author: PRICE, Judge.

text:
    Bobby HUNTER and Gail Hunter, Plaintiffs-Appellees, v. OFFICE OF HEALTH SERVICES AND ENVIRONMENTAL QUALITY OF the DEPT. OF HEALTH & HUMAN RESOURCES of the State of Louisiana, Third Party-Plaintiff-Appellant, and Frances Everett Brander, Individually and as Representative of those Certain Underwriters at Lloyds, London and Louisiana Dept. of Health, Maintenance and Ambulatory Patient Services, et al., Defendants-Appellants.
    No. 14170.
    Court of Appeal of Louisiana, Second Circuit.
    June 19, 1980.
    En Banc. Rehearing Denied July 24, 1980.

      Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., Shreveport, for defendants-appellants Frances Everett Brander, individually and as Representative of those certain underwriters at Lloyds, London and Louisiana Dept, of Health, Maintenance and Ambulatory Patient Services, et al.
    H. M. Westholz, Jr., New Orleans, Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for third party-plaintiff-appellant Office of Health Services and Environmental Quality of the Dept, of Health and Human Resources of the State of La.
    David A. Rothell, Mansfield, for plaintiffs-appellees Bobby Hunter, Yolanda Hunter and Christopher Hunter.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appel-lee Continental Cas. Co.
    Mayer, Smith & Roberts by Charles L. Mayer, Shreveport, for defendant-appellee St. Paul Fire & Marine Ins. Co.
    Before PRICE, JASPER E. JONES and FRED W. JONES, JJ.
   PRICE, Judge.

This medical malpractice litigation arises out of the failure of a pathologist at the state laboratory in New Orleans to properly diagnose a malignant melanoma in the specimen of an excised mole submitted for analysis by a physician in DeSoto Parish in connection with his treatment of Mrs. Gail Hunter.

Mrs. Hunter and her husband, Bobby Hunter, filed this suit in DeSoto Parish against the Division of Health, Maintenance, and Ambulatory Patient Services of the State of Louisiana for damages resulting from the alleged negligence of the pathologist, Dr. William J. Nothacker, who was alleged to be an employee of the state agency. The other party defendants are: St. Paul Fire & Marine Insurance Company, the insurer of Dr. Nothacker; Certain Underwriters at Lloyds, the insurer of the state; and Continental Casualty Company, the alleged excess insurer of the state.

Gail Hunter died after the suit was filed and Bobby Hunter, individually and as tutor of their two minor children, was substituted as party plaintiff to continue the survival action. Additional claims for damages were made by these plaintiffs for the wrongful death of their wife and mother.

In preliminary proceedings the trial court overruled the state’s exception of venue. The court granted plaintiffs’ request for a jury trial as to their claims against the insurers, but held that the claims against the state should be decided by the trial judge. It was also agreed by the parties that certain questions of insurance coverage concerning Continental Casualty Company would be determined by the trial judge rather than submitted to the jury.

The jury found for plaintiffs and awarded damages in the amount of $432,000. The trial judge found the state was also liable in solido to plaintiffs for this amount.

The trial judge further found Continental Casualty did not have excess coverage which was applicable to this case and rejected plaintiffs’ demand as against this insurer and denied the state’s third party demand against this party.

The trial court therefore cast the state solidarily liable with St. Paul and Underwriters at Lloyds, with each of these insurers’ liability being limited to the policy coverage of $100,000. The state and Underwriters at Lloyds have appealed. St. Paul satisfied the judgment as against it and did not appeal. Plaintiffs have answered the appeal and request an increase in the award for damages.

The facts pertinent to an understanding of the issues are substantially as follows:

In 1971 Gail Hunter, who was then 29 years old, had a mole removed by Dr. Jacob Segura, a general practitioner in Mansfield. Dr. Segura sent the specimen to the state laboratory in New Orleans for a biopsy. He received a response some seven days later which diagnosed the specimen as “pigmented nevus, compound type,” indicating it was benign or not cancerous. No further treatment was therefore given in connection with the removal of the mole. Approximately three years later in April 1974, Mrs. Hunter discovered a large knot under her right armpit which was surgically removed by Dr. Jack Grindle, a surgeon in Mansfield. Pathological examination of the excised mass of lymph nodes resulted in a diagnosis of metastic malignant melanoma (cancer which has spread). In the search for the primary site of the cancer, the slide of the 1971 mole specimen sent to the state laboratory was recovered and reexamined. This resulted in the disclosure that an erroneous diagnosis had been made by the state pathologist in his biopsy of the mole and that the correct diagnosis at that time should have been melanoma.

After the April 1974 diagnosis of malignant melanoma, treatment was ineffective and Mrs. Hunter died in December of that year.

The numerous issues presented on this appeal as developed by appellants’ specifications of error and plaintiffs’ answer to the appeal are as follows:

(1) Have plaintiffs carried the burden of proof to show the erroneous diagnosis was causally related to Mrs. Hunter’s death?
(2) Is the award of damages excessive as contended by appellants or is it inadequate as contended by plaintiffs?
(3) Did the trial court err in admitting the deposition of plaintiffs’ expert witness, Dr. Cyril H. Wecht, in view of the protective order issued precluding the presence of appellants’ expert to assist in the examination of this witness at the taking of the deposition?
(4) Did the trial court err in refusing to give jury charges requested by appellants relating to plaintiffs’ burden of proof in a medical malpractice suit?
(5) Did the trial court err in overruling the exception to the venue by the state?
(6) Was the trial court in error in finding Continental Casualty Company did not have excess liability coverage which was applicable to this event?

We shall discuss these issues in the order as stated above.

1. THE ISSUE RELATING TO PLAINTIFF’S BURDEN OF PROOF

The burden of proof required by a plaintiff in a medical malpractice case is provided by La.R.S. 9:2794 which has retroactive application to cases pending prior to its enactment in 1975.

There is no question that plaintiffs have satisfied the requirements of paragraph A(l) and (2) as they clearly have shown the standard of care ordinarily exercised by pathologists in examining tissue samples in this state and that Dr. Nothacker did not exercise this degree of care in the diagnosis made by him in 1971.

The issue as posed by appellants’ assignment of error is whether plaintiffs have sustained the burden provided by subpara-graph (3) of the statute which requires proof “that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.” Appellants contend that under this section of the statute plaintiffs must prove by a preponderance of the evidence that the failure to diagnose the melanoma in 1971 resulted in the death of Mrs. Hunter. They contend the overall preponderance of medical testimony does not show with a degree of medical certainty that Mrs. Hunter would not have died even had she received a correct diagnosis and been given the prevailing medical treatment of that period.

Plaintiffs principally rely on the testimony by deposition of Dr. Cyril H. Wecht, a pathologist of Pittsburg, Pennsylvania, who was of the opinion that the misdiagnosis of the original skin lesion in 1971 was directly and causally related to Mrs. Hunter’s death. His opinion was based on the assertion that had a correct diagnosis been made, and following recognized standards of treatment at that period in time, she would have been immediately referred to a surgeon who would have performed a wide angle excision of the skin surrounding the mole site and most probably a lymph node dissection extending into the axillary or armpit area. Dr. Wecht concluded that had Mrs. Hunter been afforded the opportunity of such treatment her chances for survival would have been increased by 85 percent based on recognized medical statistics. Without the treatment he opined her chance of survival became almost zero.

Appellants offered the testimony of three physicians: Dr. Richard J. Reed, a pathologist and professor at the Tulane School of Medicine in New Orleans; Dr. James H. Eddy, Jr., a surgeon in Shreveport; and Dr. Jack Grindle, the surgeon who attended Mrs. Hunter in 1974. Dr. Reed and Dr. Eddy were of the opinion that a wide angle excision would not have been of any benefit to Mrs. Hunter as their examination of the slide of the 1971 specimen shows the margin of tissue surrounding the mole was free of cancer cells and there was no local reoccur-rence of the melanoma at the original mole site.

Whether Mrs. Hunter would have died when she did even though her cancer had been promptly diagnosed in 1971 and some or all of the known treatment administered to her is a question on which experts could understandably disagree in view of the apparent, yet incomplete, medical knowledge of this disease.

Prognosis for recovery is basically evaluated by statistical data relating to the recovery rate of those patients who have responded to known treatment after prompt diagnosis. This is well illustrated by the testimony of appellants’ witness, Dr. Grin-dle, on cross-examination:

Q. Dr. Grindle, when you were asked to predict whether Mrs. Hunter would be alive or not or whether a wide angled excision would have made any difference that is almost as difficult as predicting whether you are going to be alive next year, isn’t it?
A. That’s right.
Q. You just play the odds, is that correct?
A. That’s right.
Q. I believe you would concede however that wide angle excision would be necessary treatment in a case such as hers, is that correct?
A. If it were mine I would rather have it.
Q. Doctor, if you had lymph malignant melanoma and didn’t treat it, for whatever the reason, what chance would you have to survive?
A. Very, very faint, I mean the chances are practically nil. But as pointed out occasionally you will find a case, I think there is 8, 10, or 12 cases in literature, apparently spontaneous regression.
Q. That is an exception to the rule isn’t it?
A. Yes, sir.
Q. Out of all the people in the country that has had this maybe eight has had this happen to them?
A. Yes, sir.
Q. So essentially if you take a tumor out and you miss a cell, or for whatever reason the cells are left in the body, and there is no treatment whatsoever is administered to the patient they have very little chances for survival?
A. That’s correct.

To sustain their burden of proof under the circumstances as here presented, plaintiffs should only have to show by believable evidence, that the erroneous diagnosis caused Mrs. Hunter to fall from the category of persons who would statistically have been expected to survive to the category in which there was almost no chance of survival. This is all that could reasonably be expected of plaintiffs. To prove that she would not have died otherwise is an unreasonable burden.

Although there is a difference in the opinions of the medical experts presented, and appellants are favored with a greater number to support their position, the opinion of plaintiffs’ expert, Dr. Wecht, standing alone is sufficient to carry the burden of proof if it was found more credible by the trial court and jury and this finding was not manifestly erroneous. The record shows Dr. Wecht to be a well recognized and experienced pathologist whose opinion has been accepted many times in courts nationwide. We do not find any error on the part of the jury in giving his opinion greater weight in this instance. We therefore find that the jury and trial judge were not clearly wrong in finding that the erroneous diagnosis was a substantial factor in the cause of Mrs. Hunter’s death.

2. QUANTUM

Appellants contend the trial court’s award of $432,000, to be divided equally among Mr. Hunter and the two children, was excessive; whereas appellees request the award be increased to include approximately $154,000 for loss of Mrs. Hunter’s services to her family.

We will first address the issue of the excessiveness of the award. As a general guideline when considering whether a trial court’s award is inadequate or excessive, the Supreme Court in Cheatham v. City of New Orleans, 378 So.2d 369 (La.1980) mandates that:

The law on the issue of appellate review of damages is contained in La.Const. of 1974, art. V, § 10(B) and La.Civ.Code
“Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.” art. 1934(3). This Court has consistently

held that Article 1934(3) does not violate the constitutional provisions of La.Const. of 1974, art. V, § 10. Revon v. American Guaranty and Liability Insurance Company, 296 So.2d 257 (La.1974). In interpreting Article 1934(3) this Court held in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976):

“before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. . . Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. . . . It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” (citations omitted)

In the instant case we must decide if the evidence supports an award of $432,000 as being reasonably within the discretion provided the trial judge and jury. Unfortunately, the award given was made in globo leaving this court without benefit of an itemized list of the damages awarded plaintiffs. Nevertheless, we will attempt to estimate what award was given for each element of damages.

Plaintiffs requested a sum of $37,500 for decedent’s pain and suffering and we will assume this amount was awarded them. The evidence clearly shows Mrs. Hunter to have suffered a great deal of pain and discomfort during the period after diagnosis to the point of her demise. We therefore cannot say this award was unreasonable nor outside the court’s discretion.

With regard to plaintiffs’ loss of support, plaintiffs relied on the testimony of Dr. Seymour S. Goodman, professor of economics at Tulane University in New Orleans. Dr. Goodman’s calculations were based on the assumption Mrs. Hunter was earning a gross income of $9,831.41 annually. To obtain this figure, Dr. Goodman took an average of Mrs. Hunter’s annual base earnings from 1971 through 1974. After making several adjustments based on various governmental tables and statistical reports indicating her work life expectancy to be 27.4 years, inflation and promotional increases to total 5.51% per annum, employer contributions for pension fund and hospitalization benefits and a 17.4% deduction for her personal expenditures and discount rates of 6%%, the economist concluded a sum of $268,817.08 would compensate plaintiffs for the loss of support previously provided by Mrs. Hunter.

Appellants did not present a counter expert witness, but did cross-examine Dr. Goodman extensively. They complain that Dr. Goodman’s analysis was faulty on the basis he used gross income instead of net, and while considering inflational factors and wage increases, he made no allowances for income taxes.

Similar allegations were made in the Cheatham case, supra, where the trial court made an award of $279,000 for loss of support in a wrongful death action to the wife and child of a man who earned approximately $9,600 annually. The court of appeal reduced the award and the Supreme Court reinstated it stating:

While the economist’s calculations may not have taken into account the difference in Cheatham’s anticipated gross pay and his net pay, principally income tax and social security tax withholdings (a relatively small sum considering the fairly meager pay range) there were the offsetting considerations for the jury that the economist used a mere 3% inflation increase factor (and it has been as high as 13% of late), he did not take into account as part of the income the 5% commission Cheatham was earning in his job, and he used a 30% consumption factor (for a family of two) rather than 26% which his tables indicated was the appropriate percentage for a family of three.

In light of the language in Cheatham and in view of the facts of this case, we find an award somewhere in the range suggested by Dr. Goodman would not be an abuse of the discretion given the trier of facts.

Appellants attempt to limit an award to plaintiffs for loss of love and affection to a range of $35,000 to $90,000. Again we look to Cheatham where the Supreme Court upheld an award of $200,000 to the surviving spouse and $125,000 to the minor child for loss of a husband and father’s love and affection. In doing so the court reversed the court of appeal which had reduced the sums to $50,000 and $25,000 respectively.

We find the evidence portraying the family unity of the Hunters to be similar, if not more convincing than the evidence presented in the Cheatham case. Although the awards in Cheatham may have been high the court found them within the discretionary range and could not say the jury erred.

We are unable to state with any certainty what award was given plaintiffs for the loss of love and affection of decedent. However, any award close to that given in Cheatham for such loss would almost equal the total damages awarded in this case.

Next to be considered is whether this court should increase the award to include the value of Mrs. Hunter’s household services. Some evidence was presented showing the value of a wife’s household services based on published articles. However, the evidence failed to show plaintiffs had actually incurred any expenses of obtaining someone to render these services for the Hunter family. Therefore, we find no merit in appellees’ contention that the award should be increased.

We conclude the jury and trial court did not abuse their discretion by awarding plaintiffs a total sum of $432,000 in damages and therefore affirm the award.

3. ADMISSIBILITY OF DR. WECHT’S DEPOSITION

Appellants complain the trial judge improperly admitted into evidence the deposition of Dr. Wecht. Appellants based this complaint on the fact a protective order was given to appellees preventing any other witnesses from attending the deposition. Appellants contend C.C.P. Art. 1631 precludes a court from sequestering another expert witness. While it is customary in Louisiana to exempt experts from the rule of sequestration, the court has the authority to do so where the expert witness is expected to testify as to facts in addition to opinion. Hopkins v. Dept. of Highways, 350 So.2d 1271 (La.App. 3d Cir. 1977); McPherson v. Catahoula Parish Police Jury, 358 So.2d 685 (La.App. 3d Cir. 1978). Since the medical witnesses involved in this case examined the slide of the mole specimen and testified to the facts found therein, we believe the above cases are applicable. Furthermore, the deposition of Dr. Wecht took place eight months prior to the trial, which in our opinion, gave appellants more than ample opportunity to refute the evidence presented in Dr. Wecht’s deposition.

4. DENIAL OF REQUESTED JURY CHARGES

Appellants contend the trial court erred in failing to give four requested charges to the jury. The first concerns the definition of the burden of proof required of a plaintiff in a medical malpractice suit. The second relates to the degree of certainty in the evidence to show a causal relationship in the act of negligence alleged and the injury to Mrs. Hunter.

We find the trial judge properly instructed the jury in both of these areas of law and that he did not commit error in refusing to give the specific charges requested by appellants.

The third instruction complained of was a request to define damages for loss of wages to restrict any consideration to net rather than gross wages. The fourth complaint is the failure of the court to instruct the jury that the failure of plaintiff to call a doctor who administered treatment as a witness creates the presumption his testimony would have been unfavorable.

The latter two requested instructions were not covered by the trial court’s charge. However, our independent review of the evidence leads us to the conclusion that the evidence supports the verdict reached by the jury and the failure to give these two special instructions does not justify a remand and retrial of the case. See Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3d Cir. 1975); Bartholomew v. Travelers Insurance Co., 290 So.2d 390 (La.App. 4th Cir. 1974); Bryant v. St. Paul Fire and Marine Ins. Co., 272 So.2d 448 (La.App. 2d Cir. 1973).

5. VENUE

Appellants specify as error the trial judge overruling their exception of improper venue. We find C.C.P. Art. 74 to be applicable in this case. This article provides for an action on offense or quasi offense to be brought in “the parish where the wrongful conduct occurred,” or in “the parish where the damages were sustained.” The record clearly shows the damages were sustained in DeSoto Parish, domicile of Mrs. Hunter, and therefore the trial judge correctly disposed of the issue.

6. EXCESS COVERAGE OF CONTINENTAL CASUALTY COMPANY

The state has assigned as error the holding of the trial judge that Continental Casualty did not afford excess liability coverage for the claims of plaintiffs in this case.

The state’s primary contention is that the excess policies issued by Continental to the state during this time frame contain ambiguous language which should be construed against the insurer. The two policies of Continental in question were issued to cover the periods of October 27, 1970 to October 27,1971, and from October 27,1971 to October 27, 1972. After October 1972 another insurer, Market Insurance Company, carried the excess liability for medical malpractice for the state. The coverage in each instance was excess to primary liability coverage furnished by Lloyds in the amount of $100,000. Each of the Lloyds’ certificates of insurance is identical and provides for malpractice coverage in the following language:

NOW WE THE UNDERWRITERS hereby agree, ... to pay on behalf of the Assured all sums which the Assured shall by law be held liable to pay for damages arising out of bodily injury or mental injury to or death of any patient caused by or alleged to have been caused by error, omission, or negligence in professional services rendered or which should have been rendered . . .,
PROVIDED ALWAYS THAT
(a) such Malpractice results in a claim being made against the Assured during the period of insurance as stated in the Schedule .

As the negligence of the state’s pathologist happened in 1971, the state in answer to plaintiffs’ interrogatories declared it had primary liability coverage with Lloyds under certificate No. ISU-3441, which covered the period of October 27, 1970 to October 27, 1971. The state also answered that it had excess coverage with Continental whose policy was issued for this time frame and specified it was excess to this Lloyds’ certificate. Pursuant to these answers the plaintiffs made Lloyds and Continental defendants by supplemental pleadings. Continental did not at this time deny coverage but proceeded to defend the action along with the defense being made by Lloyds. Some five years later, just nine days before the case was fixed for trial, Continental notified the state through its then counsel of record, that it had just discovered in pre-trial preparation that neither of its policies of excess coverage previously issued to the state were applicable to this case. The basis on which coverage was denied was that the underlying insurance provided by Lloyds were “claims made policies,” and as no claim was made by plaintiffs during the period between October 1970 and October 1972 when Continental was the designated excess insurer, there was no coverage under its policies.

The state contends that because a “claims made” provision is unusual and is confusing to the insured, and in view of the ambiguous language of the Continental policies, it should be determined that Continental was the excess insurer. The principal basis for this argument is that the declarations page of the policy indicates to the insured it has coverage for the policy period October 27, 1970 to October 27, 1971, for “injury or destruction taking place during this policy period. . . . ” The state contends this leads the policyholder to believe it has coverage for any negligent act of an employee happening between October 1970 and October 1971.

The state also contends the Lloyds’ policies should not be considered in interpreting Continental’s policies as they were not made a part of the policies as required by La.R.S. 22:628 and under the decision in Spain v. Travelers Insurance Company, 332 So.2d 827 (La.1976).

Spain forbids the incorporation of another policy by reference unless the policy referred to is physically attached or made a part of the policy. As it appears the Lloyds’ certificates were attached to the Continental policies at the time of delivery, this is a sufficient compliance with R.S. 22:628 and Spain.

From our examination of the subject policies we do not find the ambiguity as contended by the state on the critical question as to which primary policy the Continental policies provide excess coverage for.

The excess policy of Continental in each instance provides clearly on the first page or cover sheet that it is excess to a specific policy of underlying insurance. It also provides under Part 1 that “the provisions of the immediate underlying policy are incorporated as a part of this policy. . . .’’

The language of Continental policies makes it plain that the policy covers nothing more than that afforded by the immediate underlying policy which is specifically described in the Schedule of Underlying Insurance contained on the face of the policy. The attached copy of the Lloyds certificate declares in bold type in the subheading of the section providing for malpractice insurance that it is a “claims made policy.” The policy language also clearly restricts its applicability to a claim being made during the period of the policy. This may well be an unusual provision but this does not render it ambiguous or subject to more than one interpretation.

The state also contends that Continental, by acting as though it had coverage up until a few days before trial, is now estopped from denying coverage. The state entered this litigation under an erroneous state of facts as to its primary and excess coverage and the actions of Continental in indicating they afforded coverage in answer to pleadings or interrogatories and in engaging in defense of the actions for such a long period of time did further mislead the state in its confusion as to a state of facts which did not exist.

However, the general rule is that estoppel is not favored in our law. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). The application of the doctrine of estoppel has not been allowed in the field of insurance law in this state to extend or enlarge coverage beyond that set forth in the policy. Ledoux v. Old Republic Life Ins. Co., 233 So.2d 731 (La.App. 3d Cir. 1970); Smith v. Republic National Life Ins. Co., 335 So.2d 739 (La.App. 2d Cir. 1976). To grant the plea of estoppel as requested by the state would in effect be an extension of coverage of the Continental policies. In view of these recognized principles equitable estop-pel is not proper under the circumstances presented.

We find no error in the trial judge’s finding that the excess coverage was afforded by the policy issued by Market Insurance Company and not the policies of Continental Insurance Company on the claims presented in this case.

For the foregoing reasons, the judgment appealed is affirmed at appellants’ costs.

       La.Const. of 1974, art. V, § 10(B) provides the scope of review for appellate courts as follows:

       Louisiana Civil Code Article 1934(3) provides in pertinent part:
      “Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. .
      In the assessment of the damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none . . . .” (Emphasis added)

       The above footnotes numbered 8 and 9 are part of the quoted material.

      . After the state was denied a continuance of the trial date in view of this late development on the issue of insurance coverage, it filed a third party demand against Continental for a declaratory judgment as to Continental’s coverage and pled the doctrine of equitable estoppel.

      . There are two types of policies recognized in Louisiana. The most common is the policy written on an “occurrence basis”—that is the injury or property damage must occur during the policy period. The other is the “claims made basis”—that is to say the time when the damage happened is not controlling, but the time a claim is made or the damage is discovered is the critical factor for determination of coverage within the policy period. See Oceanonics, Inc. v. Petroleum Distributing Company, 280 So.2d 874 (La.App. 3d Cir. 1973) and Dement v. International Paper Co., 363 So.2d 952 (La.App. 3d Cir. 1978).


source: Caselaw Access Project

author: FRED W. JONES, Judge.

license: Public Domain

text:
    Adolphus B. SLATON, Plaintiff-Appellee, v. Charles E. BEACH, William Andrew Beach, Defendants-Appellants.
    No. 14338.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 1980.
    Bethard & Davis by Walter E. Dorroh, Jr., Coushatta, for defendant-appellant, William Andrew Beach.
    Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Corkern, Jr., Natchi-toches, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   ON MOTION TO DISMISS APPEAL

FRED W. JONES, Judge.

Adolphus B. Slaton filed suit against William A. Beach to have judicially established the boundary line between adjoining tracts of land allegedly owned by the parties. Defendant interposed pleas of ten and thirty years acquisitive prescription, which were tried and overruled.

Defendant appealed from this judgment of the lower court overruling his peremptory exception. In response, plaintiff-appel-lee has moved to dismiss the appeal on the ground that the judgment in question is interlocutory and nonappealable.

Article 2083 of the La.Code of Civil Procedure provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.” (emphasis added)

Appellant concedes that the judgment from which he appeals is interlocutory, but argues that it will cause him irreparable harm in the form of unnecessary court expenses and survey costs.

This court was confronted by a similar argument in Shaw v. Garrett, 295 So.2d 897 (La.App. 2d Cir. 1974) which involved a motion to dismiss an appeal from the trial court’s action in referring an exception of acquisitive prescription in a boundary action to the merits. The motion to dismiss was granted, with this comment:

“The inconvenience and expense in having to answer and defend a lawsuit as a. result of the trial court’s refusal to sustain exceptions has been held not to constitute irreparable injury sufficient to justify an appeal from an interlocutory judgment.”

Also see Cambre v. Gerald, 219 So.2d 572 (La.App. 4th Cir. 1969).

Finding that the judgment appealed from is interlocutory and that appellant has failed to show irreparable injury, this appeal is dismissed and the case is remanded to the district court for further proceedings, with costs of the appeal assessed to appellant.


author: CUTRER, Judge.

text:
    Lionel THERIOT et al., Plaintiffs-Respondents, v. MERMENTAU RESOURCES, INC., Defendant-Applicant.
    No. 7737.
    Court of Appeal of Louisiana, Third Circuit.
    July 3, 1980.
    Hunt, Godwin, Painter & Roddy, Fred R. Godwin, Lake Charles, for defendant-applicant.
    Baggett, McCall, Singleton, Ranier & Iey-oub, Robert C. McCall, Lake Charles, for plaintiff s-respondents.
    Before FORET, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This is a suit by Lionel Theriot, Emma T. Ogburn, and Teddy Broussard seeking to permanently enjoin the defendant, Mer-mentau Resources, Inc. (Mermentau) from maintaining and operating a disposal well used to inject chemical waste products into the subsurface of a certain tract of land in Cameron Parish, Louisiana. Defendant filed a declinatory exception of improper venue. This exception was overruled. We denied defendant’s application for writs of certiorari, prohibition and mandamus. The Supreme Court, however, granted the writs and remanded to this court for a ruling on the merits of the application.

The plaintiffs alleged that:

“4.
“The defendant sought and has or is obtaining permits to operate a chemical waste disposal well and to inject into the ground hazardous chemicals, poisons and pollutants, which in due course will or may flow under the lands of the petitioners.
“5.
“Petitioners allege that they have not consented to said disposal or flow of said wastes under their lands and the effects of the operation of the disposal well would violate Civil Code Article 667, constitute a trespass and create a nuisance.
“6.
“Petitioners allege that due to an inability to accurately predict where these chemicals will migrate and move through sands and faults in the geological makeup of the area, that any injection presents an unwarranted hazard to them and one whose progress can not be later reversed and would cause irreparable injury entitling petitioners to a permanent injunction. ”

Mermentau filed a declinatory exception on the ground of improper venue. This exception was based on the fact that the operation of the disposal well had been authorized by order of the Commissioner of Conservation of the State of Louisiana. Mermentau contended that in any legal proceeding affecting an order of the commissioner, suit must be in the Parish of East Baton Rouge, the place of the commissioner’s principal office, under the provisions of LSA-R.S. 30:1 D and 30:12.

The record reflects that the State of Louisiana, through the Office of Conservation, made findings and issued an order permitting the drilling, fitting and operation of the disposal well in question.

We note that the Commissioner of Conservation, R. T. Sutton, approved the drilling and installation of the disposal well to be drilled to approximately 8,000 feet. At that depth the well is to be fitted with casing (pipe) which is installed according to plans which protect upper fresh water sands against contamination. The pipe in the well is to be perforated at approximately 8,000 feet and all waste products pumped into the well will be disbursed into a salt water sand at the 8,000 foot level. The type of waste products to be disposed of are designated as spent sour caustic, salt of benzoic acid and water. If any other waste products are to be inserted, the prior approval of the commissioner must be obtained. A chemist is required to be available at all times.

The commissioner finds that the proposal of Mermentau Resources, Inc. are “reasonable and environmentally sound.” The company is required to post a surety bond of $50,000.00 and must carry a general liability insurance policy of at least $1,000,000.00. The order became effective January 18, 1979.

The trial judge denied the exception finding that the proper venue was in Cameron Parish since the suit involved the liabilities and right of landowners under LSA-C.C. art. 667 and that the order of the commissioner was merely an incident thereto.

Mermentau, relator, argues that East Baton Rouge Parish is the proper venue under LSA-R.S. 30:1, et seq. Plaintiffs-respondents on the other hand contend that, since the action is a trespass action and is brought pursuant to LSA-C.C. art. 667, Cameron Parish is the proper venue. Also, plaintiffs argue that, under the Louisiana Environmental Affairs Act, Chapter 11 of the Title 30, plaintiffs may properly bring suit in Cameron Parish.

The statutes regulating disposal wells for subsurface injection of waste products are set out in LSA-R.S. 30:1, et seq.

The pertinent provisions are as follows:

LSA-R.S. 30:1 D provides:

“D. The disposal of any waste product into the subsurface bv means of a disposal well and the regulation of all surface and storage waste facilities incidental to oil and gas exploration and production, shall be within the jurisdiction of the department." (Emphasis added.)

LSA-R.S. 30:4 C and C(16)(a) provide, in part:

“C. The commissioner has authority to make after notice and hearings as provided in this Chapter, any reasonable rules, regulations, and orders that are necessary from time to time in the proper administration and enforcement of this Chapter, including rules, regulations, or orders for the following purposes:
******
“(16) a. To regulate bv rules, the drill-ins'. casino-, cementing. disposal interval. monitoring-, plugging and permitting of disposal wells which are used to inject waste products in the subsurface and to regulate all surface and storage waste facilities incidental to oil and gas exploration and production, in such a manner as to prevent the escape of such waste product into a fresh ground water aquifer or into oil or gas strata; and may require reasonable bond with security for the performance of the duty to plug each abandoned well or each well which is of no further use.” (Emphasis added.)

LSA-R.S. 30:12 provides, in part:

“An interested person adversely affected bv any law of this state with respect to conservation of oil or gas, or both, or bv a provision of this Chapter, or bv a rule, regulation, or order made bv the commissioner hereunder, or bv an act done or threatened thereunder. . may obtain court review and seek relief by a suit for an injunction against the commissioner as defendant. Suit shall be instituted in the district court of the parish in which the principal office of the commissioner is located and shall be tried summarily. . . . ” (Emphasis added.)

These statutes clearly provide that exclusive jurisdiction for disposal wells for the subsurface injection of waste products is placed in the Department of Conservation and the Commissioner of Conservation of the State of Louisiana.

Any interested person affected by any provision of these statutes or by any rules, regulations or orders made by the commissioner under these statutes or by an act done or threatened thereunder may bring suit. However, when suit is so brought, it must be brought in East Baton Rouge Parish, the parish of the principal office of the commissioner.

In the case before us, plaintiffs seek a permanent injunction under LSA-C.C. art. 667 which, if granted, effectively rescinds the order of the commissioner issued under the authority of R.S. 30:1 D and 30:4 C(16)(a). Thus, the suit is, in substance, an attack on an order of the Commissioner of Conservation. Under the clear provisions of LSA-R.S. 30:12, the exclusive venue of this suit is in East Baton Rouge Parish. United Gas Pipe Line Co. v. Watson Oil Corp., 306 So.2d 731 (La.1975); Brown v. Alice-Sidney Oil Co., 343 So.2d 745 (La.App. 2nd Cir. 1977); Breaux v. Apache Oil Corporation, 240 So.2d 589 (La.App. 3rd Cir. 1970); Vincent v. Hunt, 221 So.2d 577 (La. App. 3rd Cir. 1969).

The plaintiffs argue that Cameron Parish is the proper venue under the Louisiana Environmental Affairs Act, citing LSA-R.S. 30:1074.

LSA-R.S. 30:1074(1) provides as follows:

“(1) Except as provided in Subsection (2) of this Section, any person having an interest, which is or may be adversely affected, may commence a civil action on his own behalf against any person whom he alleges to be in violation of this Chapter or of the regulations promulgated hereunder. The action must be brought either in the district court in the parish in which the violation or alleged violation occurs or in the district court of the domicile of the alleged violator, and shall be afforded preferential hearing by the court.”

We disagree with the plaintiffs’ contention. The act, by its own terms, does not apply to disposal wells.

LSA-R.S. 30:1145, which is a part of the Environmental Affairs Act, provides:

“Nothing- in this Part shall be construed to limit the power of the commissioner of the office of conservation to issue permits and make regulations relative to the subsurface injection of waste products and oil and gas field saltwater in compliance with Chapter 1 of Title SO of the Louisiana Revised Statutes of 1950 and the subsurface injection of hazardous wastes in compliance with the Safe Drinking Water Act, 42 USC 300 F et seq. and the Resource Conservation and Recovery Act of 1976, 42 USC 6901 et seq.” (Emphasis added.)

This provision of the Environmental Affairs Act clearly recognizes that the Commissioner of Conservation retains jurisdiction “relative to the subsurface injection of waste products.” The definition of “waste products” in LSA-R.S. 30:3 (15) is very broad and includes “any liquid, sludge, effluent, semi-liquid or other substance resulting from any process, whether manufacturing or otherwise.” This definition thus covers “hazardous waste products.”

We interpret this act to mean that waste products, defined by LSA-R.S. 30:3 (15) as “any liquid, sludge, effluent, semi-liquid or other substance resulting from any process, whether manufacturing or otherwise," are under the jurisdiction of the Commissioner of Conservation. These statutes include all “waste products” whether they are the result of oil and gas related industrial processes or other manufacturing processes. Hazardous wastes are simply waste products, the disposal of which requires, in addition to compliance with Chapter 1 of Title 30, compliance with certain federal statutes if they are to be disposed of by subsurface injection. This exclusive jurisdiction is also required by LSA-R.S. 30:1 D.

Since disposal wells are under the power of the Commissioner of Conservation, and LSA-R.S. 30:1145 specifically states that it is not to be construed to limit these powers, we conclude that LSA-R.S. 30:12 is the applicable exclusive venue provision and not LSA-R.S. 30:1074.

In conclusion, we find that the plaintiffs are in effect attacking the implementation and validity of an order issued by the Commissioner of Conservation relating to a disposal well. The jurisdiction of the Commissioner of Conservation is exclusive insofar as disposal wells for the subsurface injection of waste products are concerned. The exclusive venue (East Baton Rouge Parish) in any suit directly, indirectly or collaterally attacking such an order is that provided by LSA-R.S. 30:12. The trial judge erred in overruling the defendant’s exception of venue.

For these reasons, the judgment of the district court is reversed and it is ordered, adjudged and decreed that the exception of venue filed by Mermentau Resources, Inc. is sustained and this suit is dismissed without prejudice. All costs of court, appellate and trial court, are assessed to plaintiffs-respondents.


author:
LEE, Justice, for the Court:
      ROBERTSON, Presiding Justice,

text:
    MISSISSIPPI STATE BAR v. Rubel L. PHILLIPS.
    Misc. No. 778.
    Supreme Court of Mississippi.
    April 2, 1980.
    On Application to Modify Previous Opinion May 14, 1980.
    Jimmy L. Miller, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Robert C. Cannada, Alan W. Perry, Heidelberg, Woodliff & Franks, George F. Woodliff, Jackson, for appellee.
   LEE, Justice, for the Court:

Rubel L. Phillips [Phillips] was convicted of a felony [nine (9) counts] in the United States District Court for the Southern District of New York, and judgment was entered therein on March 11, 1977. A certified copy of the judgment was received by the Mississippi State Bar [The Bar] and, pursuant to Mississippi Code Annotated Section 73-3-339 (Supp.1979), he was suspended from the practice of law, pending appeal and final disposition of disciplinary proceedings. The judgment of the U. S. District Court was affirmed by the Second Circuit Court of Appeals on February 2, 1978, U. S. v. Stirling, 571 F.2d 709, and certiorari to the United States Supreme Court was denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116. Subsequently, a Complaint Tribunal of The Bar was organized, an evi-dentiary hearing was held, and on September 4, 1979, an order was entered by the Complaint Tribunal suspending Phillips from the practice of law for a period of three (3) years and six (6) months from and after April 20,1977, suspending one (1) year of the suspension due to his incarceration, and providing that the suspension terminate October 20, 1979. The Bar appeals from that order.

The question presented before this Court is whether or not Phillips should be disbarred, rather than suspended.

Phillips was indicted and convicted, along with four (4) other individuals, on nine (9) counts of deceiving, and conspiring to defraud the United States Government. He was sentenced on each of Counts (1) through (8) to ten (10) months imprisonment, the sentences running concurrently with each other, and was fined five thousand dollars ($5,000), on each of said counts, also to run concurrently. Imposition of sentence as to Count (9) was suspended. Phillips was also placed on probation for a period of one (1) year to commence upon release from confinement.

The Bar offered in evidence a stipulation of the parties and rested. The stipulation included copies of the indictment, judgment of the U. S. District Court, charge of the court to the jury, Phillips’ brief in support of his motion for a new trial filed in the U. S. District Court, brief of the United States Government filed in response to Phillips’ motion for a new trial, briefs by Phillips and the United States Government in the appeal to the Second Circuit Court of Appeals, and a statement that the judgment of the U. S. District Court for the Southern District of New York was affirmed by the U. S. District Court of Appeals for the Second Circuit and that the Supreme Court of the United States denied Phillips’ Petition for Writ of Certiorari. Evidence for Phillips was addressed to an explanation of the facts in connection with his conviction and was in mitigation thereof.

The parties discuss in their briefs Mississippi Code Annotated Sections 73-3-41 and 73-3-53 (1972), both sections being carried forward from Hutchinson’s Code of 1848. The first section provides that in the event any person (attorney) has been or should thereafter be convicted of a felony, manslaughter excepted, the court in which he had been convicted shall enter an order disbarring such convict. The second section provides that, if any lawyer is guilty of any deceit or malpractice or misbehavior or shall wilfully violate his duties, he shall be stricken from the roll and disbarred. The Bar argues that the statutes apply and, in themselves, require the disbarment of Phillips, while Phillips contends to the contrary. It is not necessary for us to discuss those statutes, since we hold that, in the present case, Mississippi Code Annotated Section 73-3-301 et seq. (Supp.1979) followed by the tribunal, apply here.

Phillips contends that the Complaint Tribunal has discretion in arriving at, and entering, its judgment and that the same may not be set aside or changed unless the tribunal has acted arbitrarily and capriciously. He cites Mississippi Code Annotated Section 73-3-327 (Supp.1979), which sets forth:

“At the conclusion of the hearing the complaint tribunal, upon the majority vote of the members of such tribunal, shall render a written opinion incorporating a finding of fact and a judgment thereon. The judgment of the complaint tribunal may provide the following:
(a) Exonerate the accused attorney and dismiss the complaint.
(b) Reprimand and admonish the attorney, as provided in section 73-3-319(b) of this act.
(c) Suspend the attorney from the practice of law for any period of time.
(d) Permanently disbar the attorney.”

Attorneys admitted, or permitted, to practice law in this state are subject to the exclusive and inherent disciplinary jurisdiction of the Supreme Court of Mississippi. Disciplinary agencies such as the Complaint Tribunals appointed by the Supreme Court are established and designated to implement and carry out such disciplinary action.

Mississippi Code Annotated Section 73-3-329 (Supp.1979) provides that either party may appeal from an order of the Complaint Tribunal. On appeal, the following subsections are significant:

“(4) The record on appeal shall consist of the formal complaint, all other pleadings, the transcript of the testimony and the written opinion and judgment of the complaint tribunal.
(5) On appeal, the court may review ail of the evidence and the law and the findings and conclusions of the complaint tribunal and it may make such findings and conclusions and render such order as it may find to be appropriate based upon the whole record.” (Emphasis added)

In Mississippi State Bar Association v. Wade, 250 Miss. 625, 167 So.2d 648 (1964), the Court had before it the petition of Wade for reinstatement, after having been disbarred from the practice of law. Sections 8714, 8715, and 8716, Mississippi Code Annotated (1942) provided the procedures. Section 8715 was carried forward in identical language to Mississippi Code Annotated Section 73-3-155 (1972), which was repealed by Ch. 566, § 29 [1974] Miss. Gen. Laws 808, at 821.

The above sections provided that, in matters of disbarment and reinstatement to practice law, the Supreme Court shall consider the evidence in the case as disclosed by the record and such other evidence as it may deem necessary for the administration of justice, and shall decide all questions of law and fact, and render final judgment as to the disbarment, suspension and/or reinstatement, as the case may be. The sections further provided:

“The rule that the supreme court will not reverse the judgment of the lower court on a question of fact unless it affirmatively appears upon the face of the record that the cause was decided contrary to the evidence shall not apply in cases arising under this article, but the supreme court shall be the final judge of the facts, and the judgment to be rendered thereon.” Miss.Code Ann. § 73-3-155 (1972).

However, under the then procedure for disbarring attorneys, the Board of Bar Commissioners, when proof was presented to it indicating an attorney had violated the rules of conduct, instituted disciplinary proceedings in the circuit or chancery court of the county in which the accused resided. The complaint was then heard and acted upon by the court. Under present procedure, the complaint is heard by a Complaint Tribunal and the appeal is direct to the Supreme Court. In Wade, the Court said:

“At the outset, ‘The rule that the Supreme Court will not reverse the judgment of the lower court on a question of fact unless it affirmatively appears upon the face of the record that the cause was decided contrary to the evidence shall not apply in cases arising under this act, but the Supreme Court shall be the final judge of the facts, and the judgment to be rendered thereon,’ . . . ” 250 Miss, at 628-29, 167 So.2d at 649.

We think that subsection (5), Mississippi Code Annotated Section 73-3-329 (Supp.1979), is no less plain than the statutes of the Mississippi Code of 1942 and 1972 and that the section does not diminish the inherent power of the Mississippi Supreme Court in such matters, but, rather, enhances it. We are of the opinion that the rule applicable to administrative agencies to the effect their orders must be affirmed unless (1) they are arbitrary and capricious, and (2) are not supported by substantial evidence, and the rule that, as in chancery court, the chancellor will not be reversed on the facts, unless he is manifestly wrong, do not apply in the case sub judice and to the question here. We hold that, on appeal, this Court reviews the evidence, the law, the findings and conclusions of the Complaint Tribunal, and then renders such order as the Court may find to be appropriate, based upon the entire record.

The indictment, conviction and sentence of Phillips in the U. S. District Court for the Southern District of New York, and affirmance of the judgment by every appellate court through the United States Supreme Court, are confessed. We are bound to give full faith and credit to judgments of our sister states and the federal system, even to the recitation of facts in decisions of their appellate courts. In United States v. Stirling et al., 571 F.2d 708 (2d Cir. 1978) (Rubel Phillips appeal), the Second Circuit Court of Appeals said:

“In late 1970, appellant Rubel Phillips, a Mississippi attorney, helped organize on Homex’s behalf a group of Mississippi citizens into a non-profit public benefit corporation that would be eligible for federal, state and local financing of housing projects. The corporation was called the Greater Gulf Coast Housing Development Corporation (‘Greater Gulf’). In December, 1970, Greater Gulf and Homex entered into two agreements. The first for $100 million, called for the construction of a 5,000-unit housing project over a 6-year period, and was conditioned upon the modules being constructed in a Mississippi factory. The second, for $15 million, called for the construction of an 800-unit modular housing project over an 18-month period. These agreements, however, were effectively worthless unless and until Greater Gulf was successful in obtaining a funding commitment from appropriate government agencies.
‡ # s(t $ $ }fc
Appellant Phillips, the central figure in the Mississippi Greater Gulf scheme, argues that the district court erred by refusing to grant his mid-trial Rule 14 motion to sever his trial from that of the other defendants. Essentially, he claims that the indictment charged, and the evidence showed, multiple conspiracies rather than a single conspiracy; that he was, at most, involved in only one of those conspiracies; and that the forced combination of his trial with that of the others operated to his substantial prejudice. We disagree.
‡ ‡ $ )fC 9fC $
Phillips was charged with playing a significant and knowing role in the advancement of the objective of the conspiracy. Although he was not charged with having participated in every detail of that conspiracy, we have no doubt that he was properly tried with the other conspirators. He played the key role in orchestrating the most blatant misrepresentation in the entire Homex drama, the Greater Gulf project. The public interest in avoiding unnecessarily multiplicious litigation was well-served by the district court’s decision. We hold that Phillips was not prejudiced by the denial of the motion nor was its denial an abuse of discretion.” 571 F.2d at 719-20, 732, 733.

Mississippi Code Annotated Section 73-3-339 (Supp.1979) provides that a certified copy of the final judgment of conviction of an attorney in a state court or federal court of any felony (other than manslaughter or any violation of the United States Internal Revenue Code), or of any offenses involving fraud, dishonesty, misrepresentation, deceit, failure to account for money or property of a client, or of any offense involving moral turpitude, shall be conclusive evidence of his guilt of that offense in any disciplinary proceeding instituted against him and based on such conviction.

The law is the greatest single force in society. Members of the law profession, which includes judges and attorneys, have a high responsibility and an important duty to maintain inviolate those standards of conduct without which the profession cannot survive. Unethical activities on the part of some members of the law profession breed public disrespect for it, the members thereof, and the law. Discipline is essential and, thus, the reason for the recognition that the Supreme Court of Mississippi has inherent power to see that appropriate discipline is administered after a proper complaint. We hold that, on the complaint sub judice where Phillips was convicted in the U.S. District Court for the Southern District of New York, on nine (9) felony counts, involving moral turpitude, appropriate discipline should be, and is, disbarment.

Therefore, the order of the Complaint Tribunal is vacated and judgment is entered here disbarring Rubel L. Phillips from the practice of law in the State of Mississippi.

ORDER OP COMPLAINT TRIBUNAL VACATED AND JUDGMENT ENTERED HERE.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER and BROOM, JJ., concur.

ROBERTSON, P. J., and BOWLING and COFER, JJ., dissent.

ROBERTSON, Presiding Justice,

dissenting:

I respectfully dissent from this Court’s opinion, reversing the decision of the Complaint Tribunal suspending Rubel L. Phillips from the practice of law, and the disbarring of him by this Court.

I am of the opinion that this Court should have affirmed the decision of the Complaint Tribunal suspending Phillips from the practice of law from April 20, 1977, to October 20, 1979. I think the Tribunal’s decision is supported by the law and the evidence adduced at the hearing before the Tribunal.

Whether he is suspended or disbarred, he must file a Petition for Reinstatement with this Court and be thoroughly investigated, as provided in Mississippi Code Annotated section 73-3-337 (Supp.1979). The only difference is that if we affirmed the judgment of suspension which terminated on October 20, 1979, he could immediately file his Petition for Reinstatement, while if he is disbarred he must wait three years from the date of the judgment disbarring him before he can petition for reinstatement.

Since Phillips was a resident attorney in the Central Supreme Court District, his case was referred by this Court for hearing to the Complaint Tribunal for the Southern Supreme Court District. The pleadings, stipulations and testimony fill three volumes, containing 513 pages.

The sole assignment of error of the appellant, Mississippi State Bar, is:

“The Tribunal erred in not imposing disbarment.”

Appellant’s main point was summarized in its brief in this way:

1. Disbarment of Appellee was required for either one or both of two reasons: A] The type of conduct involved in his conviction and B] he was convicted of a felony.

The Bar frankly admits that its case is based on two old statutes which have come forward unchanged since 1848 and which were not expressly repealed by the new comprehensive disciplinary law [Mississippi Code Annotated §§ 73-3-301 et seq. (Supp. 1979)]. These two statutes provide:

§ 73-3-41. Convicts of felony disqualified.
Every person who has been or shall hereafter be convicted of felony, manslaughter excepted, shall be incapable of obtaining a license to practice law; or, if already licensed, the court in which he shall have been convicted shall enter an order disbarring such convict. [Emphasis added].
§ 73-3-53. Penalty for misconduct.
If any attorney or counselor at law be in default of record, or otherwise guilty of any deceit, malpractice or misbehavior, or shall wilfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state.

The Bar contended before the Tribunal and now contends here that neither the Tribunal nor this Court has any leeway or flexibility in imposing judgment, that if an attorney was convicted of a felony in this state or any of the other 49 states, the Complaint Tribunal must automatically disbar. The Bar continues to press this argument in spite of the fact that the new comprehensive disciplinary law specifically provides:

§ 73-3-327. Complaint tribunal — written opinion — judgment.
At the conclusion of the hearing the complaint tribunal, upon the majority vote of the members of such tribunal, shall render a written opinion incorporating a finding of fact and a judgment thereon. The judgment of the complaint tribunal may provide the following: [Emphasis added].
(a) Exonerate the accused attorney and dismiss the complaint.
(b) Reprimand and admonish the attorney, as provided in section 73-3-319(b) of this act.
(c) Suspend the attorney from the practice of law for any period of time.
(d) Permanently disbar the attorney.

The Bar offered in evidence a stipulation of the parties and rested. The majority opinion described the stipulation in this way:

“The stipulation included copies of the indictment, judgment of the U.S. District Court, charge of the court to the jury, Phillips’ brief in support of his motion for a new trial filed in the U.S. District Court, brief of the United States Government filed in response to Phillips’ motion for a new trial, briefs by Phillips and the United States Government in the appeal to the Second Circuit Court of Appeals, and a statement that the judgment of the U.S. District Court for the Southern District of New York was affirmed by the U.S. District Court of Appeals for the Second Circuit and that the Supreme Court of the United States denied Phillips’ Petition for Writ of Certiorari.”

The remainder of the voluminous record is composed of the testimony of witnesses for Phillips.

Joseph H. Hennessey, a partner in the law firm of Lovett, Ward and Hennessey, of Washington, D.C., and a former chairman of the Ethics and Grievances Committee of the Federal Communications Bar Association, testified for Phillips. Hennessey was employed by Dixie National Broadcasting Corporation, of which Phillips was a member, to secure a permanent license to operate Station WLBT, TV Channel 3 in Jackson, Mississippi. A rival group organized by the United Church of Christ, with Kenneth Dean as President and W. T. Richardson as a member, succeeded in getting an interim license from the Federal Communications Commission. United Church of Christ funded and was instrumental in founding and maintaining the interim operation which has gone on for ten years while the bitter, long-drawn-out, fight before the Federal Communications Commission has been going on. The gist of his testimony was that Phillips was caught in the internecine fighting between these two rival groups, and was largely convicted on the testimony of W. T. Richardson, who was also a high official in the Farm Home Administration. Richardson changed his testimony several times under pressure after he had been promised governmental immunity for his testimony.

Michael B. Mukasey, an attorney of New York City, who was lead defense counsel for Phillips in his trial before the United States District Court for the Southern District of New York, testified that guilt by association was the main reason for Phillips’ conviction. His testimony was that the evidence against the other four defendants, all residents of New York City, with whom Phillips was associated for a little over a year, was overwhelming. These four defendants were full-time officers and directors of Stirling Homex Corporation, the parent corporation. Mukasey’s statement before the Complaint Tribunal was:

“He [Phillips] was joined for trial with a large number of people with whom he had very little acquaintance when he met them, with whom he had no association with most of their enterprises, and with whom, I believe then, and I believe now, that he was improperly joined. I believe that was what was primarily responsible for the verdict in this case, as well as the jury’s simple inclination to go along snowball style with what was suggested by the government.”

The other witnesses were those who had personally known Phillips for many years and testified as to his good character. They were:

Erskine W. Wells, a past president of the Mississippi State Bar Association and an attorney of Jackson, Mississippi;

Orma R. Smith, Jr., an attorney of Corinth, Mississippi, where Phillips was born and raised;

Reverend John R. Claypool, pastor of Northminster Baptist Church of Jackson, who was and still is Phillips’ pastor;

James Herman Hines, Chairman of the Board of Deposit Guaranty National Bank, who had known Phillips for thirty years;

Dr. George D. Purvis, an orthopedic surgeon, and an active fellow church worker with Phillips for the past fourteen years;

Zack Taylor, Jr., an insurance executive of Jackson, a fellow church member, who had worked closely with Phillips in the church and in insurance matters;

Jerome Steen, an attorney of Jackson since 1960, who testified that if he had a conflict of interest as to his best client he would unhesitatingly refer him to Rubel Phillips for representation;

George P. Hewes, III, an attorney of Jackson, Mississippi, who has known Phillips for 25 years and who had practiced law before Phillips when he was Chairman of the Mississippi Public Service Commission, and who had also worked with him on the Board of St. Andrews Episcopal Day School;

Sam Wilkins, an attorney of Jackson, who had known Phillips for a number of years. He testified that he had defended a good many conspiracy cases and that if you have several bad guys and one good guy involved in a conspiracy case, inevitably they are all going to be found guilty, regardless of the facts; and, finally,

Robert R. Perry, who first practiced law with Phillips as a member of the firm of Overstreet, Kuykendall, Perry and Phillips, which later became the law firm of Perry, Phillips, Crockett and Morrison.

Jimmy L. Miller, complaint counsel for the Bar, made this statement when both sides had rested:

“Your Honor, I really have no summation except they did a pretty good job of retrying a criminal case.
“The Bar’s position is it is still a felony, and the natural consequences must flow from it.” [Emphasis added].

The majority opinion, while holding that Sections 73-3-301 et seq. apply, appears to me to be reverting back to the two 1848 statutes (§§ 73-3-41 and 73-3-53) for its authority in holding that, because Phillips was convicted of a felony, which conviction was affirmed, no matter what the testimony was before the Complaint Tribunal, disbarment was mandated by the law. In my opinion, the majority has lost sight of the fact that Phillips has paid the price for his misconduct, he has served his sentence, and the Complaint Tribunal and this Court is now concerned primarily with what further discipline (not punishment) should be imposed.

The intent and purpose of the Legislature in enacting into law Mississippi’s new comprehensive disciplinary act (Chapter 566 of the 1974 General Laws of Mississippi) is clearly and succinctly expressed in its title:

“AN ACT to establish a more effective disciplinary procedure for lawyers; to provide for hearing and appeal; to allow for suspension, disbarment and restoration and to state the grounds therefor; to recognize the inherent power of the judicial branch of government; to determine the qualifications for the continuance of the practice of law; to amend Section 73-3-143; to repeal Sections 73-3-147, 73-3-149, 73-3-151, 73-3-153, 73-3-155, 73-3-157, 73-3-159, 73-3-161, 73-3-163, 73-3-165, 73-3-167 and 73-3-169, Mississippi Code of 1972, which contain the present procedures for discipline; and for related purposes.” [Emphasis added],

A comprehensive title is required by Section 71, Mississippi Constitution of 1890, which provides:

“Every bill introduced into the legislature shall have a title, and the title ought to indicate clearly the subject matter, or matters, of the proposed legislation.”
Section 73-3-339 provides in part:
“Upon the conviction of an attorney, or the entry by him of a plea of nolo conten-dere, for the above offenses, excluding manslaughter or any violation of the United States Internal Revenue Code, the board of commissioners shall immediately direct complaint counsel to institute a disciplinary proceeding in which the sole issue to be determined will be the extent of the final discipline to be imposed; .” [Emphasis added].

Section 73-3-341, which covers disbarment or suspension in another state, provides, among other things:

“The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on said attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.” [Emphasis added].

To me, this simply means that neither the Complaint Tribunal nor this Court is hidebound to disbar an attorney solely because he was convicted of a felony and disbarred in a sister state.

I find fault also with the rule laid down in the majority opinion that we will apply a stricter rule of evidence in an appeal from the decision of a Complaint Tribunal, which is composed of three qualified and trained lawyers, than we apply in an appeal from an administrative agency where we have said that the order of an administrative agency must be affirmed unless it is (1) arbitrary and capricious, or (2) not supported by substantial evidence. Administrative agencies are usually composed of laymen, and appeals from such agencies are usually on bills of exception. The law provides for a full transcript of proceedings before a Complaint Tribunal. Section 73-3-325 provides in part:

“All hearings by a complaint tribunal shall be a full evidentiary hearing, conducted on an adversary basis. The rules of evidence and procedure applicable to and followed by the chancery courts of Mississippi shall apply to such hearings. A duly qualified court reporter shall be in attendance and shall make a full and complete transcript of the proceedings.” [Emphasis added].

Is the “full evidentiary hearing”, required by Section 73-3-325, a mere charade, “going through the motions” of a hearing, where the end result has already been predetermined by another court in another state? I think not.

Surely the Complaint Tribunal is entitled to consider the evidence adduced at the “full evidentiary hearing” before it, and to consider matters in extenuation or mitigation and the fact that the accused attorney has served his full sentence and has paid the full penalty imposed upon him.

Section 73-3-339 also provides:
“[H]owever, a disciplinary proceeding so instituted shall not be brought to hearing until all appeals from such conviction have been concluded."

The requirement that the “full evidentia-ry hearing”, mandated by Section 73-3-325, not be conducted “until all appeals from such conviction have been concluded” means to me that the Complaint Tribunal is entitled to consider the fact that the accused attorney has been convicted of a felony and that the conviction has been affirmed, along with all the other evidence adduced at the “full evidentiary hearing” before it. Then only does the Complaint Tribunal make up its collective mind from a consideration of all the evidence, and fulfill its solemn duty and responsibility of determining “the extent of the final discipline to be imposed.”

Considered in this light, I think there was ample evidence supporting the decision of the Complaint Tribunal and that its decision should be affirmed.

I, therefore, dissent.

BOWLING and COPER, JJ., join in this dissent.

ON APPLICATION TO MODIFY PREVIOUS OPINION

Disbarment of Rubel Phillips was ordered by this Court based on an opinion handed down on April 2, 1980. Now he has filed a petition for rehearing, which makes no challenge of the content of the opinion as written. Phillips asserts that the Court should “specify a date from which the three year period of time will run before this Appellee can file a Petition for Reinstatement.” We here treat his petition as being in actuality an application to modify our previous opinion, and our judgment is that modification will be appropriate.

The application before us asserts that under Mississippi Code Annotated § 73-3-337 (1972) Phillips is entitled to petition for reinstatement within three (3) years from the date of his conviction in a federal court in the State of New York on March 11, 1977. We are urged to order that the three year period runs from that date.

As stated in our opinion previously handed down in this cause, the Complaint Tribunal should have disbarred Phillips by its order dated September 4, 1979. Upon the peculiar facts of this case, our conclusion is that the three year period under § 73-3-337, supra, will run from and after September 4, 1979 rather than from the date on which Phillips was originally convicted (or any other suggested date) in a federal court trial which transpired in the State of New York.

APPLICATION FOR MODIFICATION OF PREVIOUS OPINION GRANTED.

All Justices concur.

      . Mississippi Code Annotated Sections 73 3-301 and 73-3 303 (Supp.1979).

      . The statute reads in part: “Any time after the expiration of three (3) years from and after the date of the final judgment of disbarment, the convicted attorney may petition the court for reinstatement.”