author: SAVOIE, Judge.

text:
    Annie A. SMART, et al. v. Gordon CURRY, et al.
    No. 84 CE 0977.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 9, 1984.

      Chester C. Williams, Baton Rouge, for plaintiffs-appellants Annie A. Smart, et al.
    Ernest L. Johnson, Baton Rouge, for defendant-appellee Gordon Curry.
    Cynthia Young, Baton Rouge, for defendant-appellee Secretary of State.
    Before SAVOIE, CRAIN and LANIER, JJ.
   SAVOIE, Judge.

This is a suit brought by plaintiffs, Annie A. Smart, Lenora R. Jackson, and Leola S. Jackson against defendant, Gordon Curry, objecting to the candidacy of defendant Curry for the office of East Baton Rouge Parish Councilman, Metropolitan District 10. At trial, the district court granted the defendant’s motion for a directed verdict at the close of the plaintiffs’ case. Plaintiffs have appealed that judgment pursuant to La.R.S. ^^(«(D).

Gordon Curry filed a Notice of Candidacy on July 16, 1984, in which he stated he would be a candidate for election to the office of Councilman, Metropolitan District 10. Defendant Curry listed his address as 2045 Riverside North, Apt. 318, Baton Rouge, LA 70802. He also stated he was a qualified elector of Ward 1, Precinct 17 of the Parish of East Baton Rouge, the correct precinct for the residence given. He was actually registered in Ward 1, Precinct 4, the correct ward and precinct for his former residence. On July 25, 1984, defendant changed his voter registration to reflect the above adress. Plaintiffs filed their petition objecting to defendant’s candidacy on July 30, 1984 at 3:49 P.M. Qualifying for this particular election closed on July 20, 1984. Therefore, plaintiffs’ suit was timely filed under R.S. 18:1405(A). At the trial, it was proven that defendant Curry, at the time he completed his notice of candidacy, was, in fact, registered to vote in Ward 1, Precinct 4 of East Baton Rouge Parish. The plaintiffs argue that because of this nonconformity, defendant should be disqualified as a candidate for East Baton Rouge Parish Councilman, Metropolitan District 10.

At the outset, it is interesting to note that both Precinct 4 and Precinct 17 of Ward 1 in East Baton Rouge Parish are in Metropolitan District 10 of the City-Parish Council apportionment. La.R.S. 18:463 (which requires a candidate to state the “parish, ward and precinct where he is registered to vote”) also requires that the candidate state “the office he seeks.” Undoubtedly, the purpose of the notice of candidacy requiring a statement of “parish, ward and precinct” is to prohibit absentee representation, i.e., representation by a non-elector of the district represented. Since both of defendant’s places of registration are within District 10, the upholding of the candidacy by the trial court did not thwart the intent of the law.

In Roe v. Picou, 361 So.2d 874 (La.1978), the Supreme Court dealt with an objection to candidacy in a school board election. There the defendant candidate had listed the incorrect ward number of the position he sought. Prior to the qualifying period, a federal court decree had placed a different apportionment scheme for school board positions than other parish positions. Because of this, the defendant erroneously listed the incorrect ward number for his position. The district court had found Pi-cou not qualified, and the court of appeal affirmed. However, the Supreme Court reversed. The Court stated “we reject any disqualification of a candidate because of technical alleged inadequacies in the description of the office sought, where both the candidate and his opponent were clearly aware of his intent to qualify for the office he sought, which was described with sufficient particularity as unmistakably to designate it as the sole position available for candidacy to a resident of Belle Chase, such as relator described himself.” 361 So.2d at 878.

In the present case, it is clear from the notice of candidacy which office the defendant seeks. Under either voting registration, defendant is qualified to run for Councilman District 10. Our inquiry in this matter is whether the fact that the defendant failed to change his voter registration to reflect his new address prior to his notice of candidacy is a technical inadequacy within the meaning of Roe v. Picou. We hold that it is.

In support of this holding we cite the language of Roe v. Picou;

“In similarly rejecting technical objections to the sufficiency of a notice of candidacy, we stated long ago that the election laws do not ‘indicate that it was the purpose of the law makers to obstruct with mere technical difficulties, the exercise of the right, which every citizen has, to seek the approval of his political associates, or of the public at large. To the contrary, the whole spirit of the legislation is to encourage the multiplication of worthy candidates for nominations to public office, in order that the body of voters constituting a political party, or constituting the electorate at large, may have the benefit of a choice, and not be compelled to accept candidates chosen by the minority or thrust upon them in some other way.’ ” Langridge v. Dauenhauer, 120 La. 450, 452-53, 45 So. 387, 388 (1908).

Objective examination of the facts of this case in the light of the above language mandates a holding in favor of defendant’s candidacy. We hold that under the facts of this case, placing of the precinct in which defendant subsequently registered on the notice of candidacy was a technical inadequacy which does not disqualify defendant from the office he seeks.

Plaintiff also argues that the trial judge erred when plaintiff was not allowed to file a supplemental and amending petition at the beginning of the hearing. The amending petition attempted to add two paragraphs to the original petition. These paragraphs alleged new grounds for disqualification which were not factually supported by the original petition.

La.R.S. 18:1406(B) states in part: “The trial judge may allow the filing of amended pleadings for good cause shown and in the interest of justice.” In denying the motion to allow the filing of the amending petition, the trial judge stated, “the specific statute dealing with the petition in this case, Paragraph B of Section 1406, provides that the petition shall set forth in specific detail the facts upon which the objection or contest is based. Article 18:492 provides the grounds for an objection to candidacy. The grounds which you raise in the original petition are those shown in ground one. Grounds which are listed in the amending petition are separate grounds under the same statute.”

We find no abuse of discretion under La.R.S. 18:1406(B) for the trial court to deny leave to file the amending petition. Plaintiff argues that since the defendant was served with the original petition, he was put on notice that his candidacy was being challenged. Further, plaintiff argues that since defendant was on notice, he should be prepared for an attack objecting to his candidacy based on any ground. In the instant case the original petition stated the defendant was being challenged for putting the incorrect precinct number on his notice of candidacy [i.e. he had “failed to qualify for the primary election in the manner prescribed by law”, La.R.S. 18:492(1)]. Then, on the day before the trial of this case, defendant was served with improperly filed papers alleging he was being challenged because he did not “meet the qualifications for the office he seeks in the primary election.” La.R.S. 18:492(3). The trial judge apparently felt that it would be improper to expect defendant to prepare a defense in that short time period, and in his discretion denied plaintiff leave to file his amended petition. We do not find this to be an abuse of discretion.

For the foregoing reasons, the action of the trial court in granting defendant’s motion for a directed verdict is affirmed. Plaintiffs are to pay all costs.

AFFIRMED.

      . La.R.S. 18:1409
      D. Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs. The clerk of the trial court shall give notice of the order of appeal to the clerk of the court of appeal and to all the parties or their counsel of record. The trial judge shall fix the return day at a time not to exceed five days after rendition of judgment.

      . La.R.S. 18:1405
      A. An action objecting to candidacy shall be instituted within ten days after the close of qualifications for candidates in the primary election or within ten days after the defendant filed notice of his candidacy, whichever is later. After the expiration of the later time period set forth in this Section, no further action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492.

      . This is particularly true since defendant was the incumbent Councilman for District 10 and was seeking re-election.

      . The record reflects that plaintiff acquiesced in the ruling. Plaintiff made no objection, took no exception; plaintiff merely answered "yes sir."


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Donald R. McLELAND, Appellant.
    No. 16300-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Dec. 7,1984.

      Indigent Defender Office by Richard C. Goorley and Richard E. Hiller, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., James Stewart, John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Donald Ray McLeland appeals his conviction and sentence for Armed Robbery, a violation of LSA-R.S. 14:64. He argues for reversal of his conviction and sentence on the basis of three assigned errors. We affirm.

In the early morning hours of November 30, 1982, the Palomar Hotel in Shreveport, Louisiana was robbed. The night clerk, J.B. Fincher, testified that a red Volkswagen pulled up to the drive-thru window at the hotel. The person in the passenger side of the car pointed a sawed-off shotgun at Fincher and demanded money in large denominations. Mr. Fincher gave the gunman between three and four hundred dollars from the motel cash register and $152 of his own money. After receiving the money, the gunman asked for the telephone, jerked the receiver from the phone, and threw it into the street. The ear then left, heading in the direction of Monkhouse Drive.

Immediately after the armed robbery call went out on the police frequency, an officer spotted a car on Monkhouse Drive which met the description given on the police radio. The officer pursued the vehicle which eventually crashed into a ditch. Four white males got out of the car. One of the boys, a juvenile, was captured at the scene. The others ran north through a muddy construction site into a wooded area. A description of the others suspected of involvement in the robbery was circulated. At about 7:30 that morning, the defendant and Eddie Dye were located coming from behind a house about one mile west of the site where the car had been abandoned. Their clothing was muddy and wet. They were subsequently placed under arrest and transferred to the police station. The fourth suspect, Barry Tripp, was located about five hours after the defendant’s arrest. He was found in the vicinity of the Industrial Loop and 1-20, about three to four miles west of the scene where the car was wrecked. His clothing was also muddy and wet, and he was barefooted.

Barry Tripp and Eddie Dye pled guilty to accessory after the fact to armed robbery and each received sentences of four and one-half years imprisonment. The juvenile was surrendered to the juvenile authorities and adjudicated a delinquent for his participation in the crime. Donald Ray McLeland was charged by bill of information with armed robbery and was convicted after a jury trial in which all three of his accomplices testified for the State. For his involvement in the armed robbery, McLeland was sentenced to twenty-five years at hard labor, without benefit of parole, probation, or suspension of sentence.

ASSIGNMENT OF ERROR NO. 3

Defendant asserts that the trial court erred in denying his motion for mistrial based on the failure of the prosecution to reveal favorable evidence prior to trial which he claims to be discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

At trial, the victim was asked by the prosecutor to describe the person who held the gun. He answered that “he was about as skinny as him, and had, you know — in other words, that is him over there.” During cross-examination of this witness, it was established that approximately ten months after the crime, and one month before trial, the prosecutor showed Fincher a photograph of the defendant and a group of photographs depicting the crime scene. Other than this one instance, the victim was not shown any other photographic display, nor was he asked to view a live lineup. Upon eliciting this information, the defense attorney asked for removal of the jury, and out of their presence, made a motion .for mistrial on the basis of the prosecution’s non-disclosure of these facts. The defendant asserted at the trial court level and reurges on appeal that the failure of the prosecution to reveal this information precluded the opportunity to suppress an in-eourt identification by the victim on the basis of the impermissibly suggestive pretrial identification procedure.

Due process prohibits the conducting of an identification procedure in a manner which is unnecessarily suggestive and conducive to irreparable mistaken identity. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In testing the constitutionality of an out-of-court identification, the suggestiveness of the identification procedure itself must first be examined. State v. Guillot, 353 So.2d 1005 (La.1977); State v. Clark, 437 So.2d 879 (La. App. 2d Cir.1983), writ denied, 442 So.2d 460 (La.1983).

One-on-one lineup procedures are not favored. State v. Newman, 283 So.2d 756 (La.1973). However, whether or not a suggestive identification occurred depends on all the circumstances. State v. Johnson, 333 So.2d 223 (La.1976). In State v. Johnson, supra, the Supreme Court stated that the presentation to the victim of two photographs, one of each defendant, after defendants had been taken into custody, was a practice not to be lightly condoned considering the strong potential for mis-identification. In U.S. v. Williams, 616 F.2d 759 (5th Cir.1980), the U.S. Fifth Circuit Court found that the display of a single photograph of the defendant rather than an array of photographs depicting different individuals was impermissibly suggestive.

Considering the totality of the circumstances surrounding the victim’s out-of-court viewing of the defendant’s photograph in the instant case, we have little difficulty in concluding that this identification procedure was impermissibly suggestive. We are particularly swayed by the fact that the victim was never asked to view either a live lineup or an array of photographs, but was only shown a single photograph of the defendant one month before trial, ostensibly in preparation for trial. Explaining the failure of the police to conduct a live lineup, the detective who investigated the case testified that after he talked with Mr. Fincher, he determined that a lineup was not warranted as he believed that the victim could not make an identification.

Although we specifically find that the identification procedure under the facts of this case was impermissibly suggestive, this alone does not indicate a violation of due process rights. It is the likelihood of misidentification which creates a due process violation, not merely the suggestive identification procedure. State v. Guillot, supra; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Exclusion of the in-court identification is not required, therefore, unless the imper-missibly suggestive display created a substantial likelihood of misidentification. Manson, supra.

Reliability of an identification is tested by examining each of five factors set forth in Neil v. Biggers, supra. These factors were reiterated in the Manson decision and have been followed by the Louisiana Supreme Court. See State v. Guillot, supra. Specifically addressing each of the Manson factors reveals:

1) The opportunity to view: The victim testified that the entire encounter with the armed robbers lasted approximately four to five minutes. Two ski masks were found inside the wrecked vehicle. Eddie Dye testified that he had a ski mask on but he did not believe anyone else in the car had on one.

2) The degree of attention: Mr. Fincher testified that he could only see one of the car’s occupants, the one on the passenger side with the sawed-off shotgun. He testified that he was extremely frightened during the robbery.

3) The accuracy of the description: At trial, Mr. Fincher was unable to state whether or not the gunman had on a mask. He stated that if it was a mask it fit well, like a stocking, and was brownish not white. He was unable to give any further physical description of the gunman other than “he was about as skinny as him and had, you know — in other words, that is him over there.”

4) The witness’ level of certainty: Although the victim identified defendant at trial, his manner of identification indicated both uncertainty and hesitancy about the identification. When questioned about the picture showed to him by the prosecutor, Mr. Fincher stated that the photograph “looked like it had his features.”

5) The time between the crime and confrontation: As previously discussed, ten months had elapsed between the crime and the pretrial identification.

Our review of these criteria as applied to this case cause us to conclude that a significant chance of misidentification by the victim existed in this case. Moreover, the pretrial identification procedure was impermissibly suggestive and the in-court identification lacked a sufficient independent basis for passage of constitutional muster. We must therefore review whether the victim’s in-court identification of the defendant under these circumstances was harmless error.

In State v. Gibson, 391 So.2d 421 (La.1980), the Louisiana Supreme Court adopted the harmless error test enunciated by the U.S. Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This test requires that a reviewing court ask whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Further,- the Court must be able to declare a belief that the error was harmless beyond a reasonable doubt. State v. Gibson, supra; State v. Westfall, 446 So.2d 1292 (La.App. 2d Cir.1984).

The focus of Fincher’s testimony at trial, besides establishing the sequence of events surrounding the -robbery, was his identification of McLeland as one of the armed robbers. However, in addition to Fincher’s identification, three other witnesses implicated defendant as a principal in the crime. Each of the co-defendants testified that defendant was in the car when the robbery occurred. Eddie Dye testified unequivocally that it was McLe-land who was the gunman who robbed Fincher. Considering the other testimony establishing McLeland’s participation in the crime, Fincher’s testimony as to the identity of the robber was, under these circumstances, merely cumulative. Further, the jury had the benefit of hearing the facts surrounding the pre-trial viewing of defendant’s photograph by the victim which facts were fully explored during the defense counsel’s thorough cross-examination of Mr. Fincher. Considering the foregoing, we find the error complained of to be harmless beyond a reasonable doubt.

However, it is not so much the identification itself by the victim that defendant’s counsel complains of as it is the fact of the prosecutor’s non-disclosure under Brady v. Maryland of the facts surrounding the photographic display. In Brady v. Maryland, the United States Supreme Court held that the State, upon request, must disclose evidence favorable to the accused where the evidence is material to either guilt or punishment irrespective of the good faith or bad faith of the prosecution. The Brady rule has been extended to encompass cases in which the non-disclosed evidence pertains to the reliability of key State witnesses. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Smith, 430 So.2d 31 (La.1983). Brady is concerned not with the state or federal discovery statutes, but with the defendant’s right to a fair trial mandated by the-due process clause of the Fifth and Fourteenth Amendments.

In U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court delineated three categories of cases to which the Brady decision applies, based on the type of discovery requests made by the defense of the prosecutor, and explained the appropriate standards of materiality which give rise to the prosecutor’s constitutional duty to volunteer exculpatory matter to the defense.

The instant discovery motion was general in nature. When the request for material is general, it falls into the third category delineated by Agurs. In such cases, if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed by the failure to disclose. U.S. v. Agurs, supra; State v. Willie, 410 So.2d 1019 (La.1982).

We are convinced, in light of the overwhelming evidence adduced by the prosecution in this case to show defendant’s guilt, that the failure to disclose the fact of the previous identification prior to trial does not create a reasonable doubt where none otherwise existed. When the victim’s in-court identification is excised, overwhelming evidence of the defendant’s guilt as a principal to the armed robbery remains. Each of the defendant’s three accomplices testified at trial. Eddy Dye testified that he drove the red Volkswagen to the Palomar Hotel where the defendant, who was seated in the passenger’s seat, held the sawed-off shotgun on the night attendant and demanded the money. He further testified that he and the defendant were captured together early on the morning of the robbery. He identified a sawed-off shotgun found in the wreckage and engraved “Ray” (the defendant’s nickname) as belonging to the defendant. Barry Tripp testified that he did not remember the robbery as he was asleep in the back seat until awakened when hit in the leg by a gun shortly after the car left the Palomar. He was however, able to place the defendant on the passenger’s side of the car, where Fincher testified the gunman was sitting. Thereafter, he remembered the chase, the crash, and running into the woods.

The juvenile testified that he traveled in the car with the others to the Palomar Hotel. He, like Barry Tripp, stated he did not 'remember the facts surrounding the robbery, but he did remember that Eddy Dye drove and the defendant sat in the passenger’s seat. He remembered that when he alighted from the car and began to run he noticed money strewn on the ground from a brown paper bag. He identified a shirt found wrapped around the license plate of the red Volkswagen as his.

The testimony of all of these principals correlates with the other evidence in the case — to include the circumstances of the robbery, the flight and the apprehension— in such a fashion as to make it apparent that even when the offending evidence is excised that a reasonable doubt as to the guilt of the defendant is not created.

Thus, in summary, we find that the prosecutor’s pre-trial conduct was improper; but the non-disclosure of the facts surrounding the photographic showing pri- or to trial, when weighed against the other substantial evidence of defendant’s guilt, is not fatal to this conviction. Given the overwhelming evidence of defendant’s identity as a participant in this crime, i.e., his co-defendant’s testimony, the presence of his shotgun in the wrecked car, and his apprehension with his co-defendant near the crash site, we cannot find that the non-disclosure impaired defendant’s ability to properly assess the strength of the State’s case against him, nor did it impair his ability to prepare a defense. Additionally, the jury was apprised of all the circumstances which surrounded the victim’s pre-trial viewing of the defendant’s photograph. Moreover, we are unconvinced that mistrial is the only appropriate remedy when the defense is surprised by undisclosed evidence. Neither a continuance, nor a recess, nor an admonition was requested by defense counsel. See State v. Arnaud, 412 So.2d 1013 (La.1982). Since defendant was not prejudiced by the non-disclosure of this evidence, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment of error, defendant complains that the trial judge should have granted a mistrial after Barry Tripp, when asked how long he had known the defendant, testified that he met defendant “in a training institute.” Defendant claims that this comment was an impermissible reference to his previous incarceration as a juvenile offender. Following the denial of the motion, the judge admonished the witness to answer the questions responsively. Defense counsel made no request for a jury admonition.

When a remark or comment is made by a witness which is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the mind of the jury, upon request of the defendant, the Court shall promptly admonish the jury to disregard the remark or comment made during the trial. In such a case, on motion of the defendant, the Court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. LSA-C. Cr.P. Art. 771. A mistrial is a drastic remedy and should be declared only when unnecessary prejudice results to the accused; the determination of whether prejudice has resulted lies within the sound discretion of the trial judge. State v. Smith, supra.

In State v. Adams, 394 So.2d 1204 (La.1981), the Supreme Court upheld the trial court’s denial of a mistrial based upon a witness’ statements that he had lived with the victim up until the defendant got out of “rehab.” Noting the ambiguous nature of the response, the Court concluded that there was no substantiation of defendant’s claim that the term “rehab” referred to or was understood by the jury to refer to prior criminal conduct.

As in Adams, the words “training institute” are ambiguous and can be interpreted to refer to an educational or vocational institution, and do not necessarily refer to a juvenile detention center. Further, unsolicited and unresponsive testimony is not chargeable against the State to provide grounds for reversal of a conviction. State v. Michel, 422 So.2d 1115 (La.1982). The trial judge did not abuse his discretion in this instance. This assignment of error is meritless.

ASSIGNMENT OF ERROR NO. 8

Defendant claims that his sentence to twenty-five years at hard labor for the armed robbery was excessive. Defendant is specifically concerned with the disparity in his sentence as compared to his co-defendants.

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974, Art. 1, § 20 if the sentence is grossly out of proportion to the severity of the offense, or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983).

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La. App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

When imposing sentence in the instant case, the trial judge took into consideration the fact that the defendant was the ring leader of the group who perpetrated this crime. The trial judge also noted that the evidence tended to show that the defendant was the man who held the shotgun on the victim and was the man who obtained the money. The trial judge further noted that the defendant had prior convictions for burglary and possession of marijuana. The trial judge expressly found that there was an undue risk that if a suspended sentence was imposed the defendant would commit another crime. Finally, the trial judge stated that in light of the seriousness of the crime, a sentence of 25 years at hard labor without benefit of parole, probation or suspension of sentence was warranted. According to the judge, a harsher sentence would have been imposed but for the hope of defendant’s becoming a useful member of society.

The defendant contends that his sentence is nothing more than purposeless imposition of pain and suffering because it makes no measurable contribution to acceptable goals of punishment because his accomplices received relatively light sentences of four and one-half years each. The law is well-settled that the sentencing judge is not required to treat co-defendants equally. State v. Rogers, 405 So.2d 829 (La.1981); State v. Kline, 427 So.2d 1298 (La.App. 2d Cir.1983). The disparity of sentences between co-defendants is only a factor to be considered along with all other appropriate considerations. State v. Quimby, 419 So.2d 951 (La.1982). The record in this case shows that there is ample justification for the disparity in sentences between the principals to this crime. As mentioned before, the evidence showed that the defendant was the ring leader of the group when the crime was perpetrated. The other co-defendants also did not participate equally in the crime. The record shows that one co-defendant was a juvenile, another was unconscious while the crime was perpetrated, and the third co-defendant merely drove the getaway vehicle at the direction of the defendant. Finally, the record reflects that the defendant had a substantially more significant criminal record than his co-defendants. This assignment of error lacks merit.

ASSIGNMENTS NO. 1, 2, 5, 6, 7

These assignments of error were not briefed nor argued. They are considered abandoned. State v. Wright, 445 So.2d 1198 (La.1984).

For the above stated reasons the conviction and sentence of Donald Ray McLeland are affirmed.

AFFIRMED.

      . Defendant’s discovery motion reads in part: "5.
      Defendant requests the Court to order the District Attorney to inform the defendant of the existence of any books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof which are within the possession, custody, or control of the State, and which:
      a.Are favorable to the defendant and which are material and relevant to the issue of guilt or punishment; or
      b. Are intended for use by the State as evidence at the trial; or
      c. Were obtained from or belong to the defendant; and to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce any of the above items.”
      A similar request was held to be a general request for Brady material in State v. Johnson, 426 So.2d 95 (La.1983).


author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Willie Williamson KELLY, Defendant-Appellant.
    No. 16317-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Dec. 7,1984.

      Wright and Parker by Daniel P. Parker, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Johnny Parkerson, Dist. Atty., Robert S. Kennedy, Jr., Asst. Dist. Atty., for appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   PRICE, Judge.

Defendant appeals his conviction of Aggravated Crimes Against Nature, La.R.S. 14:89.1 and has made numerous assignments of error. We find no merit in any of the assignments and affirm the conviction for the reasons assigned.

FACTS:

Defendant is accused of forcing his six-year-old granddaughter to perform fellatio on him. The child’s mother, defendant’s daughter-in-law, testified at trial that she noticed severe behavioral changes in her daughter, then five years old, in October 1982. Upon questioning, the child indicated the defendant had been engaging in sexual behavior with her.

Ms. Kelly further testified that when she confronted the defendant about the matter, he denied the allegation and said the child had told him her mother was sexually abusing her. Not knowing whom to believe, Ms. Kelly sought, and received, assurances from her husband, from whom she was separated at the time, that her daughter would not be left alone with the defendant at any time.

In February 1983, again in response to her mother’s questioning, the child indicated she had been left alone with the grandfather at times during visitations with her father and the sexual abuse had continued. At this point, during a time when her daughter was supposed to be staying with her father, Ms. Kelly contacted the district attorney’s office and made a statement regarding the matter. She then went to her ex-husband’s house to pick up the little girl, but found she was at defendant’s home. She picked her up there and drove directly to the sheriff’s office.

During the drive Ms. Kelly asked the child if she remembered the previous discussion about her grandfather, and she replied that she did. During that conversation, she indicated that the same type of incident had occurred just a while before. When her mother tried to elicit a more specific time reference, the child repeated that it had happened just a while ago and pointed back towards the defendant’s home.

The little girl was subsequently placed in the foster care of Brenda Erwin through the Child Protection Agency. At the suggestion of agency personnel, Erwin had ordered a set of anatomically perfect dolls, male and female, for the emotional treatment of the child. The mother borrowed the dolls when custody was returned to her. Ms. Kelly testified that during a discussion with the little girl some two or three weeks before trial, she voluntarily brought the dolls to her mother and demonstrated what the defendant did to her. She placed the female doll on its back and placed the male doll on top of it. She pulled the pants down on the male doll and pulled the dress up and the pants down on the female doll. She then placed the penis of the male doll in the mouth of the female doll, and placed the hand of the male doll at the vagina of the female doll. She also had the male doll play with the breasts of the female doll.

After a competency examination of the child by the trial court outside the presence of the jury, she was placed on the witness stand and reaffirmed the testimony given by her mother, using the dolls to demonstrate to the jury what the defendant had done to her.

Dr. Meade O’Boyle, a pediatrician in Monroe, testified at trial that she had examined the child on February 25, 1983. According to her testimony, the child had a profuse vaginal discharge and redness and slight swelling of her vagina, although her hymen was intact. Dr. O’Boyle testified that the condition revealed by the physical examination was consistent with that of a child who has been sexually abused.

The defendant testified in his own behalf and denied the charges against him. The remainder of his defense consisted primarily of a number of character witnesses.

On rebuttal, the state introduced the testimony of two male foster children who had lived in the home of the defendant five years ago. Both boys testified that while they were staying in his home the defendant forced them to perform various sexual acts similar to those described by the complainant in this case.

The jury found the defendant guilty as charged by a vote of 11 to 1.

ASSIGNMENTS OF ERROR:

1) The trial court erred in allowing the testimony of the child’s mother to be heard by the jury when such testimony was hearsay, and where the State had failed to establish a corpus delec-ti.
2) The trial court erred in allowing the testimony of the child’s mother regarding any statements made at the district attorney’s office where said statements were not subsequently introduced into evidence and said testimony laying a foundation for said statements merely prejudiced the jury.
3) The trial court erred in finding that the six-year-old child was competent to testify considering the contradictory nature of her answers during its interrogation and considering her age and the number of times she was educated in how the State desired her to testify.
4) The trial court erred in allowing the child to testify where the DA promised her that after said testimony she could go home and she had been educated several times as to what testimony the prosecution desired.
5) The trial court erred in failing to grant defendant’s motion for mistrial considering that the child’s testimony was so prejudicial that a mere admonition to the jury could not suffice to remedy the damage of inadmissible testimony.
6) The trial court erred in allowing Officer Richard Medares to testify regarding the arrest of the defendant herein, where such testimony served no purpose other than to prejudice the jurors.
7) The trial court erred in allowing the state to call David Kelly as its witness, where the State failed to sound his name at the beginning of the trial.
8) The trial court erred in sustaining the state’s objection to hearsay testimony of the child’s father as to what the child told him where the Court had previously allowed the mother’s testimony regarding statements by the child. >
9) The trial court erred in allowing the state to present testimony regarding prior acts of the defendant on rebuttal, where there was no showing that defendant had ever been accused or convicted of molesting any children in the past, and no proper foundation had been laid for that testimony.
10)The trial court erred in allowing the testimony of the two foster children where they failed to identify the defendant as the same Mr. Kelly that they lived with several years prior to their testimony and where no corroborating evidence was offered to place them in his residence at that time.

ASSIGNMENT NO. 1:

By this assignment of error, the defendant asserts that the statements made by the child to her mother during their ride from the defendant’s home to the Sheriff’s Office constituted hearsay evidence, and thus were inadmissible. The defendant contends that the judge erred in overruling his hearsay objections, and that the testimony was clearly hearsay because it was offered to show the truth of the matters asserted therein and its value rested upon the credibility of the out-of-court asserter. The defendant further contends that the testimony does not come within the res gestae exception to the hearsay rule under the provisions of LSA-R.S. 15:447 and LSA-R.S. 15:448.

The Louisiana Supreme Court has long recognized an exception to the hearsay rule allowing admission of early complaints of rape victims. At times, the Supreme Court has characterized these first complaints of rape victims as constituting res gestae exceptions to the hearsay rule. See State v. Middlebrook, 409 So.2d 588 (La.1982); State v. Adams, 394 So.2d 1204 (La.1981); State v. Brown, 302 So.2d 290 (La.1974). In other cases, the Supreme Court has referred to such statements simply as early complaints of rape victims and ruled that they were admissible as such. See State v. Middlebrook, supra; State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Elzie, 351 So.2d 1174 (La.1977).

Additionally, the Supreme Court has previously recognized that in prosecutions for sex offenses the rule is that the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that it was a product of the shocking episode and not a fabrication. State v. Adams, supra; State v. Pace, 301 So.2d 323 (La.1974); State v. Noble, 342 So.2d 170 (La.1977). In Noble, the prosecutrix was a four year old child who made statements identifying the perpetrator to her grandmother a full two days after the offense. The statement was held admissible because the circumstances indicated that the statement was made at the first opportunity the child had to speak to a close family member.

In State v. Adams, supra, there was a lapse of approximately eight to ten hours between the offense and the victim’s statement. The Court in Adams noted that the record reflected that the victim’s statement was the first complaint by the child concerning the perpetrator of the rape. The Court also noted that it was the first opportunity for the child to state the person who was responsible for the injury and that there was no indication in the record that the child’s statement was a product of a fabrication.

In the instant case, the record reflects that the statement made by the victim to her mother on the way to the Sheriff’s Office had occurred within a short period of time from the sexual battery committed by the defendant. Ms. Kelly specifically testified that her daughter had told her that it had occurred “just a while ago.” She also noted that the little girl was very upset from the occurrence and the examination by the doctor who testified at trial also indicated that the child’s physical condition was consistent with sexual abuse. The evidence does not indicate in any way that the child’s account of the incident could possibly have been a fabrication considering her age.

Therefore, we find that the hearsay statements admitted by the trial court were admissible as res gestae statements or as the special hearsay exception for sexually abused children. This assignment of error is without merit.

ASSIGNMENT NO. 2:

By this assignment of error, the defendant asserts that the trial court erred in allowing questions of Ms. Kelly regarding statements made by her at the district attorney’s and sheriff’s office. We find this assignment of error to be without merit since there were no contemporaneous objections as required by La.C.Cr.P. Art. 841.

ASSIGNMENT NO. 3:

The defendant also contends that the trial court erred in finding that the six-year-old prosecutrix was competent to testify.

LSA-R.S. 15:469 provides as follows:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

When the State called the victim to testify at the trial, the trial judge retired the jury and conducted a competency hearing pursuant to LSA-R.S. 15:469 out of the jury’s presence. The child was sworn and examined by the Court, the State, and the defendant. The victim indicated her age, what school she went to, and her teacher at school. She indicated to the Court that she understood this was a very serious matter and that she had to tell the truth. She further testified that she knew what it meant to tell the truth and what it meant to tell a lie and that she understood the importance of telling the truth in court. Based upon this testimony, the trial court ruled that the child was competent to testify.

The determination of the trial judge that a child witness is competent to testify is based upon the child’s answers to questions testing her understanding and on the child’s overall demeanor on the witness stand. State v. Humphrey, 412 So.2d 507 (La.1981). The determination of a trial judge, as to whether or not a child has the required sufficient understanding, is entitled to great weight because the trial judge has the advantage of seeing and hearing the witness. State v. Edwards, 420 So.2d 663 (La.1982); State v. Edwards, 419 So.2d 881 (La.1982); State v. Skipper, 387 So.2d 592 (La.1980). The trial judge has great discretion in determining the competency of a child witness, and his ruling will not be disturbed unless testimony brought up shows that the ruling was manifestly erroneous. State v. Arnaud, 412 So.2d 1013 (La.1982). The testimony of the child at the competency hearing clearly showed that she had sufficient understanding to be a witness. This conclusion is reinforced by the child’s testimony before the jury. Therefore, we find that the ruling of the trial judge determining that the six year old victim was competent to testify is correct.

This assignment of error is without merit.

ASSIGNMENT NO. 4:

The defendant further urges that the trial court erred in allowing the prosecution to pose leading questions to the prosecu-trix.

A leading question is ordinarily prohibited when propounded to one’s own witness, unless such witness is unwilling or hostile. LSA-R.S. 15:277. However, an exception is usually made when questioning a young child. In State v. Francis, 337 So.2d 487 (La.1976) the Supreme Court noted that a trial judge, when the need appears, will ordinarily permit leading questions to children, or to witnesses so ignorant, timid, weak-minded, or deficient in the English language, that they cannot otherwise be brought to understand what information is sought. It is recognized, especially as to children, that in these cases the danger of false suggestion is at its highest, but it is better to face that danger than to abandon altogether the effort to bring out what the witness knows.

Francis was cited in State v. Bolton, 408 So.2d 250 (La.1982), wherein the Supreme Court further noted that notwithstanding the general rule against leading questions, the matter is largely within the discretion of the trial court and in the absence of palpable abuse of that discretion resulting in prejudice to the accused, a finding of reversible error is not warranted, citing State v. Fallon, 290 So.2d 273 (La.1974); and State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925).

In the present case, the victim was five years old at the time of the crime and six years old at the time of the trial. A review of the questions propounded to her does not reveal that they were overly suggestive. The record also reflects that the child was extremely timid and did not wish to discuss the occurrence. Considering the child’s age and the subject matter, it is understandable that she was unable to answer questions which were not leading. Therefore, the trial court correctly allowed leading questions of the child victim.

This assignment of error lacks merit. ASSIGNMENT NO. 5:

By this assignment, defendant contends that it was error for the trial court to allow the victim to affirmatively indicate that she had been similarly abused by the defendant on other occasions prior to the one under discussion at trial. He urges that this testimony was improper because it constitutes evidence of other crimes and was elicited by a leading question. He moved for a mistrial on these grounds, and now contends the trial court’s denial of that motion was in error.

Evidence of other crimes related to the offense with which a defendant is charged is inadmissible unless it fits with certain special exceptions. State v. Acliese, 403 So.2d 665 (La.1981). Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana statutes provide for three exceptions—acts relevant to show intent, knowledge or system. La. R.S. 15:445, and La.R.S. 15:446. Louisiana Courts have also recognized certain other exceptions including the admissibility of prior sex crimes committed against the same prosecutrix. State v. Acliese, supra; State v. Morgan, 296 So.2d 286 (La.1974).

Additionally, the State served notice on the defendant in its answer to motion for discovery that it intended to offer evidence of prior sex crimes committed by the defendant upon the victim under the authority of La.R.S. 15:445 and 15:446. Therefore, the trial court correctly denied defendant’s motion for mistrial.

As previously discussed in assignment of error no. 4, this Court has determined that leading questions of children are proper and admissible. Therefore, the defendant’s objection concerning the leading nature of the State’s question is without merit.

ASSIGNMENT NO. 6:

The defendant also urges that the trial court erred in allowing the State to question Officer Richard Medares concerning defendant’s arrest. He contends this testimony was irrelevant and the state sought to prejudice defendant by showing that the individual on trial was arrested by an officer of the law, implying to the jury that he was guilty. Therefore, the defendant asserts that this action violated the provisions of Art. I, § 16 of the Louisiana Constitution of 1974 guaranteeing each individual the right to an impartial trial.

At trial, after defense counsel objected to the testimony of Officer Medares on the basis that the evidence was irrelevant to the present case, the State indicated that it had no further questions of the witness and defense counsel did not cross-examine. The testimony of Officer Medares basically consisted of the fact that he was the arresting officer and that he had given the defendant Miranda warnings. Because of the minimal amount of testimony before objection, we fail to see that defendant sustained any substantial prejudice even if the testimony was irrelevant.

There is no merit to this assignment.

ASSIGNMENT NO. 7:

This assignment of error has not been briefed and thus will be considered abandoned.

ASSIGNMENT OF ERROR NO. 8:

By this assignment of error, the defend.ant asserts that the trial court erred in sustaining the State’s objection to hearsay testimony by the father of the victim as to what she had told him, while allowing the mother’s hearsay testimony regarding the child’s statements to her.

As indicated in assignment of error no. 1, the Supreme Court has previously recognized that in prosecutions of sex offenses, the rule is that the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that it was a product of the shocking espisode and not a fabrication. State v. Adams, supra; State v. Pace, supra; State v. Noble, supra. The statements made to the victim’s father were clearly not the original complaint of the young child and therefore do not meet the exception provided by these cases. When the father was asked if he made an investigation after being informed of the child’s accusation against defendant by the mother, he stated that he asked the child about it. The court sustained the state’s objection to the question being answered on the basis that it would be hearsay.

Defendant does not argue that this testimony was offered to show prior inconsistent statements of the victim nor was any attempt made to lay a foundation for such a purpose. Therefore, the trial court correctly excluded this testimony.

ASSIGNMENTS OF ERROR NUMBERS 9 AND 10

These final assignments of error concern the admission of rebuttal testimony showing prior acts of sexual abuse of young children by the defendant. The defendant contends the testimony of the two foster children constituted improper rebuttal.

Rebuttal evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party. La.R.S. 15:282. State v. Huizar, 414 So.2d 741 (La.1982); State v. Constantine, 364 So.2d 1011 (La.1978). Such evidence may be used to strengthen the state’s original case. State v. Huizar, supra; State v. Howard, 120 La. 311, 45 So. 260 (1908). The determination of whether evidence is rebuttal evidence and hence, admissible, is an issue which is addressed to the sound discretion of the trial judge. State, v. Huizar, supra; State v. Green, 390 So.2d 1253 (La.1980).

In response to direct examination by defense .counsel, defendant asserted that he had never sexually molested anyone. The testimony of the defendant, in pertinent part, was as follows:

Q. But its your testimony here today under oath that you never have sexually molested your granddaughter?
A. Did she testify today—
Q. I am saying its your testimony under oath and before God that you’ve never sexually molested your granddaughter?
A. As God as my judge and soon coming King, I have never — never touched any of my children, none of them, or anyone else’s. That’s what you want?

Immediately on cross-examination the defendant was again asked if he had ever molested anyone’s children. The defendant’s statement is as follows:

Q. Mr. Kelly, let me go back to the last thing you said. You say that you’ve never molested anyone’s children?
A. Never one, no one.

After the defendant’s testimony, the state adduced testimony in rebuttal from the two former foster children of the defendant to contradict his statement that he had never molested anyone’s children. The trial court determined that the evidence was admissible on the basis that the defendant had “opened the door” to such evidence by his statement at the end of his testimony on direct examination that he had never sexually molested anyone.

The prosecution has the right to rebut the evidence adduced by the defendant. La.R.S. 15:282. However, this right is not unlimited in scope. The general rules of evidence also have application to determine the proper scope of cross-examination and rebuttal testimony. State v. Constantine, supra. The evidence must be relevant to a material issue in dispute. Matters which are logically relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses. State v. Herman, 358 So.2d 1282 (La.1978); State v. Moore, 278 So.2d 781 (La.1973).

Generally, evidence of other acts of misconduct is not admissible. The introduction of such evidence merely to prove that the defendant is a “bad man” involves constitutional problems because of the danger that a defendant might be tried for a charge of which he has had no notice, for which he is unprepared, and which unfairly prejudices him in the eyes of the jury. State v. Kahey, 436 So.2d 475 (La.1983); State v. Goza, 408 So.2d 1349 (La.1982); State v. Prieur, 277 So.2d 126 (La.1973).

An exception to the general rule of inadmissibility may exist where the state seeks to introduce evidence of other crimes for some substantially relevant purpose other than to show that the defendant is guilty because he is a man of general criminal character. State v. Harris, 383 So.2d 1 (La.1980); State v. Sutfield, 354 So.2d 1334 (La.1978). Once a determination is made that the other crimes evidence is presented for a substantially relevant purpose, the court then has the obligation to balance the probative value of the evidence against its prejudicial effect before the evidence can be admitted. State v. Germain, 433 So.2d 110 (La.1983); State v. Humphrey, 412 So.2d 507 (La.1982).

In the present case, the defendant placed the question of any prior acts of sexual misconduct with persons other than the victim at issue by his assertive statement on direct examination that he had never molested anyone. Contradiction is one means of rebutting the testimony of a witness. State v. Banks, 307 So.2d 594 (La.1975). Thus, since the evidence presented by the defendant is subject to rebuttal by the state, and the defendant himself opened up the issue of his prior sexual history, the testimony regarding pri- or misconduct presented on rebuttal was clearly relevant. In weighing the probative value of this testimony against its prejudicial effect, we find that the boys’ testimony was presented for the substantially relevant purpose of disproving a voluntary self-serving assertion by the defendant. This value outweighs whatever prejudicial effect the evidence had upon the defendant’s case. We therefore discern no merit to these assignments of error.

For the foregoing reasons, the conviction is affirmed.

AFFIRMED.


text:
    Arvin Douglas MORGAN, Plaintiff-Appellee, v. WILLIS-KNIGHTON MEDICAL CENTER, Defendant-Appellant.
    No. 16387-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.

      Watson, Blanche, Wilson & Posner by Todd A. Rossi, Baton Rouge, for defendant-appellant.
    Edmund M. Thomas, Shreveport, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff filed suit for injuries to his right ulnar nerve which were allegedly sustained when he was anesthetized for surgery. The trial court granted judgment in plaintiffs favor in the amount of $95,472.93. We affirm.

Plaintiff in this cause is Arvin Douglas Morgan, a 56 year old Shreveport resident. Mr. Morgan is employed by Ford Motor Company as a territorial field manager who oversees the sale of parts and service. Defendant is Willis-Knighton Medical Center, a Louisiana corporation which owns and operates a Shreveport hospital.

Subsequent to the onset of bleeding in the urinary tract in the fall of 1980, the plaintiff was hospitalized in the defendant institution on October 8, 1980. The following day a cystoscopic examination under a general anesthetic revealed a tumor on the bladder. The tumor was surgically removed by Dr. Tommy Mook, a local urologist, under a general anesthetic on October 10, 1980.

Plaintiffs anesthetic was administered by registered nurse-anesthetist Robert Kelly. At trial Dr. Mook and Robert Kelly possessed little recollection of this specific procedure but did testify as to the standard procedures generally utilized in the surgical procedure employed on the plaintiff. This testimony established that the type operating table which was used is that which is normally utilized in natal deliveries to allow the surgeon to operate while standing between plaintiffs legs.

Plaintiff’s left arm was placed on and supported by a narrow leaf or platform which extended outward from the operating table in an angle perpendicular to plaintiffs body during surgery. Plaintiffs left arm was placed on this extended platform to facilitate the placement of the IV in that arm. Plaintiffs right arm was allowed to rest, unpadded, on the operating table, parallel and adjacent to his body. The surface of the operating table upon which plaintiffs surgery was performed was equipped with approximately one and a half inch of padding. However, there was no protective padding on the vertical, metal edge or side of the operating table which descended from the table’s upper surface.

Plaintiff testified upon regaining consciousness subsequent to surgery that

I woke up with a stinging sensation in my arm and hand and my mouth and it felt like I had gone to sleep with my hand underneath my head and it was asleep and I was trying to* shake it loose and of course, it wouldn’t go.

Plaintiff’s daughter, Patricia Morgan Price, verified that, shortly after regaining consciousness and in the presence of his family and friends, Mr. Morgan complained to a nurse of pain in his right arm. Ms. Price further testified that the plaintiff directly informed members of his family of his difficulty with his right arm, relating that his right hand “was tingling ... like it was ... asleep[,] ... [that] it was hurting,” and that “[h]is arm felt real heavy.” Plaintiff’s friend Jeffrey Clement testified that the plaintiff complained of pain in his arm, when Mr. Clement briefly visited him shortly after his operation. Plaintiff’s close acquaintance James Silvio testified that plaintiff complained to him of pain in his right hand and arm on the day of the operation, shortly after surgery, while Mr. Morgan was still groggy from the effects of the anesthetic. Mr. Silvio further confirmed that the plaintiff “complained about his [right] arm continuously after the operation.”

Another acquaintance of plaintiff, Mary Skaggs, visited plaintiff at the hospital shortly after surgery. Ms. Skaggs testified that plaintiff “said the only complaint that he had was that he had numbness in his arm. He was flexing his hand and said his hand was numb.”

On October 28, 1980, two weeks after discharge from Willis-Knighton, plaintiff was examined by his surgeon, Dr. Tommy Mook. Plaintiff at that time was suffering from a painful tingling sensation in his right arm and hand that had begun at the completion of his surgery. Dr. Mook told plaintiff that he (Dr. Mook) thought that the plaintiff had suffered damage to the ulnar nerve of his right arm, and referred plaintiff to a Dr. Waddell. The ulnar nerve runs the length of the arm, along the “ulnar groove” in the elbow, to the hand, supplying the hand with motor and sensory functions. Dr. Waddell agreed with Dr. Mook’s diagnosis of a damaged ulnar nerve, and'referred plaintiff to Dr. Wallace Brown for further testing. Dr. Brown conducted electromyograph (EMG) tests on plaintiff’s elbow. These tests confirmed that plaintiff had a damaged ulnar nerve in his right arm, and that the burning, stinging sensation in plaintiff’s right arm was a direct result of the ulnar nerve damage. Plaintiff subsequently consulted with Drs. Dienst and Boykin about his arm, and submitted to further EMG testing by Dr. Brown. Dr. Boykin, a neurosurgeon, told plaintiff, after the second battery of EMG tests, that surgery would be required to remedy plaintiff’s condition.

Plaintiff was admitted to Schumpert Medical Center in Shreveport on August 17, 1981, operated on by Dr. Boykin on August 18, and discharged from hospitalization on August 21, 1981. The purpose of the operation, as Dr. Boykin succinctly stated it, was to “put the [ulnar] nerve in a different position so that he would not continue to traumatize it everytime that he flexed his arm at the elbow.” Plaintiff’s sutures were removed, following this surgical procedure, on August 26, 1981.

Plaintiff filed suit on October 8, 1982, alleging that the ulnar nerve of his right arm had been damaged during the surgical removal of his bladder tumor in October of 1980, while plaintiff was sedated under general anesthesia. In a judgment rendered October 26, 1983, the trial court awarded judgment in plaintiff’s favor and against the defendant in the amount of $95,472.93. In its well-written reasons for judgment, the trial court found that the doctrine of res ipsa loquitur applied to defendant’s acts and omissions. The trial court thus concluded that defendant was negligent and civilly liable for the injury to the ulnar nerve in plaintiff’s right arm. The trial court’s award included a $50,000 sum for general damages, $40,000 for lost future income, $2,653.63 for lost past income, and $2,819.30 in special damages for the expenses incurred by plaintiff in obtaining medical treatment for the injury to his right ulnar nerve.

The defendant presents two basic contentions on appeal. In its first assignment, the defendant contends that the trial court erred in finding it negligent and liable for plaintiffs injuries. In its second assignment, defendant contends that the trial court erred in awarding excessive damages.

I.

LIABILITY

Because plaintiff was anesthetized and unconscious at the time of his injuries, he was therefore compelled, in asserting his claims, to rely on the tort doctrine of res ipsa loquitur.

Res ipsa loquitur is not a substantive legal tenet, but rather an eviden-tiary doctrine under which a tort claim may be proved by circumstantial evidence. Smith v. International Paper Co., 299 So.2d 437 (La.App. 2d Cir.1974), writ denied, 302 So.2d 310 (La.1974). This eviden-tiary doctrine is applicable where defendant has actual control of the agency, instrumentality or conditions which caused plaintiffs injuries; the evidence as to the true cause of plaintiffs loss is more readily accessible to defendant than plaintiff; and the accident is of a kind that does not occur in the absence of negligence and/or the circumstances attending the accident create an inference of negligence on the part of defendant. Langlinais v. Geophysical Service, Inc., 111 So.2d 781 (La.1959); Northwestern Mutual Fire Ass’n v. Allain, 226 La. 788, 77 So.2d 395 (1954); Dorman v. T. Smith & Son, 223 La. 29, 64 So.2d 833 (1953); Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.App. 1st Cir. 1981), writ denied, 404 So.2d 277 (La.1981). Under the principle of res ipsa loquitur, the defendant’s negligence is inferred because, under the facts shown, the inference that defendant’s negligence caused plaintiffs harm is probable and more plausible than any other explanation propounded. See Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). It is crucial to note that, where the doctrine of res ipsa loquitur is properly applicable, the plaintiff need not establish the exact manner in which he was injured, or the precise act or event which precipitated his injury. Bou-dreaux, supra.

It should be noted, however, that the principle of res ipsa loquitur does not dispense with the requirement that the plaintiff prove negligence by a preponderance. This principle merely modifies the process of proof. A plaintiff relying on the res ipsa loquitur doctrine must accordingly prove circumstances which create an inference of negligence on the part of defendants. Parr v. D.H. Holmes Co., Ltd., 311 So.2d 463 (La.App. 4th Cir.1975). This places upon the defendant the burden of going forward with proof to nullify that inference. However, this inference must be weighed with all other proof in determining whether the plaintiff has satisfied the required evidentiary burden of a preponderance of the evidence. Boudreaux, supra; Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Alexander v. St. Paul Fire & Marine Ins. Co., 312 So.2d 139 (La.App. 1st Cir.1975), writ denied, 313 So.2d 846 (La.1975).

The medical testimony leaves no doubt as to the actual existence of the injury to plaintiff’s right ulnar nerve. It is therefore necessary to determine whether the res ipsa loquitur doctrine was correctly utilized by the trial court in ascertaining that the defendant, Willis-Knighton Medical Center, caused plaintiff’s injuries.

It is clear, in the first instance, that defendant’s personnel had actual control of the instrumentalities, conditions and circumstances which caused plaintiff’s injuries. The medical testimony adduced clearly established that the Willis-Knighton employee, nurse anesthetist Robert Kelly, had medical responsibility for the care, protection and supervision of the plaintiff for the entire time that he was under general anesthetic. Expert anesthesiologist Dr. Jack Collins testified that

The anesthetist is responsible for the protection and care of that patient and has an obligation to protect the patient during the course of the anesthetic against all incidents which might occur during that time.

Mr. Morgan was anesthetized and therefore unable to control or direct his own movements or actions, or to protect himself. The anesthetist and the surgical staff possessed sole control over the movement, positioning and protection of the plaintiff while under the anesthetic. Dr. Collins testified that the need for extraordinary precaution is obvious with respect to anesthetized subjects, since a patient’s ordinary protective responses are deactivated by general anesthesia.

It is further clear, in the second instance, that the evidence as to the true cause of plaintiff’s injury is more readily accessible to defendant than plaintiff for the obvious reason that plaintiff was anesthetized and unconscious while the events which precipitated his injury transpired. In this sense, the facts of this cause constitute a classic object for the application of the res ipsa loquitur doctrine.

It appears, moreover, that the injuries to plaintiff’s ulnar nerve are of a kind that do not ordinarily occur in the absence of negligence. The medical testimony established that ulnar injuries are normally caused by the undue pressure or by being struck with hard or solid objects. We feel it is reasonable to conclude, as did the trial court, that plaintiff’s injury would not have occurred without undue pressure on, or a direct blow to, the ulnar nerve. We further find reasonable the conclusion that the most probable cause of undue pressure or excessive impacts would be improper placement, positioning or moving of the plaintiff, lack of protective padding; or an inadvertent blow to the ulnar nerve.

The fact that plaintiff’s injury occurred in an anatomical region (right arm) which was not operated on further supports the inference that his injury was of the kind that would not have occurred absent negligence. See McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973); Holloway v. Southern Baptist Hospital, 367 So.2d 871 (La.App. 4th Cir.1978). Furthermore, it appears that absolutely no padding was placed on the right arm of plaintiff to protect his ulnar nerve. Plaintiff introduced into evidence the medical text entitled Anesthesia by Ronald D. Miller, M.D. Dr. Miller acknowledges therein that an arm extended on a platform during surgery at a right angle to the body — such as is ordinarily the case with the arm into which the IV is inserted — may not require padding. However, Mr. Miller states that special precautions are required with respect to the arm which is allowed to lay adjacent and parallel to the patient’s body during surgery. In the absence of padding and securing of the arm, the elbow may hang over the edge of the operating table during surgery, thereby sustaining a pressure-induced injury to the ulnar nerve. Anesthesia, supra, at 111. Dr. Miller’s text notes that the correct way to protect the ulnar nerve is with padding and that it is medically incorrect to fail to do so. Anesthesia, supra, at 111. Dr. Collins stated in this vein that injuries to the ulnar nerve during surgery are foreseeable, and that the proper method of protecting against this foreseeable injury is to “use padded arm boards and also pad the arms to protect the ulnar nerve where it passes around the medial epicondyle of the humerus.”

It is true that plaintiff may not avail himself of the res ipsa loquitur doctrine where the hypothesis that plaintiff’s injuries were not caused by defendant’s negligence is equally plausible as the postulate that plaintiff’s injuries were caused by defendant’s negligence. Aetna Casualty & Surety Co. v. Rothman, 331 So.2d 81 (La.App. 1st Cir.1976). However, the testimony adduced at trial clearly established that plaintiff experienced no difficulty with his arm prior to his surgery on October 9, and that the onset of pain and disability occurred concurrently with plaintiff’s awakening from the effects of the general anesthetic administered him. The injured arm was not the subject of the operation, or any other medical treatment. Moreover, the plaintiff showed that strict care, including padding of the arm, was necessary to protect the arm and the ulnar nerve therein during an operation of this type. It therefore follows that plaintiffs injuries were caused by events while he was under general anesthetic as a result of inadvertent acts or omissions which constitute negligence. Plaintiff thus has preponderantly established that his injuries are the kind that would not normally occur in the absence of negligence, and that the application of the doctrine of res ipsa loquitur is appropriate in this cause.

Defendant’s primary defense consisted of the testimony of seven medical aides at Willis-Knighton who testified that they did not recall having received any complaints of arm pain from plaintiff during his period of hospitalization. However, the trial court specifically addressed the testimony of Willis-Knighton’s medical aides, weighed it against the affirmative testimony of plaintiff’s witnesses that Arvin Morgan made specific complaints about arm pain, and concluded that the plaintiff’s testimony in this respect was more persuasive. The trial court clearly stated, in this connection, that:

(T)he Defendant produced the testimony of the nurses and aids who assisted Plaintiff while he was in the hospital. Each of these staff members testified they did not remember Mr. Morgan making any complaints about pain or difficulty in his arm, and that had he made those complaints they would have noted them in his chart and reported the complaints to his physician....
The testimony given by [plaintiff’s witnesses] Mr. Morgan, Mrs. Morgan, Mrs. Price, Ms. Skaggs, Mr. Silvio and Mr. Clements was clear, specific, affirmative, and, most importantly, credible. After listening to the testimony of those witnesses we were impressed with their sincerity, credibility and veracity. This Court does not believe that they would have testified falsely about Mr. Morgan’s complaints of pain and discomfort in his arm immediately after surgery if those complaints had not been made. We conclude that their testimony is accurate and that the witnesses who testified for the Defendant were simply mistaken in their recollection of the events.

In light of the compelling circumstantial and direct evidence of plaintiff, the trial court’s .rejection of the defense evidence is not clearly wrong and will not be disturbed by us. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We therefore concur in the trial court’s application to this cause the doctrine of res ipsa loquitur and agree that the defendant is liable for plaintiff’s injuries.

II.

GENERAL DAMAGES

The defendant does not challenge the damages awarded the plaintiff for past medical expenses and loss of past earnings, but rather contests the $50,000 award for general damages, and the $40,000 for loss of future earnings.

Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion in making the award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir. 1978). Moreover, the appellate function in reviewing quantum is limited to raising inadequate awards to the lowest amount the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, supra; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir.1982); Greene v. Wright, supra. In the final analysis, the damages due in a given case must reflect the facts and circumstances of that case. Alexander v. Leger, supra; Wilkinson v. Hartford Accident & Indemnity Co., 421 So.2d 440 (La.App. 3d Cir.1982); Profit v. Linn, 346 So.2d 253 (La.App. 1st Cir.1977).

General damages are those which may not be fixed with pecuniary exactitude; they instead involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitively measured in monetary terms. Boswell v. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

The general damages sustained by plaintiff in this cause are a function of his physical impairment, his pain and suffering, and the resultant restriction of his lifestyle.

Dr. Edward Krusin, Department Chief of Baylor University Medical Center and pioneer in the use of electromyographs, examined plaintiff in December of 1982 after surgery was performed on him in August of 1981 to repair the ulnar nerve. Dr. Krusin testified that plaintiffs ulnar nerve injury has resulted in decreased sensation in the little finger and ring finger of the right hand, and an atrophying of the muscles of the right forearm. Dr. Krusin also noted that plaintiff was suffering from causalgia, or a painful condition normally associated with partial nerve damage. Although Dr. Krusin noted that causalgia has a tendency to improve over time, he acknowledged that there was a significant possibility that the pain in plaintiff’s right arm would not disappear. Dr. Krusin assigned plaintiff a 27% disability of the right arm, and a 16% impairment of the body as a whole.

Plaintiffs job as a territorial field manager for Ford Motor Company entails hundreds of miles of driving each week, and his injury causes great discomfort to him while driving. Plaintiff cannot grip items such as lawnmowers, and his treating physician testified that plaintiffs writing has lapsed into virtual illegibility due to the injury. Plaintiff has been forced to abandon his thirty year avocation of repairing and building clocks.

The effects of plaintiffs injury are exacerbated as a result of a serious left shoulder injury sustained while playing college football. Plaintiff therefore has some impairment in both upper extremities and suffers from an understandable sleeplessness and upset caused by the pain and discomfort, a condition which was still requiring medication at the time of trial.

Based on pain, functional impairment and modification of lifestyle caused by the injury to plaintiffs right ulnar nerve, we conclude that the trial court did not err in awarding plaintiff $50,000 in general damages.

III.

LOST FUTURE INCOME

Awards for loss of future income are inherently speculative, and are intrinsically insusceptible of being calculated with mathematical certainty. Thus, the courts must exercise sound judicial discretion in determining these awards, and render awards which are consistent with the record and which work an injustice on neither party. Robinson v. Graves, 343 So.2d 147 (La.1977); Edwards v. Sims, 294 So.2d 611 (La.App.1974); Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); Holmes v. Texaco, Inc., 422 So.2d 1302 (La.App. 5th Cir.1982); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Payton v. Travelers Ins. Co., 373 So.2d 1324 (La.App. 4th Cir.1979).

A number of factors must be analyzed in determining loss of future income, including the plaintiffs physical condition before and after his injury; his past work record and the consistency thereof; the amount plaintiff probably would have earned absent the injury complained of; and the probability he would have continued to earn wages over the balance of his working life. Viator v. Gilbert, supra; Payton v. Travelers Ins. Co., supra. It is well established that a loss of future income award is not merely predicated upon the difference between a plaintiffs earnings before and after a disability injury. Such an award is predicated, more strictly considered, upon the difference between a plaintiffs earning capacity before and after a disabling injury. Folse v. Fakouri, 371 So.2d 1120 (La.1979); Ward v. Louisiana & Arkansas Railway Co., 451 So.2d 597 (La.App. 2d Cir.1984); Green v. Farmers Ins. Co., 412 So.2d 1136 (La.App. 2d Cir.1982); Hill v. Sills, 404 So.2d 1323 (La. App. 2d Cir.1981). Loss of future income awards thus encompass the loss of a plaintiffs earning potential —the loss or reduction of a persons’ capability to do that for which he is equipped by nature, training, and experience, and for which he may receive recompense. Coco v. Winston Industries, Inc., supra; Naylor v. La. Dept, of Public Highways, 423 So.2d 674 (La.App. 1st Cir.1982); Mizell v. State, ‘Through La. Dept, of Highways, 398 So.2d 1136 (La.App. 1st Cir.1980); Falcon v. Bigelow-Liptak Corp., 356 So.2d 507 (La.App. 1st Cir.1977). In computing loss of future income, it is first necessary to determine whether and for how long a plaintiffs disability will prevent him from engaging in work of the same or similar kind to that he was doing at the time of his injury; it is necessary to ascertain whether he has been disabled from work for which he is fitted by training and experience. Viator v. Gilbert, supra.

Plaintiff was not prevented by his ulnar nerve injury from returning to his job as field manager for Ford Motor Company. However, his injury irreparably damaged the motor, sensory and gripping functions essential to clock making and clock repair. Plaintiff presented evidence that he had been engaged in an active and lucrative sideline of clock making and repair, learning this trade from his uncle as a youth; that he was skilled at said trade; that he had abandoned this avocation at the direct request of Ford Motor Company in 1962; that he had fully anticipated resuming this trade upon retiring from Ford at the age of 62; and that he anticipated pursuing this avocation on a part-time basis to generate retirement income. Plaintiff also presented expert testimony by a rehabilitation specialist, Dr. Richard Galloway, that he could be expected to pursue this trade for ten years subsequent to retirement from Ford Motor Company given his work-life expectancy. There was also testimony from economist Terrance Clauretie that, assuming part-time involvement and the earnings generally generated by clock repairmen, plaintiff could expect to earn upwards of $100,000 in post-retirement income through clock manufacturing and repair.

Assessing this evidence along with that presented by defendant, it is clear to this court that the trial court did not abuse its vast discretion in determining that plaintiff was legally entitled to $40,000 representing lost future income.

For the foregoing reasons, the trial court’s determination under the doctrine of res ipsa loquitur that the defendant is liable to plaintiff, and its award of $95,472.93, is in all respects affirmed, with judicial interest from the time of legal demand. All costs are assessed to defendant-appellant, Willis-Knighton Medical Center.

AFFIRMED.

      . Edited by Ronald D. Miller, M.D., Vol. 1 (Churchill Livingstone, 1981).


author: CRAIN, Judge.

text:
    Don J. BABIN v. Keith EDWARDS, et al.
    No. 83 CA 0890.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 22, 1984.
    Writ Denied Nov. 16,1984.

      William J. Dodd, Dodd & Picou and Robert Picou, Houma, for plaintiff, Don J. Ba-bin.
    Jerry H. Schwab, Schwab & Butler, Hou-ma, for plaintiff, Lawrence Lacy.
    Owen M. Goudeloeke, Lafayette, for defendants and appellants.
    Leonpold B. Babin, Houma, for interve-nor-appellant, Home Insurance Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment by the trial court in a personal injury suit in favor of plaintiffs, Don J. Babin and Lawrence Lacy, and against defendants, Michael Le-Bouef, Fletcher Wallace, Ernie Pinel and Home Insurance Company.

FACTS

In his written reasons for judgment, the trial judge made the following findings of facts.

Plaintiffs, Don J. Babin and Lawrence Lacy were injured in an industrial accident on January 22, 1980. Don J. Babin was employed by Acadian Shipyards, Inc. as a fitter and Lawrence Lacy was also employed by Acadian Shipyards, Inc. as a tacker.
On January 22, 1980, they were working together to tack off the front plate of a barge that was being constructed at Acadian Shipyard. The plate was a sheet of metal 7' x 24' x ’Vis" and weighing 2635.65 pounds. The plate was suspended perpendicular to the deck by a crane and a single-chain “come along” from the center line bulkhead to the plate as well as a double-chain “come along” from the plate to the bottom of the barge.
The crane is hooked to a strutter bar, i.e. a piece of pipe, 15-20 feet long, by connecting cables from the crane with cables attached to the strutter bar. The strutter bar has two sheet clamps located on each end of the strutter bar. These clamps are then connected to the steel plate to enable the crane to lift the plate. Once the plate is lifted into place by the crane, “come alongs” are placed on the sheet to help secure it in place. The “come alongs” are attached to the plate with padeyes. A padeye is a small piece of metal with a hole in it that is welded to the plate. The “come-alongs” are then attached to the padeyes.
In this case, the double chain “come-along” broke, leaving the plate suspended by the crane and the single-chain “come along”. The failure of the double chain “come-along” caused the plate to shake, wobble, and make loud noises. The double chain “come along” was then replaced by plaintiffs.
After the new double-chain “come along” was in place, Mr. Babin’s immediate supervisor, Mike LeBoeuf, decided to remove the crane, leaving the plate supported only by the “come alongs”. Don Babin protested the removal of the crane to Mike LeBoeuf. Mr. Babin testified that he told Mr. LeBoeuf that it was not safe to remove the crane. Despite the warnings of Don Babin, the crane was removed on the orders of Mike LeBoeuf. Within minutes of the removal of the crane, the “come alongs” failed and the plate fell, causing severe injuries to Don Babin and Lawrence Lacy.
As a result of this accident, Don Babin and Lawrence Lacy each filed a suit for damages against Acadian Shipyards, Inc. and some of its executive officers; namely, Keith Edwards, George Mayes, III, Dale Smith, Fletcher Wallace, James Pate, Ernie Pinel, Donald Dominque, and Mike LeBoeuf. After both suits were filed, they were consolidated for the purposes of trial.
An intervention was filed by Home Insurance Company, the workmen’s compensation insurer for Acadian Shipyards seeking recovery for the amounts which it paid to plaintiffs under the workmen’s compensation statute.

After trial on the merits, the trial judge held in favor of the plaintiffs and against defendants, Michael LeBouef, Fletcher Wallace, Ernie Pinel and Home Insurance Company, and dismissed the other claims. Home Insurance Company was granted reimbursement for worker’s compensation benefits paid.

The court awarded plaintiff, Don Babin, the total sum of $4,342,304.40 against the defendants named above, in solido. Plaintiff, Lawrence Lacy, was awarded the sum of $580,774.54 against the same defendants.

The trial judge dismissed plaintiffs’ demands against defendants, Edwards, Mayes and Smith in light of a joint stipulation by the parties at the outset of trial that they were not at the work site, had no day-to-day control over the operations there, and that they were simply principals in the holding company which owned Acadi-an Shipyards, Inc. The trial court also dismissed plaintiffs’ demands against defendants, Pate and Dominque, on the ground that neither “had responsibility for supervision of Michael LeBouef (the foreman) at the time of this accident.”

On the intervention claims of the Home Insurance Company, the court rendered judgment against plaintiff, Babin, in the amounts of $34,100.54 (compensation paid) and $75,651.95 (medical benefits paid); and against plaintiff, Lacy, in the amounts of $8,991.63 (compensation paid) and $37,-294.54 (medical benefits paid). These were the amounts stipulated in a post-trial stipulation of April 11, 1983.

The trial judge also fixed and taxed as costs the expert witness fees of two witnesses (Dr. Goodman, an economist, $350.00 and Mr. Starns, $500.00), and then assessed all costs of the proceedings against the defendants.

From that judgment, each of the defendants appeal, arguing four assignments of error. Defendants’ first and second assignments of error take issue with the trial judge’s interpretation and application of the “intentional act” exception to the otherwise exclusive worker’s compensation remedy under La.R.S. 23:1032. Our disposition of these first two assignments of error makes it unnecessary for us to discuss the merits of those remaining.

INTENTIONAL ACT EXCEPTION

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

The rights and remedies herein granted to an employee ... on account of an injury ..., shall be exclusive of all other rights and remedies ... against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal...
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act. (Our emphasis).

Prior to the amendment in 1976, the absence of a prohibition against tort suits against co-employees allowed injured workers to seek tort recovery from negligent executive officers and their liability insurers. The “executive officer” suits became a major loophole in the law, and in an effort to close that avenue of recovery, the legislature adopted Act 147 of 1976. However, the legislature chose to make the exclusive remedy rule contained in La.R.S. 23:1032 inapplicable to an “intentional act.” The phrase “intentional act” was finally agreed on by the legislature after rejection of amendments which would have expanded the exclusive remedy exception to instances of “deliberate” acts or “gross negligence.” Official Journal of the Proceedings of the House of the State of Louisiana, 2d Reg.Sess. at 21 (June 4, 1976); Official Journal of the Proceedings of the Senate of the State of Louisiana, 2d Reg. Sess. at 41, 42 (July 12, 1976).

Since the amendment went into effect, “[ajlmost without exception, a narrow interpretation [of the intentional act exclusion] has been adopted. Such an interpretation is consistent not only with the policy of the Act, but also with the legislative history of the 1976 amendments.” Johnson, Developments in the Law, 1980-1981 —Workers’ Compensation, 42 La.L.Rev. 620, 630.

Although uniformally unsuccessful, litigation has been spawned by the case of Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981), where the Louisiana Supreme Court, adopting the definition of intent found in the Restatement of Torts, 2d, American Law Institute, Sec. 2 (1965), found that in order to find an intentional act, the person who acted either (1) consciously desired the physical result of his act; or (2) knew that the result was substantially certain to follow. This remains the jurisprudential interpretation of proof of “intentional act”. Fallo v. Tuboscope Inspection, 444 So.2d 621 (La.1984).

The meaning of the first standard-conscious desire-is clear. However, the alternative test for finding an intentional act has caused confusion because it has been presented as an alternative to an intentional act rather than a method of proving an intentional act. We adopt the reasoning found in the following exerpt from Johnson, 42 La.L.Rev. at 632, 633:

The traditional definition is simply a way of relieving the claimant of the difficulty of trying to establish subjective state of mind (desiring the consequences) if he can show substantial certainty that the consequences will follow the act. The latter takes the case out of the realm of possibility or risk (which are negligence terms), and expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts. If the actor throws a bomb into an office occupied by two persons, but swears that he only ‘intended’ to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire.

In sum, in order to avoid the exclusive remedy of worker’s compensation, a defendant must act with an intent to injure the plaintiff. This intent can be shown either by proving the defendant acted with a desire to harm plaintiff or by proving that defendant acted with knowledge of facts that from his act plaintiff’s injury was substantially certain to result. Fallo, 444 So.2d at 622. “Substantially certain” is not an alternative to “intentional act”. It is a method of proving that the act was intentional. Fallo makes it clear that this is the correct interpretation of La.R.S. 23:1032.

PROOF OF INTENT TO INJURE

The plaintiffs never argued, nor is there any evidence that Mike LeBoeuf consciously or actively desired to injure the plaintiffs. Therefore, the issue is whether the evidence shows that Mike LeBouef intended to injure the plaintiffs because he acted with the knowledge that the plaintiffs’ injuries were substantially certain to follow from his actions.

Nowhere in the trial judge’s reasons for judgment does he state that he found that Mike LeBouef actually intended to injure Don Babin or Lawrence Lacy. He does not suggest that LeBouef held any malice towards either. While he does use language indicating that he found that Mike LeBouef believed that it was substantially certain that the plate would fall, he also uses the following language:

To put it another way, the issue before the Court is whether when defendant, Mike LeBouef, acted he knew or should have known that plaintiffs would certainly be injured by the fall of the plate. This is the test which the Court must apply to the facts of this case. (Our emphasis).

The trial judge also mentions in detail his reliance on the testimony of plaintiff’s expert, Marion I. Starns, III, stating that, “Mr. Starns was unequivocally of the opinion that Michael LeBouef should have known that the steel plate was substantially certain to fall upon the removal of the crane.” (Our emphasis). The use of this test was clear error. Fallo, 444 So.2d at 621.

After examining the record, we find that the closest anyone comes to testifying that Mike LeBouef intended to injure the plaintiffs, is contained in the following self-serving testimony of Don Babin under cross examination:

Q. All right. Now what I’m asking you now is: Do you believe that he wanted you hurt, and if so, I want to know why? If your answer is yes, I want to know why.
A. Yes.
Q. All right then, why? Why did he want you hurt?
A. There’s any number of reasons.
Q. Well, I want to know the reasons. I want to know all of them. You can number them 1 through 20.
A. Well, we disagreed quite a bit and he always wanted to have it done his way. (2) He — let me see how I can put this. He was always more or less a a company man. He wanted it done right then and there. In other words, he would let you know he was the boss and no matter what you said against him, he was the boss. You knew he was going to chew your behind out one way or another if you didn’t do exactly what he said.
* * * * * *
Q. Have you told us as much as you can tell us about why you think Mike wanted you hurt?
A. All I’ve got to say is, he rode me a lot. I mean, I don’t know_ I don’t know if he thought much of me as a fitter or what the deal was, but he rode me a hell of a lot, if you’ll pardon the expression. And that’s the best way I could answer that.

We do not find the fact that Don Babin had disagreements with his boss, even disagreements over safety precautions such as the one involving the removal of the crane on the day in question, proof that Mike LeBouef removed that crane with the intent to injure the plaintiffs. This conclusion is strengthened by the fact that there is testimony in the record which places LeBouef in front of the same sheet of metal at least for some period of time before and after the crane was removed. A person is presumed to act in such a manner as will not necessarily expose himself to physical harm. Manning v. Better Way Coatings, Inc., 448 So.2d 227 (La.App. 1st Cir.1984); Lipscomb v. News Star World Pub. Corporation, 5 So.2d 41 (La.App. 2d Cir.1941).

For the foregoing reasons, we find the proof insufficient to show that Mike LeBouef intended to injure the plaintiffs in this case. It does not show he actively desired to injure the plaintiffs, nor that he was substantially certain that the steel plate would fall when he removed the crane. We, therefore, reverse the judgment of the trial court in its entirety in this suit and assign all costs to the plaintiff.

REVERSED AND RENDERED.

      . Fallo states that, “There is not the slightest suggestion in this record that any co-employee acted with an intent to injure the plaintiff, either by acting with a desire to harm him or by acting with the knowledge that his injury was substantially certain to result from the act.” 444 So.2d at 621-622. (Our emphasis)


text:
    Lawrence LACY v. Keith EDWARDS, et al.
    No. 83 CA 0891.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 22, 1984.
    Writ Denied Nov. 16, 1984.
    Jerry H. Schwab, Schwab & Butler, Hou-ma, for plaintiff, Lawrence Lacy.
    Owen M. Goudelocke, Lafayette, for defendants, Michael LeBoeuf, Fletcher Wallace, Ernie Pinel and Home Insurance Co.
    Leonpold B. Babin, Houma, for interve-nor-appellant Home Insurance Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment by the trial court in a personal injury suit in favor of plaintiffs, Don J. Babin and Lawrence Lacy, and against defendants, Michael Le-Bouef, Fletcher Wallace, Ernie Pinel and Home Insurance Company.

A complete factual summary and analysis of this appeal is contained in our opinion in a related suit, Babin v. Edwards, 456 So.2d 659 (La.App.1984). For the reasons assigned in that opinion, we reverse the judgment of the trial court in this appeal. All costs are to be paid by the plaintiff.

REVERSED AND RENDERED.