author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Nep LEWIS, Defendant-Appellant.
    No. CR83-369.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.

      J. Michael Small and Kathrine Williamson, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Joseph P. Beck, II, Dist. Atty., Gregory N. Wampler, and James Buck, Asst. Dist. Attys., Colfax, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   YELVERTON, Judge.

Defendant, Nep Lewis, pleaded guilty to simple burglary (LSA-R.S. 14:62). His guilty plea was entered with the reservation of the right to appeal an earlier adverse ruling on a motion to suppress evidence. This appeal presents for our review the single issue of whether the trial court’s denial of the motion to suppress was correct. Appellant contends that the affidavit supporting the search warrant failed to recite facts establishing probable cause for its issuance.

Defendant was arrested, along with two co-defendants, on November 5, 1981. That same day, District Judge Robert P. Jackson in Rapides Parish issued a search warrant for the search of a U-Haul truck parked beside Lake Buhlow near Alexandria. The warrant described some church benches stolen from a church in another parish. As a result of the search pursuant to the warrant, the benches were seized and held as evidence. This is the evidence sought to be suppressed.

A deputy sheriff of Grant Parish swore out the affidavit supporting the warrant. The affidavit said:

“On November 5, 1981, your affiant, L.W. Hataway, had occasion to interview Estelle Granier, after establishing probable cause to arrest Granier, Elvis J. Lane and Nep Lewis for burglary. During the interview, your affiant was told 12 church benches were stored in the above described U-Haul truck. She further stated these benches were taken from a church between Krotz Springs, Louisiana, and Alexandria, Louisiana. An official police report reflects that Nep Lewis, another of the arrestees, related to Robert Sanders, the arresting officer, stated the above listed merchandise was stolen from the Summerfield Baptist Church located in Grant Parish, and is presently in the above described U-Haul truck, which he stated was located in a roadside park next to a lake near Alexandria, Louisiana.”

Article 1, Section 5 of the Louisiana Constitution of 1974 requires that warrants to search or seize shall only be issued where there exists probable cause supported by an oath or affirmation. Conformably, La. C.Cr.P. art. 162 provides that a search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

Probable cause exists when the facts and circumstances within the affi-ant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence may be found at the place to be searched. State v. Johnson, 408 So.2d 1280 (La.1982). In the determination of probable cause, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Lingle, 436 So.2d 456 (La.1983). The task of the reviewing court is simply to insure that the magistrate had a substantial basis for concluding that probable cause existed. Id. A magistrate’s determination of probable cause should be accorded great deference by a reviewing court. State v. Ogden, 391 So.2d 434 (La.1980).

Defendant presents several arguments attacking the sufficiency of the affidavit. One is that the language can be as readily interpreted to describe innocent conduct as criminal conduct. This argument unduly emphasizes Ms. Granier’s use of the word “taken” in describing the removal of the benches from the church. Defendant himself is reported by the affidavit to have said the merchandise was “stolen” from the Summerfield Baptist Church and presently stored in the U-Haul. The trial judge thought the affidavit as a whole furnished probable cause to believe that evidence of criminal conduct was to be found in the U-Haul to be searched and we agree.

Defendant also argues that the affidavit contains only conclusory allegations with no supporting facts to indicate by whom the property was stolen or when, or how the deed was accomplished or how the defendant knew about it. This argument has no merit. This case involves a search warrant, not an arrest warrant, and it was not necessary to establish probable cause to arrest defendant for burglary. State v. Lingle, supra. It was only necessary to establish probable cause to believe that evidence of criminal conduct could be found in the premises to be searched.

Finally, defendant argues that the affidavit did not set forth the underlying facts and circumstances from which the magistrate might determine both the credibility of the informants and the information they are alleged to have related, under the two-pronged test jurisprudentially developed from Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We reject this argument also.

In Illinois v. Gates, — U.S.-, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the “excessively technical” two-pronged test of Aguilar — Spinelli in favor of the “totality of the circumstances” approach. Nevertheless, the Supreme Court indicated that the veracity, reliability and basis of knowledge of the informants continues to be highly relevant m determining probable cause.

In the instant case the informants, including defendant, were named in the affidavit and they were under arrest as participants in the crime. Their statements identified the stolen property, where it came from, and where it could presently be found. These were incriminating statements against their own interests, and imparts indicia of credibility sufficient at least to support a finding of probable cause to search. State v. Mena, 399 So.2d 149 (La.1981); State v. Huff, 392 So.2d 1046 (La.1980).

The facts contained in the affidavit constitute an abundant showing of probable cause to believe that the stolen church benches would be found in the U-Haul.

The ruling of the trial court denying appellant’s motion to suppress is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Estelle GRANIER, Appellant.
    No. CR83-370.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.

      J. Michael Small and Kathrine S. Williamson, Small, Small, Williamson & Brocato, Alexandria, for appellant.
    Joseph P. Beck, II, Dist. Atty., Gregory N. Wampler and James Buck, Asst. Dist. Attys., Colfax, for appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   FORET, Judge.

Following the denial of a pre-trial motion to suppress, defendant, Estelle Granier, pleaded guilty to the charge of illegal possession of stolen goods of a value of $500 or more, a violation of LSA-R.S. 14:69. She was subsequently sentenced to three years at hard labor and a $2,000 fine On appeal, defendant relies on two assignments of error for reversal of her conviction and sentence:

(1) The trial court erred in denying her motion to suppress and,
(2) The trial court erred in imposing an excessive sentence in violation of the Louisiana Constitution’s prohibition against the infliction of cruel and unusual or excessive punishment.

PACTS

On the evening of November 3, 1981, Estelle Granier, Nep Lewis, and Elvis Lane left their homes in Ascension Parish and drove to Grant Parish. Mrs. Granier drove her Dodge van, while Mr. Lane drove a truck which was pulling a rented U-Haul trailer. During the course of the following day, the three burglarized the Summerfield Baptist Church and a nearby residence. The stolen items were stored in the trailer and parked at a roadside rest area near Lake Buhlow Park, in Rapides Parish. Mrs. Granier and her two companions were arrested on November 4, 1981, and charged with simple burglary.

Based on the affidavit of L.T. Hattaway, a member of the Grant Parish Sheriff’s Department, a warrant was issued for the search of the U-Haul trailer. Pursuant to the execution of that warrant, several items were seized which form the basis of the instant prosecution.

Seeking to exclude the items seized during the search of the trailer, Mrs. Granier filed a pre-trial motion to suppress. That motion was denied. On January 24, 1983, Mrs. Granier pleaded guilty to the lesser charge of illegal possession of stolen goods, but reserved her right to appeal the trial court’s ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976).

ASSIGNMENT OF ERROR NUMBER 1

By this assignment, defendant contends that the trial court erred in not granting her pre-trial motion to suppress because the affidavit upon which the search was based did not contain sufficient information to establish probable cause. The affidavit reads as follows:

“On November 5, 1981, your affiant, L.W. Hattaway, had occasion to interview Estelle Granier, after establishing probable cause to arrest Granier, Elvis J. Lane and Nep Lewis for burglary. During the interview, your affiant was told 12 church benches were stored in the above described U-Haul truck. She further stated these benches were taken from a church between Krotz Springs, Louisiana and Alexandria, Louisiana. An official police report reflects that Nep Lewis, another of the arrestees, related to Robert Sanders, the arresting officer, stated the above listed merchandise was stolen from the Summerfield Baptist Church located in Grant Parish, and is presently in the above described U-Haul truck, which he stated was located in a roadside park next to a lake near Alexandria, Louisiana.”

In deciding whether to issue a search warrant, the magistrate’s task is to make a practical, common sense decision, based on all the circumstances set forth in the affidavit, whether there is a fair probability that evidence of a crime will be found in the area to be searched. In evaluating the magistrate’s decision, the reviewing court’s task is to determine if he had a substantial basis for concluding that probable cause existed. State v. Lingle, 436 So.2d 456 (La.1983). Because we find that the magistrate had a substantial basis for concluding probable cause existed, we affirm the trial court’s denial of defendant’s motion to suppress.

Defendant first argues that the affidavit is invalid because it does not contain any information which would establish that criminal activity had taken place. State v. Loehr, 355 So.2d 925 (La.1978). Defendant contends that her statement that certain items were “taken” and “stored” were equally consistent with innocent behavior. State v. Boksham, 370 So.2d 491 (La.1979).

Affidavits are tested and interpreted in a realistic and practical fashion because they are drafted by non-lawyers in the midst and haste of criminal investigation. Technical requirements of elaborate specificity are not required. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In and of itself, the word “taken” does not connote criminal behavior, but the affidavit clearly states that Mrs. Granier’s statements were given in the form of an admission after her arrest for burglary. Thus, the word “taken” could reasonably be interpreted as meaning “stolen”. In addition, the statement by Nep Lewis, one of the participants in the crime, that those same items were stolen, clearly shows that a crime had been committed. Reading the affidavit from a common sense approach, the magistrate had sufficient facts to establish a substantial basis for his belief that criminal activity had taken place.

Defendant next argues that the affidavit contains no facts which would support a finding that the information related by Mrs. Granier and Mr. Lewis was reliable or that the two were, in any way, credible informants. The statements were made in the form of admissions, and therefore were statements against their penal interests. Because of this fact, the magistrate had sufficient evidence that the information was reliable and the informants credible. State v. Mosely, 412 So.2d 527 (La.1982); State v. Huff, 392 So.2d 1046 (La.1980). Looking at the affidavit as a whole, in a common sense and practical approach, we find that the magistrate had a substantial basis for concluding that probable cause existed. Therefore, this assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, the defendant contends that the sentence imposed upon her constitutes cruel, excessive, and unusual punishment. LSA-Const., Art. 1, § 20; State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than a purposeless and needless imposition of pain and suffering. State v. Phagans, 412 So.2d 580 (La.1982). However, the trial judge is given wide discretion in the imposition of sentences and his decision should not be upset absent a manifest abuse of discretion. State v. Prados, 404 So.2d 925 (La.1981).

A trial judge’s reasons for sentence, as required by C.Cr.P. Art. 894.1, are an important aid to an appellate court when called upon to review a sentence complained of as excessive. State v. Jones, 412 So.2d 1051 (La.1982). The record reflects that the trial judge adequately considered the guidelines before his imposition of the sentence. He specifically mentioned several factors which influenced his decision and thoroughly evaluated all aggravating and mitigating circumstances applicable to the defendant. The court also relied on an extensive pre-sentence investigation report and considered numerous letters written on behalf of the defendant. We also note that the sentence was well within the lower range of sentences which might have been imposed under the statute.

Considering all the factual circumstances of the case, and the detailed reasons for judgment given by the trial judge, this assignment lacks merit.

DECREE

For the reasons set forth above, the conviction and sentence are affirmed.

AFFIRMED. »

      . In default of the fine, defendant would serve six months in the parish prison.

      . Stolen from the church were a mimeograph machine, an electric typewriter, and several pieces of furniture. Stolen from the residence were various tools and a chest.

      . La.C.Cr.P. Article 162 provides:
      “Art. 162. Issuance of warrant; affidavit; description
      A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant."

      . The maximum sentence for illegal possession of stolen things when the value of the things is $500 or more, shall be imprisonment for not more than 10 years or a fine of not more than $3,000, or both.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Larry A. DUNN, Defendant-Appellant.
    No. CR83-371.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.
    J. Michael Small and Kathrine S. Williamson, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Joseph P. Beck, II, Dist. Atty.; Gregory N. Wampler, and James Buck, Asst. Dist. Attys., Colfax, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   STOKER, Judge.

Defendant, Larry Dunn, was charged with possession of marijuana with intent to distribute and possession of cocaine with intent to distribute in violation of LSA-R.S. 40:966(A) and LSA-R.S. 40:967(A). After a motion to suppress was denied, defendant plead guilty to an amended charge of attempted possession of cocaine. Defendant, entered his guilty plea reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to seek review of the trial court’s denial of the motion to suppress. Larry Dunn was sentenced to two years imprisonment at hard labor with the Department of Corrections, and was fined $1,250. The only issue presented here is whether the trial court erred in denying defendant’s motion to suppress. We affirm.

FACTS

On November 17,1981, Adrian Lamkin, a Grant Parish deputy sheriff, applied for a warrant to search the residence of Larry Dunn located in Grant Parish. In support of his application for the warrant, the officer submitted an affidavit, which in pertinent part provided:

“Within the past 48 hours, the informant was in the above described residence and while there the informant saw what the informant knows to be a large quantity of substance the occupant of the residence, one Larry Brown (sic), did state to be marijuana. The informant also identified the substance seen to be marijuana. The informant is familiar with the drug marijuana due to the informants past association with the drug for the past 6 months.
“This informant is reliable to your affi-ant in as much as the informant has given information to your affiant relative to drug trafficing (sic) in Grant Parish on at least 9 occasions. On each of these occasions, your affiant has been able to verify this information to be true and correct thru (sic) either direct investigation, corroboration thru (sic) informants, or corroboration with other police agencies.” (Tr. 29,87)

On the basis of the affidavit, the search warrant was issued on November 17, 1981, and executed that same evening. In executing the warrant Deputy Lamkin seized a quantity of marijuana, cocaine and other controlled dangerous substances. Defendant, who was present in his residence at the time of the seizure, was arrested.

ASSIGNMENT OF ERROR

The defendant urges that the trial court erred in denying the motion to suppress, .arguing that the affidavit supporting the issuance of the search warrant failed, within its four corners, to establish probable cause to search defendant’s residence so as to meet constitutional, statutory and jurisprudential requirements. In the affidavit, Deputy Lamkin related that the confidential informant saw what he described to be a “large quantity” of marijuana. Specifically, defendant argues that by the use of these terms the affidavit fails to contain the type of detailed factual basis contemplated by the jurisprudence necessary to establish probable cause sufficient to justify issuance of a valid search warrant.

The facts necessary to establish probable cause may be established by hearsay evidence. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Paciera, 290 So.2d 681 (La.1974). In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court laid down a two-pronged test by which information given the affiant by an unidentified informant could be considered by the magistrate in determining if there was probable cause upon which a search warrant should issue. See also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Recently, the Supreme Court in Illinois v. Gates, — U.S.-, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), abandoned the two-pronged Aguilar-Spinelli test for the “totality of the circumstances” test. The Louisiana Supreme Court in State v. Lingle, 436 So.2d 456 (La.1983), subsequent to the trial court’s decision in this case, cited Gates as authority for the abandonment of the Aguilar-Spinelli test. The Court in Gates, supra, stated:

“The two-pronged test of Aguilar-Spi-nelli encouraged an excessively technical dissection of informants’ tips with undue attention being focused on isolated issues that could not sensibly be divorced from other facts... The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are — quite properly — issued on non-technical common-sense judgments of laymen applying a standard less demanding than those used in more formal, legal proceedings.”

In describing the task of the magistrate and the duty of a • reviewing court, the Court in Gates, supra, stated:

“The task of issuing magistrate is simply to make a practical, common-sense deeision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to insure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.”

Defendant cites State v. Bonaventure, 374 So.2d 1238 (La.1979), and State v. Lewis, 385 So.2d 226 (La.1980), for the proposition that the use of the term “quantity” in an affidavit to describe the amount of illegal drugs to be seized has been condemned by the Louisiana Supreme Court as failing to provide a sufficiently detailed factual basis for determining probable cause upon which a search warrant may validly issue. Defendant further argues that the addition of the adjective “large” does little to cure the defect. Defendant submits that, although under Aguilar-Spinelli, “direct personal observation” by the informant is one of the factors which support the reliability of the information submitted to the magistrate, in this case such observation is unreliable because the terms “large quantity” indicates lack of any supporting detail making it just as likely that the informant gained his “knowledge” through “mere rumour”. We disagree.

On their facts, both Bonaventure, supra, and Lewis, supra, are distinguishable from this case. In our view, they do not stand for the general proposition that use of the term “quantity” in an affidavit prohibits a finding of probable cause.

In Bonaventure, the affidavit recited that the entire “quantity” observed was “offered for consumption”. It was this last qualification plus the time factor involved that led the court to find a lack of probable cause. The court reasoned that, because of the small consumable amount initially observed and because the search did not take place until approximately two days later, the facts were insufficient to support the belief that either the marijuana eventually seized would be the same consumable amount originally offered or that other marijuana than that offered for consumption could be found at the place to be searched.

In Lems, the affidavit stated that the “quantity” of marijuana was offered to the “confidential informant as marijuana to smoke” and that he did smoke it. Again, it was this last qualification plus the fact that the warrant was not executed until three days after the informant told the officer of his observation and possibly as much as ten days after he actually observed and smoked the marijuana that led the court to find that there could be no reasonable belief that either the marijuana offered to and consumed by the informant remained in defendant’s apartment or that drugs other than the marijuana offered to and consumed by the informant were in the apartment. Based on these two decisions, it is clear that use of the descriptive term “quantity” in an affidavit does not prohibit a finding of probable cause.

In the instant case, the term “quantity” was qualified by use of the adjective “large”. We feel that use of the qualifying word “large” supports the magistrate’s finding of probable cause. The confidential informant personally saw the marijuana, and he saw it at the defendant’s residence in the defendant’s presence. These facts support the credibility of the information given by the informant. Deputy Lam-kin attested to the fact that this particular informant had provided prior accurate reports concerning drug trafficking in Grant Parish. This factor supports the credibility of the informant. This information was reported to the magistrate in the affidavit within 48 hours of the informant’s observation and the search warrant was issued (and executed) on the same day that the affidavit was submitted. Additionally, the affidavit recited that the informant saw a “large quantity” of marijuana. This fact, plus the short time sequence involved between the informant’s observation and the issuance (and execution) of the search warrant, indicates a reasonable basis for believing that the same marijuana remained at defendant’s residence.

Given all of these circumstances as set forth in the affidavit before him, the magistrate made a practical, common-sense decision that there was a fair probability that the contraband would still be found at defendant’s residence.

It is our opinion that, under Gates, the trial court had a substantial basis for concluding that probable cause existed upon which to issue a search warrant. The affidavit contained sufficient facts to support both the credibility of the information provided by the informant and the credibility of the informant himself. Thus, not only does the affidavit pass the “totality of the circumstances” test of Gates, but also the two-pronged test of Aguilar-Spinelli.

Because the search warrant was issued based on probable cause, the resulting search and seizure was lawful.

For the reasons assigned above, the trial court’s denial of defendant’s motion to suppress is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lee Ray SINEGAL, Defendant-Appellant.
    No. CR83-414.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Bernard N. Marcantel, Marcantel & Mar-cantel, Jennings, for defendant-appellant.
    W. Gregory Arnette, Jr., Dist. Atty., W.J. Riley, III, and Jacquelyne Heinen, Asst. Dist. Attys., Jennings, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   STOKER, Judge.

Defendant, Lee Ray Sinegal, was charged with distribution of marijuana, a violation of LSA-R.S. 40:966(A). He was found guilty of attempted distribution of marijuana by a jury and was subsequently sentenced to three years in the custody of the Department of Corrections and fined $4,500. We affirm the conviction and sentence.

On appeal, Sinegal raises the following assignments of error:

“1. The trial court failed to give due weight and consideration to the findings and recommendations contained in the presentence investigation report.
“2. The trial court did not give due weight and consideration to, and failed to comply with, the requirements of Code of Criminal Procedure Article 894.1.
“3. The trial court imposed an excessive sentence.
“4. The trial court failed to afford defendant access to the presentence investigation report and an opportunity to rebut materially false information contained therein.”

The first assignment of error has been voluntarily abandoned on appeal.

In assignments of error two and three defendant complains that his sentence of three years and $4,500 is excessive and, in imposing that sentence, the trial judge did not adequately comply with LSA-C.Cr.P. art. 894.1. We consider these two assignments together.

The crime of attempted distribution of marijuana is punishable by imprisonment of up to five years at hard labor and by a fine of not more than $7,500, half the penalty for distribution. Although the sentence imposed on Sinegal is not in the lower range of that which might have been imposed, we do not find that it is “apparently severe” and consequently do not find that it is an abuse of the wide discretion accorded the trial judge. See State v. Jones, 381 So.2d 416 (La.1980). In any event, the trial judge adequately complied with the sentencing guidelines even though he did not articulate every aggravating and mitigating circumstance. His reasons for sentence show that the guidelines were considered. State v. Duncan, 420 So.2d 1105 (La.1982).

In his fourth assignment of error defendant complains that he was not given the opportunity to rebut false information contained in the pre-sentence investigation report. The information complained of is the undercover policeman’s statement that Sinegal is a “big man” in the narcotics trade. Further statements in the report show that this conclusion was based on the fact that the officer was directed to see Sinegal on several occasions to buy marijuana during his undercover investigation. The officer also noted that Sinegal was quick to help him find marijuana.

The officer testified at trial that he did not have a particular target for his investigation. Sinegal argues that this testimony conflicts with the officer’s conclusion that Sinegal was a “big man” in the narcotics trade. We disagree. It is clear from the report that the officer reached his conclusion only after his investigation had begun. Aside from a denial, nothing presented on appeal shows that the officér’s conclusion was false.

Defendant asserts in his brief that he made three requests to see the pre-sen-tence investigation report in the trial judge’s chambers, but these requests were refused. We note that at the sentencing hearing no further objection was made concerning either access to the report or its veracity. This situation is similar to that which was before the Louisiana Supreme Court in State v. Boone, 364 So.2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979), in which the court held that there is no error if there is nothing in the designated record on appeal to establish that a timely request was made to see the report and no showing that the report contained false information prejudicial to the defendant. See also State v. Bindom, 410 So.2d 749 (La.1982).

These cases indicate to us that the record itself must reflect a timely request by defense counsel to see the pre-sentence investigation report. The record before us contains no indication of a timely request. Moreover, as noted above, there has been no showing that the information contained in the report was in fact false. Therefore, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Glen ALLEN v. Cecil M. KEENEY, Donald R. Chandler, John R. Tipton, Steve Davis, Fred Martin, John Pennington, Charles O. Seruntine, Jr., Floyd Jenkins, Courtney Pennington, Employees Mutual Liability Insurance Company of Wisconsin, Standard Paint and Varnish Company, Inc., Nolty J. Theriot, Inc. and The Continental Insurance Company.
    No. 83 CA 0114.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Thomas W. Thorne, Jr., New Orleans, for Employers National Ins. Co.
    W. Frederick Denkman, Stuart McClen-don, Metairie, for plaintiff Glen Allen.
    Wood Brown, III, New Orleans, for Cecil Keeney, et al.
    Jack Alltmont, Robert Redwine, New Orleans, for Equitable Equipment & Equitable Shipyards.
    Dominic Gianna and J. Gregg Collins, New Orleans, for Standard Paint & Varnish.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit for personal injuries occurring when plaintiff, Glen Allen, was injured while building a ship over navigable waters. Several defendants were named: Cecil M. Keeney, John R. Tipton, John Pennington, Charles 0. Seruntine, Jr., Steve A. Davis, Donald R. Chandler, Fred Martin, Floyd Jenkins, Courtney Pennington, Maurice Toomer, Lee R. Stelly, Robert Mahne, all supervisors or executives of Equitable Equipment Co., Inc. (now Equitable Shipyards, Inc., hereinafter referred to as “Equitable”), pursuant to La.R.S. 23:1101, before amendment; Employer’s Mutual Liability Insurance Company of Wisconsin (hereinafter referred to as “Employers Mutual”), liability insurer of Equitable; Standard Paint and Varnish Company, Inc. (hereinafter referred to as “Standard”), manufacturer and supplier of a paint which ignited and resulted in the accident; and Nolty J. Theriot, Inc. and the Continental Insurance Company, the company for whom the ship was being built and its insurer, respectively.

The defendants sought a summary judgment, but were denied. A jury trial was conducted. The trial judge directed a verdict in favor of Nolty J. Theriot, Inc. and its insurer. The jury found only some of Equitable’s employees liable (Cecil M. Kee-ney, John R. Tipton, John Pennington, Charles O. Seruntine, Jr., Steve A. Davis and Maurice Toomer) and therefore also found Equitable’s insurer, Employer’s Mutual, liable. Standard was found negligent, but the jury determined that its negligence was not a legal cause of the accident. Plaintiff was awarded $750,000.00. A motion for post-trial relief was filed by defendants but was denied.

From the trial court’s judgment, which implemented the jury’s findings, both plaintiff and the defendants that were held liable appealed.

FACTS

On October 10, 1975, plaintiff was employed by Equitable as an electrician. Several ocean-going tugs were being built by Equitable for Nolty Theriot, Inc., one of which was “Hull No. 1660.” It was lying in navigable waters at the time. On the night before, the interior of Hull No. 1660 had been painted with a product manufactured by Standard. Plaintiff was performing electrical work upon the hull along with several co-workers who were welding and cutting. A sudden explosion ripped through the hull, killing one worker immediately and mortally wounding another. Plaintiff received only minor burns but witnessed the charred and mutilated bodies of his fellow workers; his claimed psychological injuries stem from this observation.

SPECIFICATIONS OF ERROR

The defendants have alleged the following specifications of error:

1) The trial court erred in failing to grant summary judgment against the plaintiff or to give post-trial relief because: a) the Longshoremen’s and Harbor Worker’s Compensation Act (LHWCA) applies exclusively to this case, the Louisiana Workmen’s Compensation Act does not, hence defendants are immune from suit; b) alternatively, should the state act apply, its allowance of suits against co-employees is violative of the uniformity of maritime law; c) there is no right of election of remedies for plaintiff here, but if there is, such election should not bind defendants; and d) alternatively, no election was made by plaintiff;

2) the jury erred in finding that five of the six co-employees held liable were negligent;

3) the jury erred in finding that Standard’s negligence was not a legal cause of the accident; and

4)jury’s award of $750,000 was excessive.

The plaintiff also appealed, alleging that 1) the jury erred in finding that Standard’s paint was not defective and that the paint was not a legal cause of the accident, and

2) the jury erred in finding that Standard’s negligence was not a legal cause of the accident.

ISSUES

THE EXCLUSIVITY OF THE LHWCA

Plaintiff brought suit against his co-employees under La.R.S. 23:1101 as it read before its amendment by 1976 La. Acts, No. 147, § 2. Defendants first maintain that the LHWCA applies exclusively to plaintiffs’ claim and therefore the present suit is prohibited by that Act. Plaintiffs do not deny that the LHWCA applies, but rather argue that it is not the exclusive remedy.

A review of the history of the LHWCA and the evolution of its concurrent jurisdiction with state compensation laws is unnecessary, since such a review is contained in Director, Office of Worker’s Compensation Programs, United States Department of Labor v. Perini North River Associates, — U.S. -, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983) arid in our own Supreme Court’s decision in Beverly v. Action Marine Services, Inc., 433 So.2d 139 (La.1983).

In the latter case the Supreme Court stated:

“Clearly, there is an area of concurrent federal and state jurisdiction. Although the exact boundaries of this zone are unclear, state law is limited to claims which are ‘local’ in nature. The twilight zone does include ‘persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act’, (citations omitted) Any doubt should be resolved in favor of the constitutionality of the state remedy.” Beverly v. Action Marine Services, Inc., supra, 433 So.2d at 142.

Therefore the issue is whether plaintiffs injury, occurring on navigable waters, is “maritime but local,” and thus falls in the “twilight zone” of concurrent jurisdiction, or whether it is a purely maritime injury governed by the LWCHA alone. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917).

The Louisiana Supreme Court acknowledged in Beverly v. Action Marine Services, Inc., supra, that the question of what type workers’ duties and injuries constitute “maritime but local” is a difficult one. In Beverly, the worker was a land-based employee of a company that repaired and cleaned vessels. While cleaning out tanks on a vessel afloat upon navigable waters, the employee died after inhaling toxic fumes. After reviewing several United States Supreme Court cases where parties injured over navigable waters while repairing vessels or working on barges were allowed to elect a state remedy, the Supreme Court decreed that state compensation law could apply to Beverly. The court found those cases indistinguishable from the facts in Beverly.

The court apparently also based the Beverly decision on the fact that LHWCA benefits were unavailable to the claimants therein, citing footnote 18 of Perini. We believe that this statement in Beverly was only added for additional support, and was not meant to be the cornerstone of the decision. As the court stated earlier in the opinion, a state compensation remedy may only apply if it is constitutional in the application, i.e. the injury is not beyond the Jensen line. We do not read footnote 18 of Perini to state otherwise.

The scope of plaintiffs duties here was not deeply explored at trial. Allen testified that at the time of the accident he was a first class electrician at Equitable, having moved up from third class in less than a year. He had been working approximately six weeks upon Hull No. 1660 when the accident occurred. He installed and inspected electrical devices aboard the hull, which is what he was doing on the morning of the explosion. We cannot determine from the record what proportion of time, if any, that Allen spent performing duties ashore.

The present case, however, fits into the “twilight zone” more comfortably than does Beverly. As plaintiff points out, contracts to construct entirely new ships are non-maritime because of their inchoate connection to commerce and navigation, while ship repair contracts are maritime. Thames Towboat Co. v. The Francis McDonald, 254 U.S. 242, 41 S.Ct. 65, 65 L.Ed. 245 (1920). In Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), a carpenter at work aboard a vessel afloat in navigable waters was injured and was allowed to receive state compensation benefits. The court there reconciled the Rohde decision with Jensen and its progeny thusly:

“In each of them [the Jensen -type cases] the employment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here the parties contracted with reference to the state statute; their rights and liabilities had no direct relations to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.” Grant Smith-Porter v. Rohde, supra, 257 U.S. at 477, 42 S.Ct. at 158, 66 L.Ed. 321.

We thus find that plaintiffs suit under the Louisiana Workmen’s Compensation Law was properly allowed because of its local nature and placement in the “twilight zone.”

STATE LAW CONFLICT WITH MARITIME LAW

Defendants next claim that if the state compensation act applies, then “general maritime law” forbids plaintiff from bringing this suit against his co-employees, citing Petition of United States, 367 F.2d 505 (3rd Cir.1965), cert. denied, 386 U.S. 932, 87 S.Ct. 953, 17 L.Ed.2d 805 (1967) and Foremost Insurance Company v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982).

Defendants’ argument is unpersuasive. As they admit, the LHWCA applies here.

The LHWCA is Congress’ exercise of the constitutional grant of admiralty jurisdiction. Gudmundson v. Cardillo, 126 F.2d 521 (D.C.Cir.1942). Thus, the LHWCA supplants the “general maritime law” in cases where the LHWCA governs. This is evidenced, for example, by the 1972 amendments to the LHWCA which abolished the traditional maritime action for unseaworthiness for persons covered by the act. 33 U.S.C. § 905.

As we stated earlier, this is a case where both the state and federal compensation schemes might apply. Once that is determined, it is improper “to reexamine the question of state-federal conflict with respect to particular provisions of the act.” Poche v. Avondale Shipyards, Inc., 339 So.2d 1212, 1221 (La.1976), appeal dismissed 434 U.S. 803, 98 S.Ct. 31, 54 L.Ed.2d 60. That Poche, supra, involved a case where an employee was injured on land we deem to be inconsequential. The LHWCA and our state’s compensation law both applied there; the “executive officer” suit allowed under our law but forbidden by the LHWCA was upheld.

PLAINTIFF’S RIGHT OF ELECTION

Defendants argue here that if plaintiff is allowed a right to elect the state compensation remedy over the federal, then that election is unfair to defendants, since federal law (either the LHWCA or general maritime law) would prohibit such a suit.

Poche again negates this contention. It would make little sense to allow a right to elect (as we have done) and then to disallow the application of state law when it conflicted with federal law. Plaintiff can choose the more beneficial remedy when the jurisdiction is concurrent.

Defendants next maintain that plaintiff has failed to elect a remedy. They cite Poche, where one of the plaintiffs on original hearing was dismissed because it was stipulated at trial that he was receiving LHWCA benefits. The court held that this was an election to pursue remedies under the federal compensation statute. On rehearing the court noted that there was no evidence that plaintiff elected to seek LHWCA remedies; there was only evidence that he had accepted payments made pursuant to the LHWCA. The court then remanded the case to the district court to determine whether plaintiff had elected a federal remedy. Several cases were cited to buttress their change of mind: Calbeck v. Travelers Insurance Company, 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). Holland v. Harrison Brothers Dry Dock and Repair Yard, Inc., 306 F.2d 369 (5th Cir.1962); Griffin v. Universal Underwriters Insurance Company, 283 So.2d 748 (La.1973); and Ryder v. Insurance Company of North America, 282 So.2d 771 (La.App. 3rd Cir.1973).

Defendants aver that the action taken by the court in Poche means that a plaintiff must prove that an election was made, and that pursuing a suit through the trial court and appellate courts is insufficient to establish an election.

Defendants are mistaken: a plaintiff, having a choice of remedies, does not have to prove that he elected one of them. Rather, the defendant must prove that a plaintiff has made a binding election of one remedy and thus that plaintiff is denied from pursuing other remedies. As the court in Poche said, the fact that a plaintiff received LHWCA benefits is no evidence that a binding election of remedies was made.

In the present case, a written stipulation in the record indicates that plaintiff received $27,255.10, paid pursuant to the LHWCA by Employers National Insurance Company. This is the only “evidence” that he chose the LHWCA remedies. It cannot be determined that plaintiff made an informed choice to accept federal benefits over state, nor whether if even plaintiff, rather than the insurer, made the initial choice or remedies. See Valdez v. Equitable Equipment Company, Inc., 383 So.2d 1371 (La.App. 4th Cir.1980) and Biondolillo v. Geosource, Inc., 359 So.2d 286 (La. App. 4th Cir.1978). Additionally, we take judicial notice of the fact that plaintiff filed a workmen’s compensation suit in state court on October 11, 1976.

As noted above, the plaintiff will not be allowed double recovery; the insurer will be reimbursed for its LHWCA payments from the damage award.

Defendants have failed to prove that plaintiff made a binding election of LHWCA benefits.

LIABILITY OP EQUITABLE’S EMPLOYEES

The defendants-appellants maintain that all of them but Maurice Toomer (and thus also Employers Mutual) were erroneously found liable by the jury.

The night before the accident, a paint crew had applied Standard’s paint, 39-W, to a ballast tank on Hull No. 1660. Lee Stelly was the night superintendent; he testified that after the painting was completed around midnight, he put a message in a “safety box” telling of the painting and he put “no hot work” signs in the engine room adjacent to the ballast tank (“no hot work” warns that no welding or torch work is to be done).

Floyd Jenkins, who had dual responsibilities in quality control and in safety, tested the engine room before work started in the morning with an.explosimeter, a device designed to register the amount of explosive vapors in the air. Getting a reading of 20%, Jenkins reported this finding to Courtney Pennington, who had been appointed superintendent of painting the day before, and to Maurice Toomer, painting foreman. Toomer admitted being told of the readings by Jenkins. He further stated that it then became his duty to ventilate the area; Toomer said that he told Ray Jenkins to take appropriate action, but Jenkins denied having been told.

Nearly all agreed that what should have been done once the 20% reading was made was to rope off the area and stop any hot work. Ben Mullins, electrical foreman and the plaintiffs immediate superior, testified that no one told him paint fumes were present in the engine room on that morning. The shipfitters were allowed to work in the engine room; after about two hours of hot work a flash fire engulfed two of plaintiff’s co-workers.

Defendants-appellants claim that Kee-ney, Tipton, Davis, Pennington and Serun-tine all lacked the “personal fault” required to hold such executive officers liable. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Charles Seruntine, Jr., the assistant safety director, was the highest-ranking safety man permanently assigned to Equitable’s shipyard in Madisonville, Louisiana. Though his job duties required that he test newly painted tanks for dangerous fumes before work commenced, it was his practice to arrive at the shipyard around eight o’clock in the morning, long after work had started; he arrived after the explosion on October 10th. Seruntine testified that had he tested the tanks instead of Jenkins, he would have stopped all work in the engine room and roped off the area. By not fulfilling his duty of testing the tank, Serun-tine allowed Jenkins, who apparently believed he could not stop work himself because of his lower stature, to test the tank. Thus Seruntine, though delegating some of his authority, was personally at fault for the accident. By his own admission, Serun-tine would have prevented the explosion had he gotten to work earlier and tested the tank. The jury’s finding here was correct.

John Pennington, Seruntine’s superior, was the safety director for Equitable’s yards in Madisonville and New Orleans. He was at the New Orleans yard at the time of the explosion. There was evidence that he was aware of Seruntine’s habitual tardiness which prevented Seruntine from fulfilling his duties. Additionally Pennington was remiss in not adequately explaining to Jenkins his role as “designated competent person.” Jenkins thought he had to report such a dangerous condition to the involved foreman (the proper procedure under Equitable’s safety manual), whereas Pennington said that Jenkins could have immediately stopped all hot work himself “whether he knew it or not.”

Steve Davis, the “wet dock” manager, was supervisor of the construction of Hull No. 1660. He testified that he was told of the 20% reading on board the ship. Nevertheless, he ordered the shipfitting crews to work in the engine room but to stay clear of the manhole leading into the newly painted ballast tank. He said these orders were justifiable because of Standard’s representations to him that its 39W paint would not catch fire or explode. Nearly all other witnesses, including the other defendants, stated that such a “hot reading” would call for an immediate cessation of all hot work no matter what paint was used. The jury’s findings here were not clearly erroneous.

John Tipton, vice president of Equitable, and Cecil Keeney, president of the company, were not shown to have breached a duty to plaintiff so as to support findings of personal fault. Each of them had delegated to subordinates the responsibility of carrying out the safety program. Though plaintiff tried to paint a picture of a company policy where production takes precedence over safety, plaintiff was unable to link Keeney and Tipton personally with the accident and its causes. The jury’s findings as to Keeney and Tipton, therefore, are manifestly erroneous or clearly wrong.

LIABILITY OF STANDARD PAINT

Both plaintiff and defendants-appellants argue that the jury erred in exonerating Standard, the manufacturer and seller of the paint that exploded.

The product, 39W, was found by the jury not to be defective so as to be unreasonably dangerous to normal use. See Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971).

The case against Standard and its product was made on three fronts. First, Standard furnished Equitable with two separate documents regarding the 39W paint. The “Material Safety Data Sheet” was blank under the heading “flash point.” The flash point is the temperature which the vapors must reach to catch fire. The flash point is listed as 105 degrees Fahrenheit on the “Technical Data” sheet. Thus, some safety people who only read the safety sheet could have been unaware of the flash point.

Secondly, neither document lists ethyl alcohol as a solvent in 39W; only mineral spirits is listed as such in the safety sheet. The formula for the product shows that a small amount of ethyl alcohol was used as a solvent in 39W. The amount of alcohol that was sprayed in the ballast tank was estimated to be three and a half ounces. The plaintiffs expert testified that the amount greatly increased the flammability of the vapors in the tank; the defendant’s expert testified that this small amount of alcohol would have little or no effect.

Lastly, plaintiff and defendant-appellants claim that some of Standard’s salesmen ' misled Equitable into believing that 39W would not catch fire or explode.

The jury, in absolving Standard, could have placed weight on John Pennington’s (the safety director for Equitable) testimony that the proper procedure once a dangerous reading on the explosimeter was obtained was to stop work and ventilate the area using forced air and suction hoses, no matter what any data sheet might say. This was buttressed by other Equitable employees who stated that all paints used at the shipyard were thought to be potentially explosive; the 20% reading on Jenkins’ explosimeter was uniformly regarded as dangerous, demanding an immediate shut-down of work. Thus, the jury could have reasonably determined that even if Standard was at fault for not including the flash point of 39W on the safety data sheet, or for not listing ethyl alcohol as an ingredient, Equitable’s employees bear sole responsibility for the accident.

Finally, Standard’s employees testified that no representations that 39W was not flammable were made to Equitable employees; rather, 39W was described as a paint that would not burn once it had dried when welding work was done on surfaces where it was applied.

Thus, the jury’s findings here are not clearly erroneous. There is support for not finding 39W unreasonably dangerous and for finding Standard’s “negligence” (in not including the flash point on the safety sheet or ethyl alcohol on either sheet) not to have been a cause-in-fact of the accident.

. QUANTUM OF DAMAGES

Defendants-appellants claim that the jury’s award to plaintiff of $750,000.00 was excessive.

At the time of the accident Glen Allen was 30 years old and married with two children. Prior to working at Equitable, Allen had held jobs with several companies as an electrician. His immediate superior at Equitable testified that Allen was a dependable worker who “was more advanced than other people in my crew that I had.”

As a result of the explosion, Allen received minor burns which were shortly healed. Two of his co-workers died, however. Allen testified that he witnessed in great detail the horrible disfigurement and extreme agony of the two men.

Allen immediately began to exhibit signs of mental damage. He became depressed, anxious and unable to eat or sleep or to return to work. He was hospitalized at Touro Infirmary when suicidal tendencies were displayed.

His treating physician at Touro was Dr. Charles Smith. He testified that Allen exhibited signs of severe post-traumatic stress disorder which were in all probability a result of the accident. Dr. Duane Burgess treated Allen for over five years. He described in detail Allen’s medical history during that time. Allen’s depression and fears necessitated prescriptions of several tranquilizers and anti-depressant drugs, without which Allen could not function, in his opinion. Allen had to be hospitalized several times during that period for more intensive treatment. He continues to take strong medications and will likely need to continue doing so indefinitely.

From the time of the accident in 1975 until the trial in 1982, plaintiff had not worked at any paying job. Several attempts to return to work ended in frustration when Allen proved incapable of overcoming the paralyzing fear which rendered him incompetent to perform simple tasks, concentrate, or to assume any responsibility. Dr. Burgess, along with Dr. Pitzler, a psychologist who performed tests upon the plaintiff, both stated that Allen was suffering from chronic post-traumatic stress disorder; both thought there was little or no chance that his condition would improve in the future.

Plaintiff also complained that he experiences nightmares three or four times a week. Migraine headaches occur at the same rate. He has had stomach problems resulting in ulcers. His appetite has shrunk considerably, and he cannot eat meat because it reminds him of his charred co-workers.

There was evidence that plaintiffs past medical expenses were $24,041.44. Future medical expenses, as testified to by plaintiffs economist based upon the treating physician’s prognosis, was calculated to be $166,425.00. The economist estimated plaintiffs past lost wages to be $108,-501.00; his future lost wages, including employee fringe benefits offered by most employers, well put at $584,284.00. The past wages were calculated on the basis of Allen’s last tax return; the future lost wages were calculated by using a work-life expectancy of 25 years, a &k% inflation rate and a 7lk% discount rate and periodic pay raises; a permanent disability was of course assumed.

Thus on the basis of credible evidence the jury was presented with possible special damages alone of $883,251.00. That the total award given by the jury was only $750,000.00, which may have included an award for past and future pain and suffering, indicates an award within the “much discretion” allowed the trier of fact. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Therefore, the judgment of the trial court is reversed only insofar as it found Cecil Keeney and John Tipton liable, and in all other respects, the judgment of the trial court is affirmed, with appellants to pay all costs both in this court and in the trial court.

REVERSED IN PART AND AFFIRMED IN PART.

      . Several third-party claims were filed by the various defendants; all were dismissed and none were appealed. Employers National Insurance Company intervened to recover $27,-255.10 paid by it to plaintiff, which represented payments under the Longshoremen's and Harbor Worker’s Compensation Act; judgment was rendered awarding intervenor that amount.

      . Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959); Moore’s Case, 323 Mass. 162, 80 N.E.2d 478 (1948); affirmed in Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948); Baskin v. Industrial Accident Commission, 89 Cal.App.2d 632, 201 P.2d 549 (1949), remanded in Baskin v. Industrial Accident Commission, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949).

      . Footnote 18 of Perini, as quoted in Beverly, states:
      "[B]oth state and federal remedies are available to injured workers, ... employers with employees working on the shore would have to contribute to state compensation funds in the event that an employee covered by LHWCA’s shore-side extension sought state compensation, or an employee was deemed for whatever reason not to be eligible for LHWCA relief.” Director, Etc. v. Perini North River Associates, supra, — U.S. -, 103 S.Ct. at 643, 74 L.Ed.2d at 475. (Emphasis added) Beverly v. Action Marine, supra 433 So.2d at 141.

      .Plaintiff mentions in passing that he has no right at present to assert a claim under the LHWCA. He has not shown this to be so. We do not feel the possible availability to LHWCA benefits to plaintiff distinguishes the case from Beverly, however, as just stated.

      . By conceding Toomer's liability, Employers Mutual remains liable for the whole judgment. In the event we find the other defendants-appellants blameless and Standard liable, Employers Mutual would then ultimately bear a lesser proportion of the judgment.


author: SHORTESS, Judge.

text:
    Dottie ROSS v. Joseph P. NOBLE, et al. Joseph NOBLE, et al. v. The LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    Nos. 83 CA 0203, 83 CA 0222.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Tim Tullos, Paul H. Dué, Baton Rouge, for plaintiffs/appellees Joseph Noble and State Farm Mut. Auto. Ins. Co.
    C. Alvin Tyler & Associates, Baton Rouge, for defendant/appellee John C. Wood.
    Robert L. Oliver and Phillip Jones, Baton Rouge, and Randall J. Cashio, Baton Rouge, for defendant/appellant La. Dept, of Transp.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

These consolidated suits arose out of a motor vehicle accident which occurred on February 2, 1980, involving a vehicle operated by Katherine M. Wood and owned by John C. Wood, her father. Dottie P. Ross was a passenger in the Wood car. The other vehicle involved in the accident was owned and operated by Joseph W. Noble. The accident occurred at the intersection of Louisiana Highway 16 and Louisiana Highway 64 in Livingston Parish. A traffic semaphore signal controls traffic at this intersection, and the State of Louisiana, through the Department of Transportation and Development (DOTD), was made a defendant in both suits. Cross claims and third party demands between the parties and their insurers are involved.

After trial on the merits, the trial court found that the sole legal cause of the collision between Wood and Noble was the defective condition of the traffic semaphore signal at the intersection which it found to be unreasonably dangerous. It imposed liability against DOTD in accordance with La.C.C. art. 2317 and awarded judgment in favor of Ross for $93,485.26. It dismissed Ross' suit against Noble, finding no actionable negligence on Noble’s part. It dismissed all third party demands. Additionally, it awarded State Farm Mutual Automobile Insurance Company and Noble damages of $3,986.37 and $100.00, respectively, representing the property damage to Noble’s vehicle. DOTD was taxed with costs.

DOTD has appealed from both judgments and enumerates four issues.

(1) What was the cause in fact of the accident?
(2) Does the failure to produce evidence of post-accident repairs require the imposition of an adverse presumption of fault?
(3) Is an accident report admissible as primary evidence?
(4) Was the quantum awarded for damages excessive?

ISSUE ONE — CAUSE IN FACT

Wood testified that she approached the intersection of La. 16 and La. 64 from a southerly direction at approximately 40 to 45 miles per hour; that she had a green light as she approached; that as she entered the intersection the light turned blank; that she applied her brakes gently and continued on; that Noble’s car entered the intersection from her right; that there was no way she could avoid it; that she slammed on her brakes and turned to her left but collided with the left side of Noble’s vehicle, hitting its left back door; that after the accident she watched the light and it would correctly cycle for a few times and then would malfunction as the signal went from green to blank to red. On cross examination she estimated that she was about 30 feet from the intersection when the light blanked and was going 40 miles per hour — no faster than 45 miles per hour; that she was fifteen years old at the time of the accident and had been driving about two or three months.

Wood’s testimony was generally corroborated by her mother, Dottie Ross (plaintiff), who was a passenger in the front seat of the vehicle. Ross felt that there was nothing her daughter could do to avoid the accident because the light was green as they approached and then went blank when they were about 25 feet from the intersection.

David Ross, plaintiff’s husband and Wood’s stepfather, was called to the scene after the accident. He observed the light and found that occasionally when the light went blank on the south side, the green light came on on the east side.

Noble testified that he was proceeding east on La. 64; that he had stopped for a red light; that when the light changed to green he waited three or four seconds because there was a pickup truck opposing him with its left turn blinker on; that when he ascertained that the truck would not turn left in front of him, he pulled into the intersection; that he did not look to his left before pulling out because his attention was focused on the pickup truck; that he did not see Ross approaching; that he did not observe a malfunctioning light from his direction; that he also saw a car to his right which stopped as the light changed to green for him; that as he pulled forward into the intersection his vehicle was struck on the left side at the rear passenger door.

Donald DeVall testified that he was facing Noble in a pickup truck with his left blinker on; that he had stopped for the red light and was sitting there admiring Noble’s nice new car; that he had his left-turn blinker on when the light turned green but waited for Noble; that Noble “kinda set there” but so did he and finally Noble came across the intersection; that prior to that he had seen nothing coming from his right; that he saw the car that hit Noble just seconds before the collision; that three or four seconds passed before Noble proceeded into the intersection; that he did not move forward prior to the accident; and that he did not observe the light malfunction but was not watching for a malfunction.

Cecile Holley was proceeding north on La. 16. She testified that as she approached the light it went from green to yellow; that she slowed down and stopped as the light turned red; that she sat there two or three seconds and then Noble pulled from her left side into the intersection; that Noble was just under the red light when struck; that after she stopped she noticed the oncoming car which looked like it was trying to slow down; that the car was coming too fast to stop if it had the red light and she felt that an accident was inevitable.

The trial court had testimony from all four of the drivers who were at the intersection, all of whom were proceeding in different directions. That testimony indicated that northbound traffic had a red light, eastbound and westbound traffic had a green light, and southbound traffic had a blank light.

After the accident, the Louisiana State Police was called and Trooper Jean Claude Crescionne arrived on the scene at approximately 3:59 p.m. to investigate. He interviewed witnesses and prepared an accident report. Unfortunately, Crescionne died before the trial. The trial court permitted in evidence over strenuous objection from DOTD a certified copy of his report. The thrust of its objection was that the report was hearsay and should not have been admitted because the well-settled law of Louisiana is that when a person making an accident report is unavailable for cross-examination, the report is inadmissible as hearsay. Southern County Mutual Insurance Company v. Bryant, 385 So.2d 1286 (La.App. 3rd Cir.1980); Robinson v. St. Paul Fire & Marine Insurance Co., 298 So.2d 282 (La.App. 1st Cir.1974), writ denied, 302 So.2d 23 (La.1974); Veal v. Hutchinson, 284 So.2d 60 (La.App. 4th Cir. 1973); writ denied, 286 So.2d 662 (La. 1973); Montgomery v. City of New Orleans, 266 So.2d 482 (La.App. 4th Cir.1972), writ denied, 263 La. 370, 268 So.2d 258 (1972); Deville v. Aetna Insurance Company, 191 So.2d 324 (La.App. 3rd Cir.1966), writ denied, 250 La. 13, 193 So.2d 527 (1967).

We agree that the well-settled law of this State is that accident reports are inadmissible primarily because of the hearsay contained therein. There are other objectionable grounds such as improper opinions or conclusions. In this case, Ross seeks to circumvent the hearsay objection by arguing that since Crescionne was employed by the State and the State is a party defendant, that any reports he made would be admissible as an “admission against interest.” He cites Pennington v. F. G. Sullivan, Jr., Etc., 416 So.2d 192 (La.App. 1st Cir.1982), writ denied, 421 So.2d 248 (La.1982); and Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972). In Pennington, a conversation with defendant’s employee was deemed to be admissible as a statement of an agent acting for a principal. Campbell dealt with a letter wherein a vehicle owner stated he had no insurance. That statement was determined to be a declaration against interest and admissible. The authority cited by Ross is inapposite to the facts presented here. Furthermore, we cannot tell from the accident report whether Crescionne’s notations were his own perceptions or were related to him by others. If related by others, then clearly, the accident report would contain double hearsay declarations. In the pertinent portion of the report, the trooper made the following notation:

Veh. 2 was stopped for red light and Veh. 1 was southbound on green light. The green light went out and showed nothing, the red light turned green. Veh. 1 struck Veh. 2 at right angle. Light was watched for long period of time and continued to do the same. Light went from green to nothing to red. This occured (sic) every five light stages.

Crescionne was not present when the accident happened, so anything he related concerning positions of vehicles and how the accident happened was related to him by others. His notation relative to the light itself might be his perception but could be that of someone else. The trial court erred in permitting the accident report into evidence because it was hearsay. That court noted, however, that it placed little weight on the report. We find that any error created by the admission was harmless.

DOTD called two witnesses. Sherwood Lanier had been in the signal maintenance department for twenty years. He testified generally about how the lights were supposed to operate. Robert Adams was district traffic operations engineer. He testified that if the light blanked on the amber cycle for southbound traffic, it should have blanked for northbound traffic also. He also testified that had Wood been faced with a blank it should have been for no longer than three seconds, the length of the amber cycle.

Without objection, Adams also testified that the State Police called the night of the accident to report the malfunctioning light at this intersection, but he had no record of what was done to repair it.

All four drivers spoke of a short three- or four-second interval before Noble’s movement as Wood proceeded into the intersection. If the light did malfunction, then Wood was confronted with a sudden emergency not of her own making, especially if the green light had come on for westbound traffic while her light was blank, as testified to by plaintiff and Wood. Their testimony is corroborated by Adams’ admission that DOTD received notification from the State Police the night of the accident that the light was malfunctioning.

As a matter of law, a high degree of care must be exacted of those whose obligation it is to maintain traffic signals. The greater degree of volume of traffic, the greater is the need for effective vehicular control, which includes properly functioning signals upon which motorists may rely with confidence. Chesson v. American Hardware Mutual Insurance Company, 412 So.2d 186 (La.App. 3rd Cir.1982); McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir.1970), writ denied, 256 La. 616, 237 So.2d 397 (1970).

Strict liability under La.C.C. art. 2317 is likewise applicable with respect to defective things, such as malfunctioning traffic lights, within the custody or under the control of public bodies. Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La.1980); Garrison v. State, Through Dept. of Highways, 401 So.2d 528 (La.App. 2nd Cir.1981).

Considering the entire record, we cannot say that the trial court was clearly wrong in finding that the sole legal cause in fact of the accident was the malfunctioning traffic light under the control of DOTD. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

ISSUE TWO — POST-ACCIDENT REPAIRS AND ADVERSE PRESUMPTION

It is unnecessary to address this issue because of our treatment of Issue One.

ISSUE THREE — ADMISSIBILITY OF THE ACCIDENT REPORT

We disposed of this issue while discussing Issue One.

ISSUE FOUR — WAS QUANTUM EXCESSIVE?

The total award to Ross was $93,485.26. DOTD argues that $75,000.00 in general damages, $5,000.00 for future medical expenses and $5,000.00 for future loss of wages was excessive since the evidence showed that Ross suffered only a chronic cervical strain.

The medical portion of the case was presented by depositions and reports. The trial court found that Ross sustained injuries resulting in a probable herniated cervical discs at two cervical interspaces which will in all likelihood require surgery.

Within two weeks of the accident, Ross was seen by Dr. J. Louis Tonore with left shoulder pain complaints. He found cervical spasm through February. On March 2,1980, Dr. William F. Hageman, an orthopedic surgeon, hospitalized plaintiff after receiving complaints of pain in the left side of her neck, posteriorly, and headaches over the occiput. He found mild spasm and straightening of the cervical lordosis and kept her hospitalized in traction for one week. Plaintiff went to Ochs-ner Clinic on May 14, 1980, because of her continued complaints. She was diagnosed as having a cervical sprain by Dr. Ed Con-nelly, a neurosurgeon at Ochsner. On May 11, 1981, Ross saw Dr. Kenneth Adatto, an orthopedic surgeon in New Orleans, who diagnosed a chronic cervical syndrome. Dr. Adatto saw her periodically and treated her with medication. After a sophisticated fourth generation CAT scan became available in New Orleans, Adatto suggested a cervical CAT scan to Ross. On July 2, 1982, she had the testing done by the Pry-tania Computerized Radiology Group, Inc. The test results given to Adatto were:

There is a soft tissue density projecting posteriorly and slightly to the left at the level of the C4-5 disc space. This may be related to local disc pathology. This is not a definite abnormality.
The central canal is normal at all levels. There is very mild narrowing of the left sided foramen at C5-6. The other fo-ramina are normal.

Based on those findings, along with his own observations and treatment, Adatto was 90% sure that Ross had ruptured discs at two cervical levels. This evidence was uncontroverted. The trial court’s award of $75,000.00 in general damages was not clearly erroneous. Its award was not an abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

The trial court awarded $5,000.00 for future loss of earnings. The record showed that Ross worked as a substitute teacher for the Livingston Parish School Board. In 1979 she worked 42 days at $20.00 per day. In 1980, the year of the accident, she did not work at all. In 1981, she worked three days in December. She had not worked in 1982 through September 10, the date of trial. Plaintiff testified that she had not worked because of pain. The trial judge, using a 42-day period as his benchmark, awarded $2,280.00 for loss of income.

Dr. Adatto felt that plaintiff should have surgery. Plaintiff testified she would submit to the surgery Adatto suggested. The hospital stay was estimated to be four to five days. No evidence was produced as to the prognosis, and no medical estimate was given as to the maximum recovery period. Pisciotta v. Allstate Ins. Co., 385 So.2d 1176 (La.1979). Plaintiff failed to prove a $5,000.00 diminution of earning capacity. The daily rate for a non-degreed substitute teacher such as plaintiff was $30.00 per day at the time of trial. The trial court was clearly wrong in awarding what amounted to 166.67 days (approximately four years at 42 days per year at $30 per day) of lost future income. Fifty days at $30.00 per day, or $1,500.00, is all the record can support, and we must reduce this award to conform therewith.

Appellant also complains about the $5,000.00 award for future medical expenses. It was inadequate, but appellee has not answered this appeal. Adatto testified that the hospital expenses for the operation would cost $10,000.00, and his bill would be $5,000.00. We cannot change this award since adequacy is the only issue before us.

CONCLUSION

The trial judge was not clearly wrong in his findings on liability. His award of general damages was not an abuse of discretion. His award of future loss of income is reduced to $1,500.00. His award of future loss of income is reduced to $1,500.00. His award of future medical expenses is affirmed. Judgment in 83CA0222 is affirmed. Judgment in 83CA0203 is reduced to $89,985.26, together with legal interest thereon from date of judicial demand until paid. DOTD is taxed with costs, which amount to $1,346.59.

AMENDED AND AFFIRMED.