Gloria D. PIPER, et vir
v.
Dr. Roy RABALAIS, et al.
Court of Appeal of Louisiana, First Circuit.
Leo J. Berggreen, Baton Rouge, for plaintiffs-appellants Gloria D. Piper and Henry Piper.
*752 David Donnell, Moss, Baton Rouge, for defendant-appellee Dr. Homer Appleby.
Frank A. Fertitta, Baton Rouge, for defendants-appellees Dr. Roy Rabalais and St. Paul Fire and Marine Insurance Co.
Donald S. Zuber, Baton Rouge, for defendants-appellees Woman's Foundation Hospital, Inc., and St. Paul Fire and Marine Insurance Co.
Before ELLIS, LOTTINGER and PONDER, JJ.
PONDER, Judge.
Plaintiff, Mrs. Gloria Piper, appealed from the denial of a new trial after an adverse jury verdict and judgment on a suit for damages alleging lack of consent for surgery. The bases for the motion for a new trial were that the verdict was contrary to the law and the evidence and that the jury was unconstitutionally selected.
The issues are the admissibility of testimony of the content of a missing document and the constitutionality of the method of jury selection in East Baton Rouge Parish.
We affirm.
Although plaintiff's assignments of error are based upon the denial of a new trial, the Motion for Appeal was from both the jury verdict and the judgment arising therefrom and the denial of the Motion for a New Trial. The appeal is properly before the court. Smith v. Hartford Accident and Indemnity Company,
Plaintiff's specification of error is evidently based upon the court's admission of evidence as to the existence of a signed form giving consent to the surgery without the form being produced.
We find no objection in the record to the admissibility of the testimony. The portion of the transcript cited by plaintiff[1] seems to be an objection to the witness testifying beyond her personal knowledge.
At any rate we find no error. After it has been established that a document has been lost, secondary evidence to prove the contents of the document becomes admissible. LSA-C.C. Art. 2279; Tri-State Ins. Co. v. Elmore LaBiche Plumbing Co.,
Plaintiff's testimony that she had not signed the consent to surgery was directly contradicted by other testimony. The jury evidently believed the contrary evidence. We find no manifest error; the verdict was not contrary to the law and the evidence.
Plaintiff contends that on the motion for a new trial she made out a prima facie case of racial discrimination in the method of jury selection and that defendant did not satisfy the shifted onus to justify the disparity.
LSA-R.S. 13:3052 provides:
"All objections to the manner of selecting or drawing the jury or to any defect or irregularity that can be pleaded against any array or venire must be urged before entering on the trial of the case; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard."
However, we will address the question of the allegedly defective jury selection system because of plaintiff's contention that she did not knowingly waive a constitutional right and because of the jurisprudence that the right of a litigant to a jury trial is fundamental in character and the courts *753 will indulge every presumption against a waiver, loss or forfeiture. Brewer v. Loewer,
Because no record of the jury selection in this trial was kept and because there is no indication of race on the jury records, the only proof of the racial makeup was the statement of the attorneys. Evidently, twenty-four jurors were sent to the court room from the jury panel. Evidently twenty of these were subjected to voir dire; five were black. The court excused one black for health reasons and defense counsel peremptorily excused four. Three whites were evidently excused, one by plaintiff's counsel and two by defense counsel. There was no evidence as to the color of the remaining four prospective jurors.
We are unable to find any pattern of discrimination in the above facts. There is no evidence of the racial composition of the jury pool of which the twenty-four were part. There is in fact no proof that the four who were not examined on voir dire were not black, making the ratio eight of twenty-four, higher than the racial makeup of the inhabitants of East Baton Rouge Parish, as shown below.
The sources of names of names for possible jury duties are the list of registered voters in East Baton Rouge Parish and the list of licensed drivers of this parish. Evidence showed that 21.9 percent of the registered voters in East Baton Rouge Parish are black and that 23.9 percent of the drivers are black. A census made in 1973 showed that the black population of this parish constituted 28.2 percent of the total.[2] There were no figures to show how the percentage would be affected by striking the names of those under eighteen.
The federal courts have not yet provided a mathematically exact test for systematic exclusion of blacks. Alexander v. Louisiana,
The cases cited by plaintiff are criminal cases. We entertain considerable doubt that the constitutional requirements apply with equal rigor to civil cases. However, even assuming the standard is the same, we find that the plaintiff received a fair trial with no denial of due process of law.
For these reasons, the judgment is affirmed at appellant's costs.
AFFIRMED.
NOTES
Notes
[1] Q. Now, Ms. Fereday, what does that signature on that page indicate you did with respect to Gloria Piper?
Mr. Cobb: Now, I'm going to object at this time, Your Honor. I'll agree that if she says that's her signature that that's her signature and it's on that page, and it's circled in red. But unless she remembers Gloria Piper and remembers what she did, I object to her reading what she says she did.
Mr. Zuber: May it please the Court,
The Court: I overrule the objection. Go ahead."
[2] As was pointed out in United States ex rel. Barksdale v. Blackburn,