author: MARCUS, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. George J. DOWD.
    No. 82-B-2940.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pee’, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, for relator.
    Roy A. Raspan ti, New Orleans, for respondent.
   MARCUS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against George J. Dowd, a member of said association. The committee conducted an investigation of respondent’s alleged misconduct in accordance with article 15, section 3 of the articles of incorporation of the association. The committee by certified mail dated July 9, 1982 sent respondent notice of four separate specifications of misconduct which would be heard at a formal investigatory hearing to be held on July 15, 1982. Although respondent signed the receipt for the certified letter, he did not appear at the investigatory hearing held on the scheduled date; nor was he represented by counsel.

Based on the evidence adduced at the formal investigatory hearing, the committee, by a majority vote, was of the opinion that respondent had been guilty of a violation of the laws of this state relating to the professional conduct of lawyers and to the practice of law of sufficient gravity as to evidence a lack of moral fitness for the practice of law; that, specifically, respondent was guilty of the misconduct set forth in Specifications Nos. 1 and 2.

Specification No. 1 alleged:

In April of 1975, you were retained by B.G. Gaffney, Attorney at Law, to handle certain collection matters and that, despite repeated requests, you have failed, refused and neglected to advise Mr. Gaffney of the status of pending litigation, all in violation of Disciplinary Rule 6-101(A)(3)|) of the Code of Professional Responsibility for this Association and, further, you failed, refused and neglected to take any action to protect the interest of your clients all in violation of said DR 6-101(A)(3).

Specification No. 2 alleged:

In 1978, you were retained by Sharon Ragas Giroir to represent her in a claim for Workman’s Compensation. That, despite repeated requests, you have failed, refused and neglected to take necessary action to protect the interest of your client causing her injury and damage. You have also failed, refused and neglected to advise your client of the status of her claim or release necessary file material to her when requested. All in violation of Disciplinary Rules 1-10211 and 6-101(A)(3) of the Code of Professional Responsibility for this Association.

The committee felt it had not proven the other two specifications of misconduct and deleted those charges when it filed a petition for disciplinary action against respondent in this court on December 21, 1982 under the provisions of article 15, section 4(c) of the articles of incorporation. Respondent filed an answer to the petition. Thereafter, on motion by the committee, we appointed Paul V. Cassisa commissioner to take evidence and to report to this court his findings of fact and conclusions of law. Louisiana State Bar Association Articles of Incorporation art. 15, § 6(b), (d).

A hearing before the commissioner was conducted on April 27, 1983. Respondent appeared at the hearing without counsel, whose presence was waived by respondent. The committee introduced in evidence, without objection, the entire record of the earlier investigatory hearing. Upon termination of the hearing, the commissioner filed with this court his written report wherein he stated his findings of fact and conclusions of law and recommended a one-year suspension from the practice of law as the appropriate disciplinary action. The committee filed its concurrence in the commissioner’s findings of fact and conclusions of law and submitted the matter for this court’s determination. Respondent filed exceptions to the commissioner’s report. After oral argument before this court, the matter was submitted for our determination on the record before the commissioner.

The bar association has the burden of establishing by clear and convincing evidence that respondent was guilty of the alleged specifications of misconduct. Louisiana State Bar Association v. Mitchell, 375 So.2d 1350 (La.1979).

Specification No. 1 concerns the failure of respondent, whose office was located in St. Bernard Parish, to obtain judgments on two matters referred to him in April of 1975 by B.G. Gaffney, a Houston attorney. The first case was a collection matter involving $690 allegedly owed on account by Otis D. Martin to Johnston Testers, Inc. Respondent filed suit against Martin in Plaquemines Parish on July 11, 1975. Martin denied liability, claiming that he had paid the money owed. Nevertheless, respondent attempted to go to trial and obtained several trial dates. The first trial date, February 18, 1976, was continued because the case was scheduled second on the docket and was not reached by the trial judge. However, Mr. Gaffney also was unable to get a witness to trial on that date. Mr. Martin’s attorney was unavailable on the second trial date, May 24, 1976. Another trial date was set for September 9, 1976, but the record does not reveal why the parties did not go to trial on this date. Throughout this period, respondent corresponded with Mr. Gaffney, keeping him informed of the status of the case. In a letter dated July 15, 1976, respondent indicated that he was having difficulty deposing Mr. Martin, who had twice cancelled scheduled depositions. In another letter to Mr. Gaffney dated July 14, 1977, respondent said that the trial judge had promised to set another trial date to coincide with the trial of the other matter referred to respondent by Mr. Gaffney. The record does not reveal whether this date was set. Apparently this was the last action taken by respondent on the Johnston case, which is still a viable case according to respondent.

The second matter referred to respondent by Mr. Gaffney is a suit for the value of a piece of oilfield equipment rented to Otis D. Martin by Houston Engineers, Inc. Houston Engineers alleged that the piece of equipment, which they valued at $5,876.76, was rented to Mr. Martin and was never returned. Mr. Martin contended that, in accordance with established business practices, he returned the item by delivering the equipment to the dock for Houston Engineers’ pickup. Respondent filed suit in this matter in Plaquemines Parish on July 11, 1975 and again obtained many pretrial conference and trial dates that were subsequently continued. The first trial date was November 9, 1976. Again, the record does not reveal why the parties did not go to trial on that date, but the trial was rescheduled for December 6, 1977. However, the trial judge continued the trial because he was ill. Respondent wrote to the judge several times to have the trial date reset, and the judge finally scheduled a pretrial conference for September 8, 1978. Respondent had kept Mr. Gaffney informed of all action in the file up to July 18, 1978, which was the date of his last letter to Mr. Gaffney. This apparently was also the last action taken in the matter by respondent. According to respondent, the case is still viable.

Mr. Gaffney wrote a number of letters and made a telephone call to respondent between the dates of September 20, 1978 and April 15, 1980 seeking information on the status of the two cases. Respondent did not answer any of the communications, so Mr. Gaffney filed a complaint with the Louisiana State Bar Association on May 21, 1980. On December 2, 1980, respondent met with Mr. Deas of the bar association to discuss the complaint against him. Although he maintained that Martin was unavailable and without property, respondent promised to obtain “the judgment” but never fulfilled the promise. The bar association proceeded with disciplinary action against respondent. At the commissioner’s hearing, respondent admitted that he was “wrong on two counts.” First, he said he “should have sent Mr. Gaffney his file back a ... long time ago.” Second, he should have “taken a judgment even though [the cases were] uncollectable.” The commissioner in his findings of fact concluded that “it seems clear from the evidence that nothing was done by Dowd to complete these matters by trial and/or some ultimate settlement, nor did he advise Mr. Gaffney that he was no longer in a position to prosecute these collection matters and that these suits should be referred to others for appropriate handling.” In his exceptions to the commissioner’s report, respondent argues in his defense that Mr. Gaffney and his two clients suffered no damage besides delay in the two cases because the suits are still “viable” and that Mr. Gaffney could have gotten another attorney to complete the handling of the matters but had not done so. Hence, he contends, no disciplinary sanctions should be imposed for his mere procrastination.

Specification No. 2 involves respondent’s failure to file a worker’s compensation claim for Mrs. Sharon Ragas Giroir who injured her hand while working part-time at K-Mart. Mrs. Giroir was injured on January 27, 1977 and received compensation payments from K-Mart from February 12, 1977 to April 7, 1978. After other treatments did not relieve the pain in Mrs. Giroir’s hand, her doctor recommended surgery. Although a second doctor recommended by K-Mart advised that no operation was necessary, Mrs. Giroir did undergo surgery on January 12, 1978 and was discharged from her doctor’s care on June 26, 1978 with a five percent permanent disability assigned to her wrist and hand. K-Mart refused to pay for the operation and discontinued compensation payments three months after the surgery. All but $359.40 of the hospital bill was paid by Mr. Giroir’s hospitalization insurance. The Gir-oirs retained respondent to pursue Mrs. Giroir’s compensation claims for further benefits and reimbursement of medical costs.

The parties do not agree as to when respondent was retained in this matter. Mrs. Giroir recalls contacting respondent before entering the hospital in January of 1978. She says she brought respondent her records in the case around February of 1978. Mr. Giroir also testified that they retained respondent before his wife’s operation in January of 1978. Respondent does not remember being contacted in this matter until Mrs. Giroir received a demand letter from the hospital on January 18, 1979. However, the parties saw each other frequently during this period because respondent was defending the Giroirs in a civil rights violation case which was not resolved until April 17, 1979.

More importantly, the testimony of the Giroirs and respondent differs on whether respondent told the Giroirs he filed the compensation suit or said he would not file the suit until they advanced court costs. Respondent was not paid his fees for defending the Giroirs in the civil rights suit; nor was he reimbursed for the court costs he advanced them. Respondent also was not paid for representing Mr. Giroir’s brother in his divorce although respondent claims that Mr. Giroir assured him that he would “see that” respondent was paid. Thus, because of these prior experiences with the Giroirs, respondent maintains that he told them in April or May of 1979 that he would not file suit unless he were given the court costs in advance. Respondent says he did not put this demand into writing because he frequently saw the Giroirs in his office regarding the civil rights suit.

The Giroirs, on the other hand, assert that, in the period from the time they retained respondent until sometime in 1979, respondent repeatedly assured them that he had filed the compensation suit and was awaiting a settlement check from K-Mart. Both Mr. and Mrs. Giroir specifically recall seeing respondent in Schwegmann’s and being told that he filed suit. Mr. Giroir also testified that he asked respondent to return the file, but respondent did not comply. Mrs. Giroir alleged that respondent never asked her to advance the court costs because he told her that K-Mart had to pay them under the worker’s compensation laws. Respondent, however, denies ever telling the Giroirs that he filed suit. He says he probably told them in Schweg-mann’s that he had filed a motion in the civil rights case, not the compensation case. The Giroirs filed a complaint with the Louisiana State Bar Association in February of 1981 after they discovered that respondent had not filed suit. They testified that they were pursuing a malpractice action against respondent, but respondent’s attorney in oral argument before this court stated that no suit has been filed.

The Commissioner in his findings of fact concluded that, “[wjhile the evidence is conflicting, the preponderance of the evidence is that Dowd represented to both Mr. and Mrs. Giroir that suit had been filed on their behalf against K-Mart.” As to respondent’s claim that he told the Giroirs he would not file suit until he received court costs, the commissioner observed, “Dowd has no correspondence or any invoice to the clients which would corroborate his posi-tion_ To the contrary, both Mr. and Mrs. Giroir testify that they were repeatedly assured by Dowd that the suit had been filed.”

Respondent does not deny that he never filed Mrs. Giroir’s worker’s compensation claim and that the claim is now prescribed. Nor does he deny his failure to obtain judgments in the two matters referred to him by Mr. Gaffney. Respondent says he ignored his law practice because of marital difficulties and completely closed his office in September of 1979 when he separated from his wife. He moved to Poydras, Louisiana and “didn’t do anything for about a year” because of emotional trauma. He argues in mitigation of the charges against him that there are no allegations of dishonesty or of misappropriation of clients’ funds. The clients referred to him by Mr. Gaffney did not even suffer any damage as a result of his inaction. Furthermore, he points out that the committee must establish his guilt by clear and convincing evidence, but the commissioner did not meet this burden in his finding by a mere preponderance of the evidence that respondent told the Giroirs that suit had been filed. Nor did the commissioner find by clear and convincing evidence that respondent did not tell the Giroirs that he required the court costs before he would file suits.

The purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the Code of Professional Responsibility. Louisiana State Bar Association v. Bubert, 421 So.2d 831 (La.1982). The discipline to be imposed will depend upon the seriousness of the offense involved and the facts and circumstances of each case. The court will take into account both aggravating and mitigating circumstances. Id.

In regard to Specification No. 1, we find that, although respondent’s procrastination and failure to communicate with Mr. Gaffney constituted conduct unbecoming to the practice of law, we cannot go so far as to hold that such inactivity was a violation of DR 6-101(A)(3). Respondent did file both suits and attempted to go to trial on many occasions. His admitted failure to obtain judgments, viewed in light of his insistence that such judgments would be uncollectable, is a matter of poor legal judgment rather than an instance of the neglect of a legal matter entrusted to him. Hence, no disciplinary action is appropriate.

However, as to Specification No. 2, we find that respondent was guilty of a violation of DR 6-101(A)(3) in permitting Mrs. Giroir’s compensation claim to prescribe. Respondent defends himself by arguing that he told the Giroirs he would not file the suit until they advanced court costs. He corroborates this claim by showing that the Giroirs already owed him money from previous matters. However, because of the lack of written documentation, we are unable to say that respondent prevailed in this defense. Thus, respondent was at fault in permitting the suit to prescribe.

Nevertheless, we recognize that there are many mitigating factors in this case. Respondent is correct in his assertion that the commissioner failed to meet his burden of proof of finding by clear and convincing evidence that respondent told the Giroirs he had filed suit. Nor does the record support such a finding of fact. Thus, we find that respondent was not guilty of any dishonesty in this matter. Respondent also did not accept any fees from the clients in connection with this matter. Nor does it appear that respondent previously has been charged with unprofessional conduct. Hence, we find at most only a technical violation of DR 6 — 101(A)(3) under this specification and conclude that an official public reprimand is the appropriate disciplinary action for respondent’s conduct in this matter.

DECREE

For the reasons assigned, it is ordered that Specification No. 1 be dismissed. It is further ordered that George J. Dowd be and is hereby publicly reprimanded for his conduct in connection with Specification No. 2. Respondent is to bear all costs of these proceedings.

      . Respondent asserts that he did not know that the hearing "was going on.” After the hearing, the bar association also sent respondent notice that he was given ten extra days in which to present a defense, but respondent did not timely reply.

      . DR 6-101. Failing to Act Competently (A) A lawyer shall not:

      (3)Neglect a legal matter entrusted to him.

      . DR 1-102. Misconduct.
      (A) A lawyer shall not:
      (1) Violate a Disciplinary Rule.
      (2) Circumvent a Disciplinary Rule through actions of another.
      (3) Engage in illegal conduct involving moral turpitude.
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.


source: Caselaw Access Project

license: Public Domain

text:
    A BETTER PLACE, INC. v. GIANI INVESTMENT COMPANY. A BETTER PLACE, INC. v. MOTWANE’S AMERICA, INC.
    No. 83-C-1298.
    Supreme Court of Louisiana.
    Jan. 16, 1984.

      C. Ellis Henican, Jr., Melanie Shaw, Hen-ican, James & Cleveland, New Orleans, for applicant.
    Frederick J. King, Jr., New Orleans, for respondent.
   MARCUS, Justice.

A Better Place, Inc. (ABP) brought separate suits against Giani Investment Company and Motwane’s America, Inc. to recover the balances due on open accounts for merchandise sold and delivered by ABP to defendants. Defendant companies are both retail outlets owned by Kishore Motwane. Defendants answered alleging illegality, failure of consideration, and an agreement with ABP’s president and owner, Timothy Hummel, for a refund credit. The suits were consolidated for trial. After trial on the merits, the trial judge rendered separate judgments in favor of ABP and against Giani in the amount of $14,887.05 together with $3,721.76 attorney fees and against Motwane’s .in the amount of $6,532.05 plus $1,633.01 attorney fees. The court of appeal affirmed. On application of defendants, we granted certiorari to review the correctness of that decision.

ABP is a manufacturer and wholesale distributor of gifts and souvenirs such as pipes, smoking accessories, snuff products, jewelry clip-ons, T-shirts and posters. Defendants have done business with ABP since 1976. On November 4, 1980, ABP sent a letter to its customers including defendants advising them that due to Louisiana’s recently passed “Drug Paraphernalia Act” it was removing from its inventory “any items other than legitimate tobacco and snuff accessories.” In a follow-up to this notice, on November 17 ABP sent Richard Fox, its salesman who serviced all of defendants’ accounts, to remove for full credit refund all merchandise which would be questionable under the law. The extent of this arrangement was disputed at trial: Hummel maintained that this return was a one time only business courtesy upon the passage of the new law, while Motwane claimed that the understanding was that refund credit would also be given in the future for any items which were later challenged by the authorities.

Between December 29, 1980 and January 20, 1981, ABP sold and delivered to both defendants essentially all of the merchandise involved in this litigation. On February 5, 1981, Motwane’s main store was raided by the New Orleans Police Department which seized goods pursuant to a search warrant for drug paraphernalia. An undetermined amount of the items seized were sold to defendants by ABP. The seized goods are still being held by the police. After the raid, defendants refused to pay the invoices from ABP. The present litigation ensued.

At the conclusion of the trial, the trial judge stated that “the whole question here to me is whether [ABP] had an agreement to take back what [ABP] gave [Motwane] and that’s all its going to be .... ” Then finding that plaintiff’s version of this agreement was the more likely one, he held in favor of ABP and against defendants.

The court of appeal, with one judge dissenting, rejected defendants’ argument that some of the items sold were contraband and thus the sales were unenforceable. Instead, that court held it could not find that the items sold were illegal drug paraphernalia because the record did not establish by criminal conviction or otherwise that “the requisite criminal intent necessary for the items to be labeled ‘drug paraphernalia’ ” existed. In reaching its conclusion, the court of appeal interpreted the statutory definition of drug paraphernalia to require concrete proof that the seller (ABP) intended that the items on the invoices would be used by the ultimate buyers with a controlled substance. We disagree.

Louisiana’s Drug Paraphernalia Act, La. R.S. 40:1031-1036, is an adaptation of the Model Drug Paraphernalia Act drafted by the United States Department of Justice and enacted in many states. This criminal act defines drug paraphernalia as “all equipment, products and materials of any kind which are used, intended for use, or designed for use ...” with a controlled substance. La.R.S. 40:1031(A)(1). The act goes on to list examples, including:

Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.
(b) Water pipes.
(c) Carburetion tubes and devices.
(d) Smoking and carburetion masks.
(e) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand.
(f) Miniature cocaine spoons, and cocaine vials.
(g) Chamber pipes.
(h) Carburetor pipes.
(i) Electric Pipes.
(j) Air-driven pipes.
(k) Chillums.
(i) Bongs.
(m) Ice pipes or chillers.

La.R.S. 40:1031(A)(I2). Twelve illustrative factors are also provided by the act for consideration in determining whether an object is drug paraphernalia. Finally, criminal liability is imposed when “any person or corporation, knowing the drug related nature of the object” sells, displays for sale, or uses with a controlled substance any drug paraphernalia.

This case only requires discussion of one aspect of this new act, which is the inclusion in its definition of illegal drug paraphernalia “objects ... designed for use” with a controlled substance. The United States Supreme Court interpreted this “designed for use” language in its unanimous 1982 opinion upholding a drug paraphernalia ordinance:

A principal meaning of “design” is “To fashion according to a plan.” Webster’s New International Dictionary of the English Language 707 (2d ed. 1957). It is therefore plain that the standard encompasses at least an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer. A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer. It is also sufficiently clear that items which are principally used for nondrug purposes, such as ordinary pipes, are not “designed for use” with illegal drugs.[]

One independent part of the definition of drug paraphernalia thus refers to the objective physical characteristics of items. It is significant that section 1031(A)(12) of the statute particularly enumerates some of the most common forms of drug paraphernalia. The legislative definition encompasses objects whose structural features are deemed inherently fashioned for use with illegal drugs, and the mental state implicated therein is absorbed into and reflected by the objective physical attributes of the finished products. Objects whose dominant function is to produce, package, store, test or use illicit drugs are considered “designed” for such use. Therefore, the proper resolution of this case requires an examination of the objective characteristics of the products listed in the invoices in light of factors such as those enumerated in section 1032 to determine whether these sales at least in part were of drug paraphernalia.

A finding that contraband items were included in these sales will result in no recovery for their prices. Under Louisiana’s Civil Code, a judicial demand for payment of obligations relating to objects which are illegal or contrary to public order or morals will not be entertained.

Art. 1891. The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined, not by the means or ability of the party to fulfill his agreement, but by the nature of the thing which forms the object of it.
Art. 1892. That is considered as morally impossible, which is forbidden by law, or contrary to morals. All contracts having such an object are void.
Art. 2448. Any effects of commerce may be sold, when there exists no particular law to prohibit the traffic thereof.[]

Louisiana jurisprudence is replete with cases which have treated contracts tainted with illegality in object or cause as null, void and of no effect. E.L. Burns Co. v. Cashio, 302 So.2d 297 (La.1974) (contract in contravention of prohibitory law setting prescription is null); Rosenblath v. Sanders, 150 La. 882, 91 So. 252 (1922) (lease for prostitution); Martin v. Seabaugh, 128 La. 442, 54 So. 935 (1911) (gambling partnership); Milne v. Davidson, 5 Mart. (N.S.) 409 (La.1827) (lease violating zoning for hospitals); Lamy v. Will, 140 So.2d 794 (La.App. 4th Cir.1962) (gambling); J.R. Watkins Co. v. Brown, 13 La.App. 244, 126 So. 587 (1930) (wholesaler cannot recover price in illegal drug sale). If the objects of these sales were drug paraphernalia, Louisiana courts will not enforce the contra bonos mores obligation to pay for the goods but instead will leave the parties where their own conduct placed them:

[b]ut judicial tribunals should not be called upon to adjust the balance of profit and loss between joint adventurers in iniquity.,.. The law, whose mission is to right the innocent and to enforce the performance of licit obligations only, leaves parties who traffic in forbidden things and then break faith with [each] other, to such mutual redress as their own standard of honor may award.

Boatner v. Yarborough, 12 La.Ann. 248, 251 (1857). Issues such as estoppel and unjust enrichment between the parties to contracts with illegal objects which violate prohibitory laws of public morals will not be considered. Cilluffa v. Monreale Realty Co., 209 La. 333, 24 So.2d 606 (1946); Davis v. Holbrook, 1 La.Ann. 176 (1846).

Nevertheless, the law presumes that men in their business transactions do not intend to violate the law or to make contracts for the enforcement of which the law refuses a remedy. Hence, when one party charges that the contract is illegal, the burden of proof is imposed upon him to establish this contention. Baucum & Kimball v. Garrett Mercantile Co., 188 La. 728, 178 So. 256 (1937). Thus, illegality is an affirmative defense and as with other affirmative defenses, the defendant who pleads it has the burden of proving it by a preponderance of the evidence. La.Code Civ.P. art. 1005; Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976); J.P. Barnett Co. v. Ludeau, 171 La. 21, 129 So. 655 (1930). The illegality need not be proven beyond a reasonable doubt to sustain the defense; rather defendants must clearly show that it is more probable than not that the objects of these sales contracts were illegal drug paraphernalia. Rist v. Commercial Union Ins. Co., 376 So.2d 113 (La.1979); Wilson v. Sawyer, 106 So.2d 831 (La.App. 2d Cir.1958); Tuckermann v. Jackson, 3 Orl.App. 399 (1906).

In this case, Motwane conceded receiving all the items that are on the signed invoices at their listed prices. However, the determinative question remains whether defendants met their burden of proving that some of the objects of the sales contracts upon which ABP’s suits on open accounts are based are illegal drug paraphernalia. We think that they have.

Defendants have shown that a significant part of the goods sold fall within the statutory definition of drug paraphernalia. Defendants produced ABP’s most recent catalog, which Hummel admitted advertised many of the prevailing merchandise codes for ABP’s products even if it was no longer all-inclusive. Furthermore, the deposition admitted in evidence at trial of Fox, who made all the sales in this dispute, covered the categories of merchandise sold by code numbers in detail. An examination of the invoice code numbers in light of this evidence readily reveals that a considerable part of these sales were of objects particularly listed by the legislature in the Drug Paraphernalia Act, such as water pipes, carburetion tubes and devices, roach clips and bongs. La.R.S. 40:1031(A)(12)(b), (c), (e), (h), (l). In the context of the products’ objective designs, the decorations directed toward marijuana use, ABP’s catalog, and the testimony of Fox, we conclude that some of these objects were designed for use with illegal drugs. See La.R.S. 40:1032(1), (8), (11).

While plaintiff makes much of the failure of defendants to prove which items from the sales were seized by the police, we consider this irrelevant. The issue for our determination under La.Civ.Code art. 1892 is whether the objects sold were drug paraphernalia and hence contraband. Criminal conviction or police action is not a prerequisite to this civil determination of the nature of these products. Commerce in objects designed for use with controlled substances has been prohibited by statute, and hence these products are no more proper objects for contracts and lawsuits than are illegal drugs themselves.

In sum, we find that defendants have clearly shown by a preponderance of the evidence that drug paraphernalia items were included in the accounts sued upon. However, both sides agree that these deliveries included legal products such as posters, buttons and incense, although they vary widely on the overall percentage. Indeed, the exact dollar value of these legal sales cannot be determined from the record. Some sales are valid, some invalid, and for many others the record lacks evidence of product design and other factors such as those listed in section 1032 needed for the court’s finding. Therefore, in the interest of justice and in order that a proper judgment may be rendered between the parties, the case will be remanded to the district court to permit defendants to prove which of the items are drug paraphernalia because the sales of those items are unenforceable. The district court will then be able to render a judgment enforcing only the sales of the remaining lawful items. La.Code Civ.P. art. 2082, 2164; Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959).

We note that while the courts below properly considered the running dealings here by which ABP stocked defendants’ stores to constitute open accounts, defendants will not be liable for attorney fees under La.R.S. 9:2781 as was originally awarded by the vacated judgments. This statute must be strictly construed, and it entitles a person seeking debt collection on an open account to recover reasonable attorney fees only if he sent written demand “correctly setting forth the amount owed.” Here ABP’s letters to defendants demanded amounts which included the prices for contraband drug paraphernalia for which no lawful obligation was owed. Thus, our decision rejecting part of ABP’s claim disentitles ABP to attorney fees. Fleet Tire Service v. Schwegmann Brothers, 408 So.2d 54 (La.App. 4th Cir.1981); Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3d Cir.1979).

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein. Costs of this appeal shall be paid by plaintiff. The assessment of other costs shall await the final determination of the litigation.

      . 432 So.2d 946 (La.App. 4th Cir.1983).

      . 437 So.2d 1145 (La.1983).

      .1980 La .Acts No. 669.

      . The sole exception was a delivery on February 27, 1981 of 500 Mardi Gras posters for $1,000 to Motwane's, represented by the last of the 115 invoice sheets sued on.

      . § 1032. Determination of drug paraphernalia
      In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other legally relevant factors, the following:
      (1) Statements by an owner or by anyone in control of the object concerning its use.
      (2) The proximity of the object, in time and space, to a direct violation of the Uniform Controlled Dangerous Substances Law.
      (3) The proximity of the object to controlled substances.

        (4) The existence of any residue of controlled substances on the object.
      (5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows or should reasonably know intend to use the object to facilitate a violation of the Uniform Controlled Dangerous Substances Law; the innocence of an owner, or of anyone in control of the object, as to a direct violation of the Uniform Controlled Dangerous Substances Law shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia.
      (6) Instructions, oral or written, provided with the object concerning its use.
      (7) Descriptive materials accompanying the object which explain or depict its use.
      (8) National and local advertising concerning its use.
      (9) The manner in which the object is displayed for sale.
      (10) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise.
      (11) The existence and scope of legitimate use for the object in the community.
      (12) Expert testimony concerning its use.

      .La.R.S. 40:1033, 1035. The act also provides for the condemnation and destruction of objects seized by the authorities if the state proves, by a preponderance of the evidence, that the seized items were distributed or possessed in violation of the law. La.R.S. 40:1036.

      . Although not before this court in this case, the constitutionality of Louisiana’s Drug Paraphernalia Act has been upheld. Tobacco Accessories and Novelty Craftsmen v. Treen, 681 F.2d 378 (5th Cir.1982). See also Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir.1982).

      . Hoffman Estates, supra, 455 U.S. at 501, 102 S.Ct. at 1194-95. The Court conducted its analysis under the stricter test appropriate to a quasi criminal or criminal law. Id. at 500, 102 S.Ct. at 1194.

      . For example, the Supreme Court in Hoffman considered "roach clip” to be a "technical term [which] has sufficiently clear meaning in the drug paraphernalia industry.” Hoffman Estates, supra, 455 U.S. at 501 n. 18, 102 S.Ct. at 1194 n. 18. See Comment to Article 1, Common Forms of Drug Paraphernalia, Model Drug Paraphernalia Act.

      . Hoffman Estates, supra, 455 U.S. at 501 n. 19, 102 S.Ct. at 1195 n. 19; Florida Businessmen, supra, at 1218-19.

      . See

      Art. 1893. An obligation without a cause, or with a false or unlawful cause, can have no effect.
      Art. 1895. The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order.
      Art. 12. Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.

      . By the time of these sales, not all items sold by ABP were listed in the 1978 catalog nor were all items in the catalog still offered for sale by ABP. However, any item with a code number assigned in that catalog necessarily retained that designation and was so listed in these sales, making a partial matching of these invoices to the catalog possible.

      . Fox testified at trial on cross-examination about the nature of this product line:
      Q. And are you familiar or practically familiar with all of the things in this catalog and that they are in fact used in connection with marijuana or other types of drugs?
      A. They can be used, yes.
      Q. And have been, wouldn’t you admit that?
      A. Yes.
      Q. And that would be used about all or practically all of the items that are on those invoices, correct?
      A. Yes.

      .ABP is suing on 115 invoice sheets containing over 1800 listings (albeit with repetitions) of product code numbers, quantities ordered and prices. Although the catalog contains a good deal of the invoiced items, the evidence docs not show the nature of all the different items line by line. See supra footnote 12.


author: PER CURIAM.

text:
    STATE of Louisiana v. Bruce SHANNON.
    No. 83-KA-0336.
    Supreme Court of Louisiana.
    Feb. 3, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Leon A. Cannizzaro, Jr., Kendall Green, Mary Charlotte McMullan, Beryl M. McSmith, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
    Ferdinand J. Kleppner, Metairie, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with the attempted second-degree murder of Ronald Receli, in violation of La.R.S. 14:27; 14:30.1. The offense occurred on the morning of May 6, 1976, moments after Receli turned his Mercedes into the intersection of Bourbon and Conti in the French Quarter of New Orleans and encountered defendant with his companion, Kathy Mantegna, as they stepped from the curb on their way across the street. A brief confrontation between the two men ended when defendant pulled a gun from his waistband and fired a single bullet at close range through the driver’s window of the Mercedes and into Receli’s head. The shot left Receli alive, but hopelessly impaired. At defendant’s first trial on November 17, 1976, the state relied primarily on testimony from two of the three passengers known at that time to have occupied the Mercedes with Receli: Hilton Castañe-do and Kenneth Lambert Both witnesses testified that defendant threw a drink into the Mercedes before he shot Receli and that the victim had his hands up to his face attempting to wipe it dry when he was struck in the head. The jury rejected defendant’s claim that he fired in self-defense, as Receli fumbled with his own gun at the bottom of the steering wheel, and found him guilty as charged. Thereafter, the trial court sentenced him to forty (40) years’ imprisonment at hard labor.

With defendant’s appeal of his conviction and sentence pending in this Court, counsel filed a motion for a new trial in the district court alleging that a newly discovered witness, and a fifth occupant of Receli’s car, Victor “Rocky” Soto, could provide critical support for the self-defense claim. Without deciding the merits of the appeal, this Court remanded the case for a hearing on the new trial motion. State v. Shannon, 360 So.2d 193 (La.1978).

The trial court eventually heard Soto’s testimony on July 9, 1979. Although Soto corroborated defendant’s self-defense claim on key points, the district court denied the motion for a new trial on September 17, 1979. In State v. Shannon, 388 So.2d 731, 737 (La.1980), this Court then reversed defendant’s conviction and sentence finding that “[bjecause the defendant’s failure to discover Victor ‘Rocky’ Soto’s testimony before or during trial was not due to a lack of diligence on his part, and because the introduction of this new evidence would have probably changed the verdict of guilty ... the motion for a new trial should have been granted.”

At defendant’s second trial on February 20, 1981, two significant developments undercut the apparent promise of Soto’s testimony for the defense. The state once again relied on testimony from Castañedo and Lambert. However, the prosecution also called a third, and completely independent eyewitness to the shooting, Michael Strachan, who agreed with Castañedo and Lambert that Receli had his hands up “trying to get the drink off his face...” when defendant pulled his pistol out from underneath his shirt and fired. In addition, counsel’s efforts to produce Soto for trial proved unavailing. In his absence, the trial judge ordered his minute clerk to read Soto’s prior recorded testimony at the new trial hearing to the jury. Nevertheless, jurors were deprived of a live account of the circumstances surrounding the Receli shooting from the only witness who corroborated defendant’s self-defense claim.

At the close of the evidence, defendant’s second jury rejected his testimony that he had shot Receli “for fear of my life” and returned another verdict of guilty as charged. On April 21, 1981, the trial court once more sentenced defendant to 40 years’ imprisonment at hard labor “... tak[ing] ... into consideration all the testimony offered during the trial ... and also, the disability of the victim_”: Defendant has now appealed his conviction and sentence to this Court urging 22 assignments of error. We have reviewed the assignments relating to various objections made in the course of trial and conclude that they lack merit. We also find no error in the trial court’s denial of the motion for a new trial on grounds that the evidence was insufficient to support the verdict. Finally, despite the brevity of the trial court’s sentencing reasons, we find no apparent severity in defendant’s 40 year sentence. Cf., State v. Ratcliff, 416 So.2d 528 (La.1982); State v. McClinton, 399 So.2d 178 (La.1981); State v. Cox, 369 So.2d 118 (La.1979).

Accordingly, defendant’s conviction and sentence are affirmed.

      . A third passenger in Receli’s car, David Dills, has apparently not testified at any proceeding.

      . Strachan, who had been standing virtually "shoulder to shoulder” with defendant on the corner of Bourbon and Conti, provided police with his name shortly after the shooting and then gave a statement to the District Attorney’s Office a week later. He did not, however, receive a subpoena to appear in court until 6 months before defendant’s second trial.

      . According to Dr. Charles Mary, the former Director of Charity Hospital in New Orleans, defendant’s shot has rendered Rcccli a quadra-pclegic and confined him to a home for the incurable.


author:
JAMES E. BOLIN, Justice ad hoc.
     LEMMON, Justice, MARCUS, Justice BLANCHE, Justice

text:
    Pascal F. CALOGERO, Jr. v. STATE of Louisiana ex rel., David C. TREEN, Governor, William J. Guste, Jr., Attorney General, James E. Brown, Secretary of State, and Jerry M. Fowler, Commissioner of Elections and Darleen M. Jacobs, Intervenor.
    No. 83-CQ-2436.
    Supreme Court of Louisiana.
    Feb. 6, 1984.

      R. King Milling, M. Truman Woodward, Jr., Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, Sam D’Am-ico, Baton Rouge, Charles A. Kronlage, Jr., New Orleans, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., Roy A. Mongrue, Charles L. Patín, Jr., Asst. Attys. Gen., David G. Sanders, Staff Atty., Baton Rouge, for defendants-appellants.
   JAMES E. BOLIN, Justice ad hoc.

Justice Pascal F. Calogero, Jr. instituted this suit for a declaratory judgment, holding that, when he was elected in November, 1974, it was for a fourteen year term as provided under the Louisiana Constitution of 1921. This declaration was sought because there was a question of whether the 1921 Constitution in effect on the date of the election determined the length of his term of office, or whether the 1974 Constitution in effect on the day he assumed the office was controlling. The trial court ruled that the law in effect on the date of his election was determinative of the length of his term of office. An appeal was taken to the First Circuit Court of Appeal which, in turn, certified the question to this court. We affirm the decision of the trial court.

On November 5, 1974 Justice Calogero was reelected to the office of Associate Justice of the Louisiana Supreme Court for the First Supreme Court District. On that date, the Louisiana Constitution of 1921 was in effect and art. 7, § 6 provided:

The justices of the Supreme Court shall be learned in the law, citizens of the United States and of this State, not less than thirty-five years of age, and each shall have practiced law in the State for at least ten years preceding his election, and shall have resided within the territory of the district from which elected, for the two years immediately preceding. They shall be elected for terms of fourteen years ...” (Emphasis added)

The governor issued plaintiff’s commission on December 31, 1974, and he took his oath of office on December 31, 1974 and, again, on January 1, 1975.

At twelve o’clock midnight, December 31, 1974, the 1974 Constitution, which had been adopted by a vote of the electorate in April, 1974, became effective. Article 5, § 3 of the 1974 Constitution provides:

“The supreme court shall be composed of a chief justice and six associate justices, four of whom must concur to render judgment. The term of a supreme court judge shall be ten years.” (Emphasis added).
Article 5, § 21 provides:
“The term of office, retirement benefits, and compensation of a judge shall not be decreased during the term for which he is elected.” (Emphasis added).
Article 14, § 26 provides:
“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

Due to the coincidence of the effective date of the new constitution with its provision for a shorter term of office and the commencement of Justice Calogero’s new term of office, and the possible confusion concerning the date the new term will expire, he instituted this suit against various state officials for a declaratory judgment. Darken M. Jacobs, a prospective candidate for the position of Associate Justice which is now held by Judge Calogero, intervened seeking to have the term of office declared to be ten years. Several state officials jointly filed exceptions of no cause or right of action, which were overruled. The case went to trial upon an agreed statement of facts, resulting in a judgment in favor of plaintiff, decreeing that he had been elected under the 1921 Constitution, and, therefore, was elected to a fourteen year term. Defendants and intervenor appealed.

Before this court, defendants take the position they have no contested interest in the merits of this case, and merely submit it for a just decision. Intervenor, however, contends that the wording of art. 5, § 21 of the Constitution of 1974, which provides that the term of office of a judge shall not be reduced during the term for which he is elected, does not protect Justice Calogero from the effects of the shorter term of office, as provided in id., art. 5, § 3. Inter-venor argues Justice Calogero and the electorate knew, at the time of his election, that the new constitution would be in effect when his new term of office began; that because of this “notice,” the electorate should have known it was electing the judge for a ten year term.

Plaintiff, on the other hand, contends that the relevant date is the date of the election; that on that date there was only one law in effect dealing with the election or term of office, which was the 1921 Constitution providing for a fourteen year term.

Amici curiae filed briefs before this court, all of whom expressed an interest in the outcome of the case. Two of these parties seek to have the term fixed at fourteen years and one at ten years.

Unlike some other officers in Louisiana, all judges’ terms of office are fixed in the constitution. When the election establishing the term is held, the constitution in effect at that time controls the length of the term. See In re Levy, 427 So.2d 844, 846 (La.1983); id. at 847; accord State ex rel. Collens v. Jumel, 30 La.Ann. 861, 864 (1878). The election must be for a specific office with a specific term and specific powers; otherwise the people would be electing a candidate to an unknown office, with an unknown term and unknown powers. This certainty on the date of the expression of the popular will is an essential element in the maintaining of the legitimacy of popular elections in a democratic society.

This necessity was not contravened by any provision of the new constitution. In fact, the new constitution expressly prohibited the retroactive application of its provisions. See State v. Shepherd, 332 So.2d 228, 230 (La.1976). To say that an election in 1974 was conducted for a term which is provided in the new constitution would be to give retroactive effect to the constitution. By its own terms, this is not allowed.

The term need not commence on the date of the election, nor within any specific time thereafter, unless specially provided by law; but the length of the term and the powers of the office must be, and are, fixed on the date of the election. The date of the assumption of the office has no relevance to the length of the term. It was, in fact, the practice of this state to elect certain judges in one year for them to assume office more than one year later. Their terms of office, however, were established on the date of the election.

Our conclusion that the term of office is controlled by the old constitution rather than the new constitution is fortified by Professor Lee Hargrave. He states:

“The reductions in term are inapplicable to terms of judges who were elected pri- or to the effective date of the new constitution. In Article XIV, Section 35 established the effective date of the constitution as ‘twelve o’clock midnight on December 31, 1974,’ and Section 26 states, ‘this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.’ By virtue of these provisions, a judge who was elected prior to January 1, 1975 was elected to the longer term and not to the reduced term. This is also made clear in the Judiciary Article, where Article V, Section 21 provides: ‘The term of office ... of a judge shall not be decreased during the term for which he is elected.’ The emphasis here is on the term for which elected, that term being the term under the old constitution, and for which he ran and was elected to while the old constitution was still in effect.” Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev., 765, 823 (1977).

It is the right of the people, when establishing a new government under a completely new constitution, to alter the rights created under the previous constitution, Sigur v. Crenshaw, 8 La.Ann. 401, 422 (1853), so long as no federal constitutional right is abridged. Such a power is inherent in the nature of changing governments.

Each of Louisiana’s former constitutions included express provisions for the transition from one constitutional government to another, including the fixing of the dates of expiration for already sitting judges. See La. Const, of 1974, art. 14, § 15; La. Const, of 1921, art. 7, § 6; La. Const, of 1913, art. 87, ¶ 5; La. Const, of 1898, art. 87, H 5; La. Const, of 1879, arts. 82 and 259; La. Const, of 1868, arts. 75 and 150; La. Const, of 1864, arts. 79 and 150; La. Const, of 1852, arts. 66 and 144; and La. Const, of 1845, arts. 65 and 144. Thus, it was within the power of the delegates to the constitutional convention of 1973 to include a provision which would have abolished all existing judicial offices on specific dates, or to provide that all judges elected after the adoption of the new constitution but prior to its effective date would be elected to a shorter term as provided for in the new constitution. Instead, however, the new constitution — which was not structurally inconsistent with the previous one — provided for the continuation of the existing offices. This was accomplished through the effect of the non-retroactivity clause, La. Const, of 1974, art. 14, § 26, the allowance for elected officials already elected to remain in office until their successors are chosen, id., art. 14, § 15, and the provision prohibiting the shortening of judicial terms, id., art. 5, § 21.

Intervenor argues that plaintiff, and the electorate, had notice that the new constitution would take effect at the same time as the commencement of Justice Calogero’s new term of office, and so they should have known that they were electing him, and he was running, for a ten year term. Because this court holds that the law in effect on the date of the election is the controlling law for purposes of determining the length of the term of office, this argument is without merit. Assuming arguen-do that the “notice” argument has some merit, the results in this case would be the same. The electorate could only have had notice that Calogero was elected at a time when the 1921 Constitution was in effect, and that the new constitution prohibited retroactive effect of its provisions.

Having decided that the 1921 Constitution in effect at the time of the election was the only law in effect, and therefore controlled the outcome of the election, it is unnecessary for this court to pass on the correctness of the trial court’s rulings on the exceptions of no cause or right of action raised by some of the defendants.

For the reasons assigned, the judgment of the Nineteenth Judicial District Court decreeing the term of office for which Justice Pascal F. Calogero, Jr. was elected on November 5, 1974 shall expire on December 31, 1988, is affirmed.

LEMMON, J., concurs and assigns reasons.'

MARCUS and BLANCHE, JJ., dissent and assign reasons.

LEMMON, Justice,

concurring.

The 1974 Constitution did not provide, in express terms, for the length of term of a judge who was elected before the Constitution's effective date to a term which began contemporaneously with the Constitution’s becoming effective. Since this is an “unprovided-for” situation, the courts must determine the issue by analogy and deduction from the overall provisions of the 1974 and 1921 Constitutions. Tate, Techniques of Judicial Interpretation in Louisiana, 22 La. L.Rev. 727 (1963).

The 1921 Constitution fixed the terms of all justices of the Supreme Court and provided that “a justice shall be elected at every regular Congressional election in the order in which the terms shall expire”. La. Const. Art. VII, § 7 (1921). The 1974 Constitution provides that all judges shall be elected at the regular congressional election and that the “election for the next term shall be held in the year in which the term expires”. La. Const. Art. V, § 22(A) and (C).

When Justice Calogero was elected in 1974, the 1921 Constitution then in effect provided for a term of 14 years. If the 1974 Constitution had not gone into effect, he undoubtedly would have had the right to a 14-year term. Of course, the 1974 Constitution did go into effect, but it contained a provision that it was not retroactive and did not create any right or liability based on actions or matters occurring before January 1, 1975. La. Const. Art. XIV, § 26 (1974). The new Constitution unquestionably could not have affected rights or liabilities which were in existence because of events occurring before its effective date, and Section 26 made it clear that the new Constitution was not intended to create any right or liability based on preoccurring events when the right or liability did not exist before its effective date. In my opinion, Section 26 indicates an intent that any changes in the 1974 Constitution would not affect any rights or liabilities that arose from events occurring before January 1, 1975, whether or not such rights or liabilities had become vested before that date.

Moreover, La. Const. Art. XIV, § 17 (1974) expressly repealed the 1921 Constitution, but not until January 1, 1975. The 1974 election, which occurred before that date, was necessarily governed by the provisions of the 1921 Constitution. Therefore, a construction that the length of term of a justice elected in the 1974 election was governed by the 1921 Constitution and was not affected by the yet-to-become-effeetive 1974 Constitution is at least as equally reasonable as an opposite construction.

The issue certainly is not free from doubt. Nevertheless, deducting from the overall provisions of both Constitutions, viewed in the light of logic and policy considerations, I conclude that the more appropriate resolution of the issue presented in this unprovided-for situation is that the justice elected in 1974 was elected to a 14-year term.

MARCUS, Justice

(dissenting).

Justice Calogero’s term for which he had previously been elected expired at midnight December 31, 1974. Hence, the new term for his office would commence on January 1. 1975. The new constitution became effective at midnight December 31, 1974. Under the new constitution, the term of a supreme court “judge” shall be ten years. The term of office for which Justice Ca-logero had been previously elected was not decreased by the new constitution as his term of office expired at midnight December 31, 1974, the time in which the new constitution went into effect. Hence, the term for which Justice Calogero was reelected was ten years, the one governed by the new constitution which was in effect at the commencement of his new term.

Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

Justice Calogero was first elected to the Supreme Court to fill the unexpired term of Chief Justice E. Howard McCaleb, Jr. That term was to end on the 31st day of December, 1974. At the time when he was running for reelection, he was also aware that the Constitution of 1974 had been adopted and would become effective at midnight on December 31, 1974, the same time his term of office would end. He further knew that the term of office which he was then serving would no longer be for a 14 year term but had been changed by the 1974 Constitution and the term for the office for which he was running to fill provided for a 10 year term. He was in fact elected to fill the office which would commence on January 1, 1975, the day after the term of his present office had expired (December 31, 1974).

From these simple set of facts, the majority reasons that the date of the election, rather than the time the office commenced would control the length of the term of that office. In other words, the reasoning goes that although Justice Calogero was running for an office which was to commence on January 1, 1975, and provided for a 10 year term and which he would serve under the new constitution, if he got elected to that very office when the old constitution of 1921 was still in effect, the term of that office as provided for under the constitution in effect at the time of his election would control. That constitution provided that the term of office of an Associate Justice of the Supreme Court was 14 years.

This reasoning is faulty because it establishes a term for an office for which he was running contrary to the term which was provided for by law when that office was to commence. It is further faulty because there was no Supreme Court judicial office in Justice Calogero’s district in existence to which a 14 year term could apply at the time of his election except the one he was occupying and which would expire by its own terms the day before the one he was running for was to begin. Stated another way — albeit the 1921 constitution was in effect at the time of the election and provided for a 14 year term, there simply was no office to which that constitution could have applied at the time of the election.

The majority also holds that “to say that an election in 1974 was conducted for a term which is provided in the new constitution would be to give retroactive effect to the constitution”. This assumes that Justice Calogero had some right to a 14 year term of office at the moment he was elected. The fallacy in this assumption is revealed when it is realized that the only right Justice Calogero possessed at the time he was elected on November 24, 1974 was the right to take the oath of office to that office to which he had been elected when the office commenced on January 1, 1975.

It would seem to this writer that the court should simply hold that the term of office to which one is elected is controlled by the law in effect on the date which the office is to commence.

This dissent is in accord with In re Levy, 427 So.2d 844 (1983) which held in effect that when Judge Levy was elected to office in 1972, that although he was elected to a 12 year term, when that term commenced he was also mandated by law at the time to retire at age 80. Therefore, the opinion holds that Judge Levy’s term of office could not have been longer from the time it commenced than the occurrence of his 80th birthday.

I therefore respectfully dissent.

       Justices Calogero and Watson are recused. Retired Judges Julian E. Bailes and James E. Bolin, appointed Justices ad hoc, served in their stead.

      . Plaintiff presented arguments which attempt to show that the term of office for which he was elected actually began prior to the effective moment of the new constitution. For that reason, Justice Calogero took his oath of office on December 31, 1974, and began exercising the powers of his new term from that moment forward. To the contrary, intervenor argues that the first oath was premature, and that the second oath was taken after the effective moment of the new constitution. Because of this court's resolution of the matter on other grounds, it is unnecessary for the court to decide this hypertcchnical issue at this time, and expresses no opinion on the matter.

      . See La. Const, of 1921, art. 7, §§ 19 and 21(B) (amended 1958). The second circuit’s at-large judge’s term would expire on December 31, 1967. The successor to the office was to be elected at the same time as the congressional election, immediately preceding the year of the expiration of the term of office. The congressional elections were held in even numbered years. Thus the successor would be elected in 1966, but would not take office until January 1, 1968, more than one year after his election to the office. Nonetheless, everybody knew that he was being elected for that specific office and for a specific term of office, as fixed on the date of the election.

      . Discussing the determination of unprovided-for cases, Justice Tate stated:
      “[I]n the exercise of this authority to decide the unprovided-for case the Louisiana courts have followed civilian techniques of judicial interpretation, including the application or extension of code concepts to new fact situations by deduction or analogy. The approach of the judge in deciding the unprovided-for case is not, however, simply that of the logician; it is more akin to that of the legislator, for the judge attempts ‘to find a rule which the legislature would have enacted had it foreseen the case.’ Not logic alone, then, but also policy considerations of what rule is best for the community as a whole and of what rule provides the fairest solution of the present controversy motivate the reasoning of the judge in formulating the rule to be used to decide the case for which the legislature did not provide.” (Footnotes omitted.) 22 La.L. Rev. at 738.

      . In addition to providing for a term of office for justices of the Supreme Court which was different from the previous Constitution, the 1974 Constitution provided for a shorter length-of-practice qualification (five years of practice instead of 10) and contained no minimum age requirement (previously 35 years of age). Certainly, a 34-year old with nine years of practice would not have been qualified in the 1974 election, although a person of the same age and experience would have been qualified in any election after January 1, 1975.

      . The 1974 Constitution perhaps could have, but did not, provide that the 10-year term for a justice of the Supreme Court was to be applicable to a judge elected in 1974 for a term beginning January 1, 1975. Although the 1974 Constitution did prohibit reduction of the justice's term "during the term for which he is elected”, the issue in this case is the length "of the term for which he is elected” and not the validity of an attempted reduction. Nevertheless, the 1974 Constitution’s solicitude for protecting against reduction in terms of already-elected judges is a factor weighing in favor of the result reached by the majority.

      . This writer dissented on the Levy case on other grounds for reasons assigned by Watson, J.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Charles W. PIXLEY.
    No. 84-KK-0085.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Reconsideration Denied March 23, 1984.
   In re: Charles W. Pixley, applying for Writs of Certiorari, Review, Prohibition, Mandamus and for Stay Order, from Lafayette City Court, Number DT-83-00087, Parish of Lafayette; Third Circuit Court of Appeal, Number K83-833.

Denied.

LEMMON, J.,

concurs and assigns reasons. It is doubtful that the burden of proof, the binding nature of the ruling, and the other provisions of La.C.Cr.P. Art. 703 apply to a pretrial hearing on the admissibility of chemical tests for alcohol. (The trial judge has discretion to conduct such a hearing when good cause is shown.) Moreover, the trial court was wrong in denying defendant the right to cross-examine the trooper who conducted the test. Nevertheless, the hearing that was conducted established the validity of the test.


text:
    STATE of Louisiana v. Danny DUBUISSON.
    No. 84-KK-0190.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   PER CURIAM.

Granted and remanded to the district court for reconsideration and for additional evidence, if necessary. If relator’s parole was not transferred to Louisiana under the Interstate Compact, then relator should be released from the Florida detainer. If relator’s parole was transferred to Louisiana under the Interstate Compact, then the trial judge should conduct the revocation hearing forthwith.


author: LEMMON, Justice,

text:
    STATE of Louisiana v. Albert A. MITCHELL.
    No. 84-K-0048.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re: Albert A. Mitchell, applying for writ of Certiorari, or writ of Review, to the Court of Appeal, Fourth Circuit, Number KA 0779; to the Criminal District Court, Parish of Orleans, Number 288-758 Section

Granted. The sentence is apparently excessive on the record, and is set aside. The case, 442 So.2d 806, is remanded to the district court to order a pre-sentence investigation report and resentence.

LEMMON, J., additionally concurs and assigns written reasons.

LEMMON, Justice,

concurring in the Order.

In my opinion, it is an abuse of sentencing discretion for the sentencing judge (1) to fail to order a presentence investigation report and (2) then to sentence the offender to 50 years without benefit of probation, parole or suspension of sentence, when the record contains very skimpy proof that the defendant was armed with a dangerous' weapon and the record further established that defendant has no prior convictions. This record and the defendant’s rap sheet, which shows only an unverified arrest with no indication of a factual basis or the ultimate disposition, are simply insufficient to justify such a sentence.


text:
    In re William Patrick BOYLAN Applying for Adoption.
    No. 84-C-0240.
    Supreme Court of Louisiana.
    Feb. 17, 1984.
   In re Lars Erik Pedersen, applying for certiorari, or writ of review and stay order, to the Court of Appeal, Fourth Circuit, No. CA-0854; Juvenile Court, Parish of Orleans, No. A-17707.

Denied.


text:
    STATE of Louisiana v. Warren J. MOITY, Sr.
    No. 84-KK-0310.
    Supreme Court of Louisiana.
    Feb. 20, 1984.
   In re Warren J. Moity, Sr., applying for writs of review, certiorari, mandamus and stay order, from the Fifteenth Judicial District Court, No. 83-3257; Parish of Lafayette, Third Circuit Court of Appeal, No. K84-94.

Denied.


text:
    STATE of Louisiana, ex rel. Marvin SMITH v. Donald R. GUILLORY.
    No. 83-KH-1034.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Donald R. Guillory, applying for writ of review, 4th Judicial District Court, Parish of Ouachita, No. 40221.

Denied.


text:
    STATE of Louisiana ex rel., James A. LEGER v. Ross D. MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-1046.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re James A. Leger, applying for writ of habeas corpus and mandamus, Parish of St. Tammany, No. 68885.

Denied.

CALOGERO, J., would grant an eviden-tiary hearing.


text:
    STATE of Louisiana ex rel., Raymond MARLER v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    Ño. 83-KH-1076.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Raymond Marler, applying for writs of certiorari, habeas corpus and mandamus, Parish of Orleans, Criminal District Court, No. 257-380.

Denied.


text:
    STATE of Louisiana, ex rel. Dennis DORSEY v. Hon. Alvin V. OSER, Judge, Section “J”, Criminal District Court, Parish of Orleans, State of Louisiana, New Orleans, Louisiana 70712.
    No. 83-KH-1095.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Dennis Dorsey, applying for writs of certiorari and review, Criminal District Court, Parish of Orleans, No. 264-880.

Denied.


text:
    STATE of Louisiana ex rel., Autrey Louis GUILLORY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1105.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Autrey Louis Guillory, applying for writ of habeas corpus, Parish of Calcasieu, No. 2309-80.

Denied.


text:
    STATE of Louisiana ex rel., Joseph WARNER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1122.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Joseph Warner, applying for writ of certiorari and habeas corpus, Parish of Orleans, No. 256-518.

Denied.


text:
    STATE of Louisiana, ex rel., Bruce E. CORLEY v. John T. KING, Secretary, Louisiana Department of Corrections, et al.
    No. 83-KH-1164.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Bruce E. Corley, applying for supervisory and remedial writs, and writ of mandamus, Parish of East Baton Rouge, No. 3-78-14.

Denied.


text:
    STATE of Louisiana ex rel., Gary DESDUNES v. Ross MAGGIO, Warden.
    No. 83-KH-1192.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Gary Desdunes, applying for writ of habeas corpus, Criminal District Court, Parish of Orleans, No. 245-992.

Denied.


text:
    STATE of Louisiana ex rel., Charles HENDERSON v. Donald HATHAWAY and William Guste, Jr.
    No. 83-KH-1256.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Charles Henderson, applying for writ of habeas corpus, from the First Judicial District Court, Parish of Caddo, No. 1118293.

Denied.


text:
    STATE of Louisiana v. Patrick S. BOYLE.
    No. 84-KK-0121.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Reconsideration Denied March 23, 1984.
   In re Patrick S. Boyle, applying for writs of certiorari, mandamus, prohibition and review, to the Court of Appeal, Fifth Circuit, No. 83-K-759; 24th Judicial District Court, Jefferson Parish, Nos. 77-1279, 77-1464.

Denied.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Robert L. DILL v. TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON.
    No. 84-KH-0124.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Robert L. Dill, applying for writ of mandamus, to the Twenty-Fourth Judicial District Court, Parish of Jefferson.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Billy Ray COCKRELL v. SECOND JUDICIAL DISTRICT COURT, PARISH OF CLAIBORNE STATE OF LOUISIANA.
    No. 84-KH-0125.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Billy Ray Cockrell, applying for writ of mandamus to the'Second Judicial District Court, Parish of Claiborne, No. 12784.

Denied. Moot.


text:
    STATE of Louisiana v. Denver Todd TARTER.
    No. 84-KK-0155.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Denver Todd Tarter, applying for supervisory writs, certiorari, and review to the Twenty-First Judicial District Court, Parish of Livingston, No. 48-078, from the First Circuit Court of Appeal, No. KW 83/1423.

Denied.


text:
    STATE of Louisiana v. Kelli MIXON and Candace Foster.
    No. 84-K-0171.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Kelli Mixon and Candace Foster, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-KA-0702; from the Nineteenth Judicial District Court, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Donnell SANDIFER.
    No. 84-KK-0265.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Donnell Sandifer, applying for writs of certiorari, review, prohibition, mandamus and a stay order, to the 21st Judicial District Court, Parish of Tangipa-hoa, No. 48033; to the First Circuit Court of Appeal, No. KW 84/0093.

Denied. Moot. Assistant District Attorney has advised that all charges have been dropped.


text:
    STATE of Louisiana ex rel. Howard J. FREEMAN v. Hon. Lemmie O. HIGHTOWER, Judge, 4th Judicial District Court Presiding, Parish of Quachita.
    No. 84-KH-0286.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Howard J. Freeman, applying for remedial writ to the 4th Judicial District Court, Parish of Quachita, No. 40-054.

Denied.


text:
    Louise Miles THIBODEAUX v. Kidearn THIBODEAUX.
    No. 84-CC-0084.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Employers National Insurance Company, applying for a writ of certiorari to review the judgment of the 24th Judicial District Court; Parish of Jefferson, No. 274-002, Division “D”, to the Fifth Circuit Court of Appeal, No. 83-C-819.

Granted.


author: CIACCIO, Judge.

text:
    Mrs. Shirley TILLMAN, Individually and on Behalf of her Minor Children, Teaka Noel Tillman, Geno Farantino Tillman, Lachina Marie Tillman and Jetson Earl Tillman, III, and Daisy Taylor on Behalf of her Minor Children, Samuel Lee Taylor, Darnell Taylor, Regina Taylor, Tammy Taylor and Tandia Taylor and Mrs. Martha Tillman and Henry Hawkins, Sr. v. Karen L. Massey, wife of/and Gregory MASSEY, Harold Massey and Safeco Insurance Company.
    No. CA 0526.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Denied March 9, 1984.

      Larry P. Boudreaux, Thibodaux, for defendants-appellants.
    Andrew L. Plauche, Jr., Plauche & Ma-selli, New Orleans, for appellee.
    Louis A. Gerdes, Jr., New Orleans, for plaintiff-appellee/appellant.
    Before REDMANN, SCHOTT, AUGUSTINE, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

The surviving heirs of Jetson Tillman, Jr. and Samuel Hawkins brought this action to recover damages for the wrongful deaths of Tillman and Hawkins. This action arose out of a vehicle/motorcycle accident on Chef Menteur Highway at Seminary Place in New Orleans. The case was tried before a jury. Upon completion of the case, the trial court granted a directed verdict dismissing American Motorist Insurance Company, the insurer of Baptist Theological Seminary. The jury rendered judgment against Karen Massey and her insurer, in favor of the surviving heirs of Samuel Hawkins in the amount of $160,000 for each of his five (5) minor children. The claims against Harold Massey, the owner of the automobile, and Gregory Massey, the husband of Karen Massey, were dismissed. The jury further rendered judgment in favor of Karen Massey and her insurer against the Estate of Jetson Tillman, Jr., in contribution, for one-half of the judgment. Karen Massey and her insurer, Safeco Insurance Co. filed a devolutive appeal contesting the issue of liability. The plaintiffs also appealed devolutively, contending that the district court erred in granting a directed verdict in favor of the insurer of Baptist Theological Seminary. We reverse the judgment of the district court on the issue of Mrs. Massey’s liability and we affirm the district court’s judgment granting a directed verdict dismissing American Motorist Insurance Company.

This accident occurred on Monday, July 21, 1977 at approximately 8:10 p.m. on Chef Menteur Highway at Seminary Place. Karen Massey was operating a 1973 Ford station wagon which was owned by Harold Massey and was occupied at the time of the accident by herself and her two-year old son, Richard Massey. Mrs. Massey was proceeding southbound on Seminary Place with the intention of crossing Chef Ment-eur Highway in order to proceed in an eastward direction on that roadway. Seminary Place is a two lane roadway, with traffic proceeding in opposite directions. Jetson Tillman, Jr. was operating a 1974 Susuki motorcycle, -which was owned and occupied by a guest passenger, Samuel Hawkins. The motorcycle was travelling westbound on Chef Menteur Highway at the time of the accident. Chef Menteur Highway is a six lane roadway with three eastbound lanes and three westbound lanes of traffic which are divided, in the middle, by a neutral ground. There exists a right curve in the roadway for west bound traffic on Chef Menteur Highway, within one-tenth of a mile east of Seminary Place.

At the moment of impact, Mrs. Massey’s vehicle had crossed the first westbound traffic lane of Chef Menteur Highway and was positioned midway across the second and fully across the third lanes of westbound traffic on that roadway. The motorcycle which was driven by Tillman and occupied by Hawkins, struck the left rear quarter panel of the station wagon as that portion of the vehicle was positioned in the center westbound lane of Chef Menteur Highway. The impact was so great that it pushed the rear of the Massey vehicle 180 degrees into the neutral ground area, so that the front of the vehicle was facing in the opposite direction from which it had been travelling. As a result of the impact, Jetson Tillman, Jr. was thrown from the motorcycle a distance of 41 feet 9 inches and Samuel Hawkins was thrown 26 feet 8 inches. Both riders sustained fatal injuries.

The issues presented on appeal are: (1) Did the trial court err in directing a verdict in favor of American Motorists Insurance Company, the insurer of Baptist Theological Seminary? (2) Was the finding of the jury, on the issue of Karen Massey’s liability, manifestly erroneous?

Liability of Baptist Theological Seminary

The plaintiffs contend that the Baptist Theological Seminary was negligent in failing to remove certain natural and man-made obstructions (i.e., shrubbery and a brick entranceway) from its property at Seminary Place and Chef Menteur Highway. They further contend that this negligence contributed to the accident of July 21, 1977, in that the obstructions impeded the visibility of Mrs. Massey as she neared the highway from her position on Seminary Place. On appeal, plaintiffs contend that the trial court erred in directing a verdict in favor of the insurer of the Baptist Theological Seminary.

Since the plaintiffs did not reurge this contention in arguments before the five-judge panel of this Court it would appear that they have abandoned their former position. Assuming, however, that the issue is still before the Court, we find that the trial court acted correctly in granting the directed verdict.

The plaintiff has the burden of proving every element of his cause of action. Laird v. Travelers Indemnity Co., 236 So.2d 561 (La.App., 4th Cir., 1970). In the instant case the plaintiffs failed to prove that the property which allegedly contained the obstruction was owned by the Baptist Theological Seminary or that this defendant had a duty to maintain this property. Accordingly, there can be no liability on the part of this defendant. La. C.C. Arts. 2316, 2317. See: Savarese v. Bye, 398 So.2d 1276 (La.App., 4th Cir., 1981); Pepitone v. State Farm Mutual Automobile Insurance Co., 369 So.2d 267 (La.App., 4th Cir., 1979) writ ref. 371 So.2d 1343 (La.1979). The directed verdict in favor of American Motorists Insurance Company was properly granted.

Liability of Karen Massey

The jury found that Mrs. Massey’s actions constituted negligence and that this negligence was a proximate cause of the accident.

The appellants contend that Mrs. Massey acted as a reasonably prudent driver under the circumstances and thus, she was free from negligence. They further argue that the sole proximate cause of the accident was the negligent acts of Jetson Tillman, Jr. in travelling at an excessive rate of speed and failing to keep a proper look out.

In the case of Pitre v. Employers Liability Assurance Corp., 234 So.2d 847 at 851-852 (La.App., 1st Cir.1970), writ den., 256 La. 617, 237 So.2d 398 (1970) the court discussed the general theory of negligence:

Plaintiff in a tort action must establish his case by a clear preponderance of evidence. Perkins v. Texas and New Orleans Railroad Company, 243 La. 829, 147 So.2d 646. An indispensable element that plaintiff must establish in a claim for negligent injuring is the existence of a duty by defendant to protect plaintiff from injury. Lanza Enterprises, Inc. v. Continental Ins. Co., La.App., 129 So.2d 91; Trahan v. Liberty Mutual Insurance Company, La.App., 188 So.2d 435; Payton v. St. John, La.App., 188 So.2d 647.
Fault is determined by asking the question: How would a reasonably prudent individual have acted or what precautions would he have taken under the same or similar circumstances? Tucker v. Travelers Insurance Company, La.App., 160 So.2d 440. Negligent conduct is determined in the light of the facts and environmental circumstances of each case. Zorick v. Maryland Casualty Company, La.App., 172 So.2d 706.
Failure to take every precaution against all foreseeable injury to another does not necessarily constitute negligence. On the contrary, negligence requires that the risk be both foreseeable and unreasonable. Turner v. Caddo Parish School Board, 252 La. 810, 214 So.2d 153. Failure to take a particular precaution to guard against injury to another in connection with a risk constitutes negligence only where it appears such a precaution would have been undertaken under the circumstances by a reasonably prudent individual. Turner v. School Board, above. One is bound to protect against what usually happens or what is likely to happen under the circumstances. Wilson v. Scurlock Oil Co., La.App., 126 So.2d 429. Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen; it does not require that one anticipate unusual and improbable, though entirely possible happenings. Rouseo v. Gauche-Connor Co., 8 Orleans, App. 216. [234 So.2d at 851-852]

A motorist approaching a controlled intersection must not only stop in obedience to a stop sign but he is required to see approaching vehicles on the favored street and to yield to them the right of way. Landry v. Yarbrough, 199 So.2d 377 (La. App., 1st Cir., 1967) and cases cited therein.

A crossing motorist need only wait until there exists a reasonably safe opportunity to cross. See: Shumaker v. Plain, 36 So.2d 869 (La.App., 1st Cir., 1948). Accordingly, a motorist entering a right-of-way street is not required to wait until there is no traffic in sight and he may also assume that the other vehicles will obey the speed limit. Faulk v. Schlumberger Well Services, 412 So.2d 162 (La.App., 3rd Cir., 1982). Camet v. Guillot, 291 So.2d 438 (La.App., 4th Cir., 1974)

In order for the doctrine of preemption to apply to a motorist who has entered the intersection before the traversing vehicle, the one seeking to invoke this doctrine must show that he entered the intersection at a proper speed and sufficiently in advance of the vehicle on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle. Simmons v. Baumgartner, 393 So.2d 904 (La.App., 4th Cir., 1981). Therefore, before one can benefit from the doctrine of pre-emption, he must establish that he entered the intersection first, that his entry was made after first ascertaining that the intersection traffic was so far removed so as to allow his safe passage and that he entered the intersection with the bona fide belief and expectation that he could cross safely. Robertson v. Ratcliff, 260 So.2d 155 (La.App., 2nd Cir., 1972). The doctrine of pre-emption has a two-fold effect: it frees the pre-empting party of negligence and it imposes negligence on the party against whom it is claimed. Fidelity & Casualty Co. of New York v. McCasland, 203 So.2d 756 (La.App., 3rd Cir., 1967).

In this case, Karen Massey, the defendant driver, testified to the events of the accident as follows:

I approached the intersection. I believe there was traffic down Chef Menteur-Highway. I came to a stop, waiting for the traffic to clear. I checked my child, who was seated on the seat next to me, being sure that he was quiet and still and sitting down, behaving as a child should in a car. I was waiting for the traffic to clear. I checked to the left and to the right, seeing that there was no more traffic, and none could be seen. I entered into the intersection of Chef Ment-eur Highway. As I entered the intersection, I again looked to the left. It was then that I noticed a light, which really attracted me, and I discerned that this light was a motorcycle. And it was approaching me at an extremely high rate of speed. I continued to proceed across the intersection, trying to cross to avoid a collision. But there was nothing I could do to avoid the collision. And as I entered into the median section, I remember thinking I must have made it. I must have made it far enough across where he could not hit me. But at that instant, I felt the impact. The car swung around. I threw the car gearshift lever into park and jumped out of the car to run and check on whoever was on the motorcycle, to see if they were injured. [Tr. Vol. II pp. 320-321]

Mrs. Massey further testified that when she made the decision to cross the highway there was no traffic coming. She stated that it was her intention to drive into the median area of the highway, check for traffic coming in the opposite direction and then proceed eastbound. She was travel-ling at approximately 10-15 miles per hour. She stated that when she was in the middle lane of the roadway, she looked left again and saw the motorcycle in the center lane, proceeding at a rate of speed which she estimated to be in excess of 60 miles per hour from a distance of about 60 yards. She attempted to accelerate further in order to get out of the way but there was not enough time.

On the day of the accident Martha Floyd was in a vehicle directly behind Mrs. Massey on the campus of the Baptist Theological Seminary. She testified that Mrs. Massey approached the intersection and looked to her left and then proceeded slowly across the intersection. In a matter of seconds Mrs. Massey was struck on the rear driver’s side by the motorcycle.

■ Anthony Genovese, a New Orleans Police Officer, was positioned across the highway on Chef Menteur and was looking in the direction of Seminary Place waiting for his partner to return from making a phone call. He testified that he saw Mrs. Massey pull out from the stop sign into the intersection to cross. When Mrs. Massey had just about reached the neutral ground he heard a loud thump and saw the station wagon spin around. He did not see the motorcycle before he heard the thump. Mr. Genovese testified that it appeared to him that, at the time she pulled out, Mrs. Massey had adequate time to cross the intersection.

Jewel Meyers was the police officer who investigated the accident. He took Mrs. Massey’s statement at the time of the investigation and that statement was essentially the same as the facts to which the defendant testified at trial. Officer Meyers stated that his investigation revealed that the Chef Menteur Highway at the point of impact is thirty-three feet, ten inches consisting of a right lane of 12 feet 1 inch, a middle lane of 11 feet 3 inches and a left of 11 feet 6 inches. The posted speed limit was 35 miles per hour. He estimated Mrs. Massey’s forward movement at 10 miles per hour and that of the motorcycle at a speed between 60 and 70 miles per hour. [Tr. Vol. 2, pp. 77-78]. There were no skid marks at the scene. The damage at the point of impact on the Massey station wagon was at the left rear quarter panel. From the point of impact, after knocking the Station Wagon 180 degrees, the motorcycle travelled 26 feet 8 inches and the Massey vehicle travelled 22 feet, 10 inches. Officer Meyers testified that in his opinion the station wagon was directly in the center lane of Gentilly when the accident occurred.

In attempting to reconstruct the events of the accident, Officer Meyer positioned his vehicle on Seminary Place with the intention of crossing Chef Menteur Highway. He testified that he experienced difficulties in this endeavor as his vision was limited to approximately '/ioth of a mile east of Seminary on Chef Menteur due to the sharp curvature of the roadway. He stated that several times he saw no traffic, pulled forward and just as he did so, a car would come around the curve causing him to reverse his car’s direction.

Andrew McPhate, a professor of mechanical engineering was called by the plaintiffs and was qualified as an expert in that field. Taking into consideration the mathematical measurements of the roadway and its physical configuration, Mr. McPhate concluded that even though the highway may appear clear when one decides to go across, there is a strong possibility that it will not be clear for long and thus the intersection should not be blocked for more than 3 to 5 seconds. Mr. McPhate concluded that a driver would have 372 seconds to cross the first three lanes of the highway if the crossing vehicle was proceeding at 10-15 miles per hour and, therefore, could cross the intersection without hazard, provided vehicles in the westbound traffic lanes were not speeding. He stated that the fact that the motorcycle changed lanes, from the far right lane to the center lane, and also its excessive rate of speed contributed to the accident. Based upon his calculations, McPhate established the speed of the motorcycle to have been 50-60 miles per hour. [Tr., Vol. 2 pp. 103-104]

Mr. Pat Joseph Murray testified that shortly before the accident, he was driving on Chef Menteur Highway towards New Orleans. He noticed the Tillman motorcycle proceeding in the same direction. Both vehicles stopped for a light at the intersection of Press Street and Chef Menteur Highway. Mr. Murray stated that at this time the motorcycle was in the far right lane. He witnessed the motorcycle speed ahead at 40-50 miles per hour, move into the center lane and continue accelerating until it collided with the Massey vehicle. He never saw the motorcycle’s brake light go on. Mr. Murray estimated Mrs. Massey’s speed at 10-15 miles per hour. He Stated that as he proceeded in the center lane at between 25 and 35 miles per hour that he saw the front of Mrs. Massey’s car and then her entire vehicle move across the roadway. Mr. Murray's vehicle was not involved in the accident.

Vincent Montalbano was operating his pick-up truck in the left lane of traffic on Chef Menteur Highway proceeding towards New Orleans. His testimony supported that of Mr. Murray. He stated that Mrs. Massey’s vehicle did not cause any danger to him and that he saw the accident and came to a normal stop at the accident site. He saw the motorcycle run right into the car with no indication of an attempt to stop or swerve. He concluded that at the time of the accident, the motorcycle was travelling at 75-80 miles per hour. [Vol. 3 pp. 294-295]

A.O. Pickens was called by the defendant and qualified as an expert in the field of traffic accident analysis. He testified that he estimated the minimum speed of the motorcycle to be 82 miles per hour. [Tr. Vol. 4 p. 439]

The plaintiffs contend that Mrs. Massey was negligent in that she stopped, looked left, then looked right and did not again look left before proceeding into Chef Menteur Highway. Plaintiffs cite no authority for their assertion that “it would appear that the last direction one should check is the direction from which the traffic is coming.” We know of no authority for such a rule. Mrs. Massey testified that she looked left after the traffic cleared and she saw no further traffic. According to the testimony of the traffic analyst, A.O. Pickins, her maximum visibility was 320 feet. She then checked right and proceeded across the roadway. We conclude that her actions were not unreasonable under the circumstances and we know of no duty for Mrs. Massey to again check to the left side. In any event the evidence is overwhelming to the effect that the motorcycle was beyond her range of vision when she began to cross so that another look would not have caused or required her to wait.

Plaintiffs further allege that Mrs. Massey did not allow herself sufficient time to cross the highway considering the curvature of the road. They intimate that Mrs. Massey should have proceeded across the roadway at a more rapid rate of speed. Mr. McPhate, plaintiffs’ expert, testified that at the crossing rate of 10-15 miles per hour (which was Mrs. Massey’s speed) a vehicle would have 3'/2 seconds to cross the first three lanes of the highway and could cross safely if vehicles in the westbound lanes were not speeding. Under the circumstances the defendant’s speed was proper. She had no duty to make a “jackrabbit” start from Seminary Lane across Chef Menteur Highway and the plaintiffs have not given authority for such a proposition. We conclude that her speed was reasonable under the circumstances.

As a matter of law the defendant’s actions were not negligent and therefore the jury’s conclusion to the contrary was manifestly erroneous.

The lay and expert testimony establish that Mrs. Massey’s behavior, on the day of this accident, as being that of a reasonably prudent individual under the circumstances. She approached the stop sign and stopped before entering the highway. She looked to her left and then to her right, and, seeing no approaching traffic, she proceeded at a normal speed across the intersection. She had no duty to anticipate the improbable actions of Mr. Tillman and it appeared to her to be reasonably safe to cross the intersection. She had pre-empted the intersection when she glanced to her left again. She had entered the intersection after first ascertaining that the cross traffic was so far removed to allow safe passage, and with the bona fide belief that she could cross safely. At that moment she perceived the motorcycle for the first time speeding towards her and she accelerated to avoid the accident but there was not enough time for her to avoid the collision. Mrs. Massey was not negligent in her initial action of proceeding across the intersection nor in reacting to the situation of danger once she perceived the speeding motorcycle. On the other hand, because of the excessive speed of the motorcycle it reached the point of the accident much sooner than it would have had it been moving at a legal rate of speed which explains why Mrs. Massey cannot be blamed for not seeing it until it was too late. From the established fact that Tillman didn’t even apply his brakes before the impact, it follows that he never saw Mrs. Massey’s car until he ran headlong into it. Tillman obviously was not in control of his motorcycle since he could have easily avoided the accident by going around the rear of the car and he failed to do so.

Thus, the sole cause of the accident was the negligent acts of Jetson Tillman, Jr. in exceeding the speed limit, failing to keep a proper lookout, and failing to maintain control of the motorcycle. Were it not for these negligent actions the accident would not have' occurred. This conclusion is further supported by the testimony of Pat Murray and Vincent Montalbano, who were proceeding in the same direction as the motorcycle, but at a safe speed and who had no difficulty in avoiding a collision with the Murray vehicle.

For the reasons assigned the judgment of the district court awarding recovery for damages to the minor heirs of Samuel Hawkins against Karen L. Massey and Sa-feco Insurance Co. is reversed, and in all other respects the judgment is affirmed. Cost of this appeal are to be paid by the plaintiffs-appellees.

REVERSED IN PART. AND AFFIRMED IN PART.

      . Although the jury interrogatories were couched in terms of "proximate cause", the proper analysis of negligence in this case and the one utilized by this court is an analysis in terms of a "duty-risk” approach.