, 36 L.Ed. 917 (1892); State v. Carter, 363 So.2d 893 (La.1978); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending ... is ... deemed presumptively prejudicial, ... ”. Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425 at 426, 98 L.Ed. 654 (1954). Also see State v. Wisham, 384 So.2d 385 (La. 1980).

It is essential that all facts considered by the jury are produced in the courtroom with full protection of defendant’s rights to confrontation and due process. United States v. Howard, 506 F.2d 865 (5 Cir. 1975); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); People v. Holmes, 69 Ill.2d 507, 14 Ill.Dec. 460, 372 N.E.2d 656 (1978); United States ex rel. Owen v. McMann, 435 F.2d 813 (2 Cir. 1970). Similarly, the law applied by the jury must come only from the court as law-giver or else defendant does not receive a fair trial. A reference to such an outside source as a dictionary is not prejudicial per se and often constitutes harmless misconduct. State v. Suschank, 595 S.W.2d 295 (Mo.1979); State v. Amorin, 574 P.2d 895 (Hawaii 1978); United States v. Gunter, 546 F.2d 861 (10 Cir. 1976); State v. Holt, 79 S.D. 50, 107 N.W.2d 732 (1961). However, a dictionary cannot be equated with a law book, a dictionary being designed for general consumption and law books for those with special training. A jury’s reference to a law book is reversible error when there is a reasonable possibility of prejudice.

If there is a reasonable possibility that extraneous information considered by the jury affected its verdict, a new trial is mandated. United States v. Winkle, 587 F.2d 705 (5 Cir. 1979); Farese v. United States, 428 F.2d 178 (5 Cir. 1970). It is difficult to rebut the likelihood of prejudice. State v. Wisham, supra. “... [T]he actual impact upon the jury of such evidence cannot be accurately measured or ascertained .... Consequently, it is a useless exercise even to ask jurors whether such evidence in fact affected their verdict.” United States v. Vasquez, 597 F.2d 192 at 193 (9 Cir. 1979). When, as in State v. Carter, supra, the jury’s legal research reveals nothing relating to the case at hand, the possibility of prejudice is slight. Here, however, the jury managed to find a Louisiana annotation which was exactly in point and sufficiently similar to the court’s instruction to cause confusion. It was unfortunately not similar enough. “Had their [the jury’s] information been complete and accurate, there might have been no prejudice, but, in usurping the court’s authority to construe the law, they ... obtained an erroneous conception ... and it cannot fairly be said that they likely were not somewhat influenced thereby.” State v. Kirk, 168 Iowa 244, 150 N.W. 91 at 96 (1914). The law book version had an error which would have required reversal if given by the court. State v. Lentz, supra; State v. Dardar, 353 So.2d 713 (La.1977). Certainly, no lesser standard can be applied to the law ferreted out by the jury than would be applied to that given by the court. There is more than the possibility of prejudice, and a new trial is necessary.

For the foregoing reasons, defendant’s conviction and sentence are vacated, and the matter is remanded for a new trial.

REVERSED AND REMANDED.

       Judges Cecil C. Cutrer, Jimmy M. Stoker, and Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . LSA-R.S. 15:470 provides:
      “No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”

      . “In order to convict the Defendant of the offense charged you must find beyond a reasonable doubt that he had a specific intent to kill or to inflict great bodily harm. Thus, if you find that the Defendant was in such an intoxicated condition that he did not have the specific intent to kill or to inflict great bodily harm, you must find the Defendant not guilty....” (Tr. 344).

      . “. .. unless it further appeared that he first resolved to kill the decedent and afterward drank to extreme intoxication and then carried out his former intention.il * * * “11. State v. Kraemer, 49 La.Ann. 766, 22 So. 254, 62 A.S.R. 664.” 1916 Edition of Volume 13 of Ruling Case Law at page 719. Defense Proffer # 1.

      . The jury, examined enmasse, also said they thought the instruction given was the same as that in the book.

      . The other assignments of error lack merit and will not be considered.

      . Where a jury examines law books during their deliberations, a defendant cannot receive a fair trial based upon the court’s instructions as he is entitled to do. Noll v. Lee, 34 Cal.Rptr. 223, 221 Cal.App.2d 81 (1963). There is “... no rule of law that would permit trial jurors to procure statutes or other law books and base their judgment upon such provisions as they might discover, rather than upon the instruction of the court.” Harris v. State, 24 Neb. 803, 40 N.W. 317 at 319 (1888). As early as 1914, the Supreme Court of the State of Washington stated that: “All the cases we have been able to find hold it to be prejudicial error or misconduct requiring a new trial for a jury to consult law books while deliberating on their verdict.” Bouton-Perkins Lumber Co. v. Huston, 81 Wash. 678, 143 P. 146 at 147, (1914). When a law book in the jury room is open to a pertinent section, there is prejudicial error. Demaray v. Ridi, 249 N.W.2d 219 (N.D. 1976).

      , In Paz v. United States, 462 F.2d 740 (5 Cir. 1972) an evidentiary hearing was ordered when books concerning drug traffic were present in the jury room and defendants were on trial for narcotics violations. On remand the convictions were affirmed because there was no reasonable possibility that the verdict was affected. Rodriguez Y Paz v. United States, 473 F.2d 662 (5 Cir. 1973).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Harvey FAURIA, Alvin Blouin and Bryan Blouin.
    No. 80-K-1438.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon Cannizzaro, Louise S. Korns, Asst. Dist. Attys., for plaintiff-relator.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendants-respondents.
   DENNIS, Justice.

We granted the state’s application for a writ of certiorari to review the trial judge’s suppression of evidence obtained through warrantless arrests and seizures.

On April 5, 1980, New Orleans Police Officer Richard Dugas, while in the vicinity of Downman and Morrison Roads, observed the three defendants near a spool of cable lying on the ground. The officer observed that the men had a cable cutter and were transferring cut pieces of cable into the rear of a pickup truck. Recalling a complaint of a theft of copper cable made earlier by the Harbor Police, Officer Dugas approached the three men and held them until the Harbor Police, whom he had notified, arrived on the scene.

Dugas’ report was relayed by radio to Harbor Policeman Rudolph Schultz who came to his assistance. We infer from the record that Schultz responded quickly; he was dispatched by radio and apparently proceeded directly to the location. When he arrived Schultz observed two pickup trucks, the spool of wire in the street, and pieces of cut wire in the back of one of the pickup trucks. Officer Dugas informed Schultz that he had observed the defendants cutting the wire. Schultz testified that he asked the three men what they were doing with the cable, and that one of the defendants stated that “he worked— that he chased somebody down and he picked the wire up.” Schultz noticed that the wire and the spool were similar to the type of wire and spool that had been stolen from the wharves three days to a week before this incident.

Following these events, the three defendants were placed under arrest; the spool of wire, the cable cutter, and the loose wire were seized. Defendants were then charged with theft and receiving stolen goods valued at $4,000. Defendants moved to suppress the evidence and the trial court granted their motion after a hearing.

If a defendant produces evidence that he was arrested or subjected to a search without a warrant, the burden shifts to the prosecution to justify the warrantless arrest or search. See State v. Franklin, 353 So.2d 1315 (La.1978). In the present case the prosecution elicited evidence that the arrests and seizures were without warrants. Accordingly, the state must show that the arrests were based on probable cause and that the evidence seized was justified under one of the recognized circumstances in which a search warrant is not required.

The initial detention of the defendants by Officer Dugas was authorized by Article 215.1 of the Code of Criminal Procedure. Section A of the article provides that “[a] law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.” Given the knowledge that Officer Dugas had concerning the thefts of copper cable from the wharves, when he observed the defendants cutting the cable and placing it in one of the pickup trucks parked nearby, he reasonably suspected that criminal activity might be afoot. Thus, an investigatory stop was justified. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Hunter, 375 So.2d 99,101 (La.1979); 3 LaFave, Search and Seizure, § 9.3 at 69-70.

Although the Supreme Court has not clearly laid the ground rules for an investigatory stop, it is clear that the stop and inquiry must be “reasonably related in scope to the justification- for their initiation,” Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. at 1868,20 L.Ed.2d at 889, and “substantially less intrusive than arrests.” Dunaway v. New York, 442 U.S. 200 at 210, 99 S.Ct. 2248 at 2255, 60 L.Ed.2d 824. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143 at 146, 92 S.Ct. 1921 at 1923, 32 L.Ed.2d 612.

This Court has said that it is the circumstances of each case which determine the right to stop, the right to frisk and the nature of the temporary detention. State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). Inherent in the officer’s right to stop a suspect and demand his name, address, and an explanation of his actions is the right to detain him temporarily to verify the information given or to obtain information independently of his cooperation. White v. Morris, 345 So.2d 461 (La.1977).

The detention in the present case did not exceed the bounds of a reasonable investigatory stop. Essentially, the detaining officer effected a brief stop of suspicious individuals to maintain the status quo momentarily while obtaining more information about the copper wire they were removing and cutting into portable lengths. The suspects were not transported from the scene, and the police appear to have diligently pursued a means of investigation likely to resolve the matter expeditiously. See 3 La-Fave, § 9.2 at 35-40. Under the circumstances, the detention was reasonable as to cause, method and duration.

After Harbor Policeman Schultz had arrived on the scene, had ascertained that the copper cable was of the type taken from the wharves, and had received an unsatisfactory response to his interrogation, the reasonable suspicion which had justified the initial detention ripened into probable cause. The facts and circumstances within Schultz’s knowledge were sufficient to justify a man of average caution in the belief that the defendants had committed an offense. See State v. Morvant, 384 So.2d 765 (La.1980); State v. Zielman, 384 So.2d 359 (La.1980). Considering the circumstances and the unlikely story told by the defendants, it was more probable than not that the defendants’ activity consisted of criminal behavior. See State v. Thomas, 349 So.2d 270, 272 (La.1977).

Having determined that probable cause to arrest existed, we conclude that the seizure of the evidence was lawful as having occurred incidental to the arrests. When a person is lawfully arrested, the police have a right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused’s immediate control and to an extent depending on the circumstances of the case, to the place where he is arrested. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Since the evidence seized in the present case consisted of fruits of or implements used to commit the crime, and consisted of things under the accuseds’ immediate control, the officers were entitled to seize these items of evidence as an incident to the arrest of the defendants.

Accordingly, the judgment of the trial court granting the defendants’ motion to suppress is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.


text:
    W. Frank EMERSON v. EMPIRE FIRE & MARINE INSURANCE COMPANY et al.
    No. 80-C-1558.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Andrew Jack Bennett, Bennett & McLaughlin, Baton Rouge, for plaintiff-applicant.
    Stephen H. Vogt, H. Evans Scobee, Dur-rett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for defendant-respondent.
   BLANCHE, Justice.

On April 6, 1977, W. Frank Emerson was involved in a fiery traffic accident. Damaged, among other things, were two notebooks and a portfolio containing raw data and notes compiled through experimental testing. The defendants were held liable for damages. Emerson was awarded $2,500 for the loss of the notebooks and portfolio. He appealed that determination to the First Circuit Court of Appeal, 387 So.2d 1238, which affirmed the award. We granted certiorari.

The sole issue presented by this case is the amount of damages due Emerson for the loss of the research data and notes.

Frank Emerson is a retired Army officer and a part time real estate salesman. In 1973, he became interested in the newly emerging field of biofeedback, particularly the subject of low frequency brain impulses called alpha waves. Working with his brother, Robert Emerson, a retired theoretical scientist, plaintiff began biofeedback research by conducting tests and experiments at his brother's well-equipped home laboratory.

The experiments were conducted on volunteer subjects with the aid of an electroencephalogram (EEG) machine, which plaintiff had been trained to operate by his brother. With this machine, plaintiff could get a physical representation of the brain activity of a person attached to the machine. By noting the wave pattern and the subject’s personal history and characteristics (age, sex, occupation), the conditions of the test (whether the lights were on or off, or whether the person was sitting or standing, for example), the specific stimuli given in the specific test and the discipline of the person (Yoga, Zen Buddhism, Mind Control, for example), if any, he hoped to learn what effect certain factors would have on the production of alpha waves. With this information, he could test the validity of certain rituals and beliefs held by certain meditative disciplines as well as formulate his own hypotheses on the achievement of a state of relaxation. Plaintiff and his brother testified that plaintiff was well read in the pertinent literature and plaintiff testified that, as far as he knew, the objective evidence he was seeking was not available at the time.

By the time of the accident, plaintiff had logged in the destroyed notebooks the experimental conditions and brain wave response of participants in 1,763 individual tests. From these tests, he drew out 200 and wrote the case summary notes which were also destroyed. Because of this volume of testing done by plaintiff over the 4 year period, it was his intention to have computer analysis run on the data to facilitate the isolation of the significant variables that affect alpha wave production. Plaintiff testified that he had attempted to run such analysis by hand, but that it was too laborious. At the time of the accident, however, no computer analysis had been initiated.

Both lower courts correctly noted that the problem in assessing the damages due for the destruction of the notebooks is plaintiff’s concession that he had no intention of reaping any material gain from his research. Rather, he hoped to satisfy his own intellectual curiosity and to share his information with others interested in the field. He was, in effect, a hobbyist interested in the pursuit of knowledge through science.

While it is readily conceded by all parties that the objective in assessing damages caused by tortious conduct is to place the plaintiff in the position he would have occupied had the injury complained of not been inflicted upon him, C.C. art. 2315, they differ as to the amount needed to satisfy that objective. Plaintiff contends that the sum necessary to place him in the status quo ante is approximately $77,000, the amount estimated by an expert to be necessary to have a paid research company reproduce 1763 EEG tests and 200 case histories using paid technicians and “volunteers”. The defendants maintain that the intrinsic value of the data to plaintiff is controlling and not the cost of a mechanical production of similar data. They also maintain that the award allowed by the lower courts adequately reflected the value of the data to plaintiff.

It is axiomatic that when there is a legal right to recovery of damages but the amount cannot be exactly estimated, the courts have reasonable discretion to assess them based upon all the facts and circumstances of the particular case. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Coleman v. Victor, 326 So.2d 344 (La.1976). When property damaged or destroyed has had an ascertainable market value, the courts have considered several factors to varying degrees. The Court in Ewell v. Petro Processors of La., Inc., 364 So.2d 604 (1st Cir. 1979), writ den., 366 So.2d 575 (La.1979), cited by the appellate court, catalogued a few such factors including the extent of the damage; the use to which the property may be put; the extent of economic loss in terms of (market) value and income; and the cost and practicability of restoration. See also Coleman v. Victor, supra, and cases cited therein. This analysis bogs down, to some extent, when the property destroyed, as is conceded to be the case here, has no market value.

It does not follow from the lack of an ascertainable market value for destroyed property, however, that an innocent plaintiff must be turned out of court with only nominal damages, or none at all. To so hold would be contrary to the mandate of C.C. art. 2315 that one must repair damages occasioned by his fault. We note by way of example that quantification for pain and suffering is made every day in a court somewhere in this state and dollar amounts are assigned therefor even in cases requiring as much subjective judgment as that required in the case at bar.

The general rule of damages cited by courts for valuation of tortiously damaged property without market value is the actual or intrinsic value of the property to the owner. While this is certainly a realistic and praiseworthy rule, it is not of much practical use for ascertaining a dollar amount. However, certain factors could be relevant to determine whether the rule is met by a particular award, including, but not limited to, the true nature of the loss; the costs of producing or acquiring the property in terms of reasonably spent time, effort and money; the present and potential future use of the item had it not been destroyed; and the cost and practicability of restoration.

Our review of the record indicates that Frank Emerson lost much more than a 6-inch stack of paper contained in a portfolio and two notebooks. In effect, he lost the practical benefit of hobby material which took him over 4 years to develop. He lost the intellectual gratification that he received from the data as a part of the ongoing research project. He also lost the ability to draw from his research specific test results, which the record indicates he did when lecturing and participating in discussion groups. The data also had the potential for giving plaintiff future intellectual gratification, since the factor analysis plaintiff contemplated would have validated or invalidated his hypotheses and given plaintiff more information upon which he could have formulated new hypotheses. In order to regain the enjoyment of the hobby of which he is now deprived, plaintiff will have to assemble the information anew.

The record reflects that the plaintiff quantified no cash outlay in producing the data in question. His brother owned the EEG machine which was used for conducting the tests and the participants were volunteers. But using plaintiff’s one-half hour approximation of the time spent actually conducting one test or writing one case summary, we find that the plaintiff proved that he expended about 1000 hours of time and effort compiling the destroyed information. We also noted that plaintiff expended some effort in procuring volunteers by attending biofeedback and parapsychology meetings held weekly at his brother’s home between 1973 and 1976, but he offered no breakdown as to how much of that time was spent in actual recruitment as opposed to the acquisition of knowledge.

The testimony of plaintiff’s expert is that the data could be reproduced by simply testing another 1,763 subjects. This is corroborated by the testimony of Robert Emerson, plaintiff’s brother, who testified that the plaintiff continued after the accident to conduct research at the laboratory. He also testified that volunteers were being used in that research. Thus, the data can be practicably reproduced although presumably, different subjects would be used. The plaintiff proved that the data could be reproduced with the expenditure of 1000 hours of his time, or with the expenditure of $77,000, the amount estimated to be necessary for a paid research corporation to hire the required personnel to conduct and participate in the research.

In reviewing quantum awards, an appellate court can disturb an award made by the trial court only where the record indicates that the trier of fact abused its discretion in making the award. Upon finding an abuse of discretion, the award can only be raised (lowered) to the lowest (highest) point which is reasonably within the discretion of the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977).

We find that the trial court abused its discretion in reaching the $2500 amount awarded by not considering factors relevant to a determination of the value of the notes to plaintiff. We disagree with plaintiff’s contention, however, that the cost of reproducing this research using a paid research corporation is the only guide which must be utilized to determine the compensation due him. Under the facts of this case, the intrinsic value of the research to plaintiff in terms of intellectual gratification, when viewed in light of the time and effort spent compiling the research and the ease of reproduction at no monetary cost, is far less than the amount necessary to reproduce the research using a compensated research company. We find that the minimum amount which should have been awarded plaintiff in light of these factors is $7,500.

AMENDED AND RENDERED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Since plaintiff’s research data and notes have no market value, I would allow no award for damages. Hence, I do not reach the issue of whether or not the trial judge abused his discretion in the award made. Accordingly, I respectfully dissent.

      . In general, market value is the price that would be agreed upon at a voluntary sale between a willing seller and willing purchaser under usual or ordinary circumstances. Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491 (1959); Princeville Canning Co. v. Hamilton, 159 So.2d 14 (La.App. 1st Cir. 1963); Henderson v. Dyer, 68 So.2d 623 (La.App. 1st Cir. 1953).

      . This was the test cited by the appellate court in its opinion. See also Bishop v. East Ohio Gas Co., 143 Ohio St. 541, 56 N.E.2d 164 (1944); MacGregor v. Watts, 254 App.Div. 904, 5 N.Y.S.2d 525 (App.Div.N.Y.1938); Nashville Ry. & Light Co. v. Harrison, 5 Tenn.App. 22 (Tenn.1927); Southern Express Co. v. Owens, 146 Ala. 412, 41 So. 752 (1906); Louisville & Nashville Ry. Co. v. Stewart, 78 Miss. 600, 29 So. 394 (1901).

      .C.C. art. 1934 provides for the payment of damages for breach of contract where the contract has for its object the gratification of some intellectual enjoyment.