author: GUIDRY, Judge.

text:
    Jimmie Lee BERNSTINE, Plaintiff-Appellant, v. CITY OF NATCHITOCHES et al., Defendants-Appellees.
    No. 5534.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Kelly, Seaman & Ware by Charles Seaman, Natchitoches, for plaintiff-appellant.
    Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Natchitoches, for defendants-appellees.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

In this suit plaintiff seeks to recover general and special damages allegedly sustained by him as a result of his having been shot by Sgt. Glenn Dowden, a police officer with the City of Natchitoches Police Department, on the night of June 28, 1974.

The trial judge denied plaintiff’s demand in general damages against the police officer and his employer. The Court did, however, hold that plaintiff was entitled to recover the sum of $455.00, which represents the bill of Confederate Memorial Hospital in Shreveport, Louisiana, for services rendered by that institution to the plaintiff following the incident of June 28, 1974. In granting plaintiff this latter relief the trial court reasoned that a municipality has a statutory responsibility to furnish needed medical services to persons under arrest and in custody.

Plaintiff has appealed. The City of Natchitoches has answered the appeal seeking reversal of the trial court judgment insofar as it awards plaintiff the amount of $455.00 and insofar as it casts the City for all costs in the trial court. In all other respects the defendant City prays that the lower court judgment be affirmed. Glenn Dowden has neither appealed nor answered the appeal of plaintiff.

We have no hesitancy in affirming the trial court’s finding that under the circumstances of 'this case plaintiff is not entitled to recover any general damages for the injuries sustained by him in his altercation with Officer Dowden.

In his written reasons for judgment the learned trial judge set forth his findings of fact as follows:

“During the night of June 28, 1974, City Policeman Glen Dowden, in uniform and on duty, was patrolling in a police car on East Third Street. He saw a man and a woman straggling together on the street. As he reached the couple, the officer heard loud voices and the parties were using profane language. Officer Dowden drove his car slightly pass (sic) the couple and backed up to where the struggling man and woman were standing. At this moment, the woman ran from the scene. Officer Dowden stopped his car and as he got out spoke to the man and told him he was under arrest.
The man, who was later identified as the plaintiff, Jimmie Lee Bernstine, told the officer he would not submit to the arrest. Officer Dowden repeated to plaintiff that he was under arrest and when the plaintiff further argued and refused to follow directions of the officer, the officer sort (sic) to place handcuffs on plaintiff. Plaintiff resisted, struck Officer Dowden in the face with his fist and following this up with the (sic) hitting Officer Dowden on the left side of his head with a 16 ounce beer can filled with beer. The blow knocked the officer to the ground. The officer, while in a semi-prone position, pulled his gun. The first blow plaintiff struck the officer had broken and knocked off the glasses of Officer Dowden. The evidence shows the officer has very limited vision without the aid of his glasses. Officer Dowden saw what he thought was plaintiff leaning over him to again strike him. The officer stated that he only shot his weapon to frighten away from him the attacking plaintiff. The gun was pointed upward and the shot struck the inner and upper portion of plaintiff’s right arm.”

Our independant examination of the record discloses ample evidence which upon its considered evaluation as to credibility furnished a reasonable basis for the factual conclusions reached by the trial court.

In the instant case Sgt. Dowden sought to arrest plaintiff for a criminal offense committed in his presence. Plaintiff, instead of peacefully submitting to this lawful arrest, attacked the arresting officer striking him first with his fist and then with a 16 ounce can filled with beer. The second blow was so severe that the officer was knocked to the ground in a dazed condition. Plaintiff continued his attack. The officer then drew his pistol and plaintiff was unintentionally shot in the arm when the officer pointed his weapon upward and fired a warning shot in order to frighten plaintiff.

In Greening v. Hill et al., 221 So.2d 261, 263, writ refused 1969 (La.App. 2nd Cir.1969), which concerned a factual situation closely akin to that of the instant case, Judge (now Justice) Dixon stated as follows :

“Defendant’s attempt to arrest the plaintiff was lawful. The plaintiff was engaged in the commission of a crime (drunk driving) in the presence of the defendant. Plaintiff’s refusal to submit to a lawful arrest was the provocation upon which the defendant drew his revolver. To protect himself from violence, and to enforce the arrest, the defendant had the right to use his weapon.
However, the plaintiff suffered injury, not from an intentional shot, but from the accidental discharge of defendant’s weapon. The gun could hardly have been discharged unless defendant, in the heat of action, and as a nervous impulse, unwittingly squeezed the trigger. The question then becomes whether the plaintiff, who provoked the altercation which resulted in his injury, can recover when the police officer’s weapon accidentally discharged as the policeman was in the process of making a lawful arrest.
To ask the question is to answer it. A plaintiff cannot recover civil damages if he is at fault in provoking the difficulty in which the injury is received. Robertson v. Palmer, 74 So.2d 408 (La.App.1954); Britt v. Merritt, 45 So.2d 902 (La.App.1950).
The altercation that resulted in plaintiff’s injury was of his own making. He had created a hazardous situation, endangering the lives of those on the highway. His drunken condition and antagonistic reaction to the lawful arrest justified the defendant’s attempt to use his pistol to complete the arrest and to protect his person. Up to the time when the gun fired, every action of the plaintiff had been illegal, dangerous, and provocative; every action of the defendant had been consistent with the requirements of the law in the execution of his duty. A gun is a dangerous instrumentality and is subject to accidental discharge. Plaintiff himself created the situation that made it necessary for the defendant to resort to his weapon. The accident was regrettable, but foreseeable by the plaintiff under the circumstances, and one for which he cannot recover.”

Even were we to find that Sgt. Dowden intentionally shot plaintiff, as suggested by plaintiff, we would, under the circumstances of this case, deny recovery. It is well settled that one cannot recover damages for a battery if the evidence establishes that he was at fault in provoking the difficulty in which the injury complained of was received unless it be proved that the person attacked has used excessive force in defending himself. Tripoli v. Gurry, 218 So.2d 563, 253 La. 473, 218 So. 2d 563 (1969); Hemsley v. Sims, 325 So.2d 877 (La.App. 2nd Cir. 1976); Porche v. Fernandez, 286 So.2d 418 (La.App. 4th Cir. 1973); Flores v. Black, 260 So.2d 144 (La.App. 2nd Cir. 1972).

The record in this case clearly supports the conclusion that plaintiff was the aggressor; that Sgt. Dowden reasonably believed he was in danger of substantial bodily harm; and, that the force which he used to repel plaintiff’s attack was not unreasonably excessive.

From the facts as found by the trial court, in which findings we concur, it clearly appears that Sgt. Dowden acted reasonably under the circumstances and that plaintiff’s injuries resulted when he violently attacked the arresting officer in an attempt to avoid his lawful arrest. Under these circumstances plaintiff cannot recover civil damages for his injuries.

We next consider the correctness of the trial court’s award to plaintiff of the sum of $455.00, being the amount of the bill of Confederate Memorial Hospital for services rendered to plaintiff following the incident of June 28, 1974, and the court’s assessment of all costs to the defendant, City of Natchitoches. In making the above award to plaintiff the trial court, citing LSA-R.S. 15 :703 and West v. City of Ville Platte, 237 So.2d 730 (La.App. 3rd Cir. 1970), reasoned that a municipality has a statutory responsibility to furnish needed medical services to persons under arrest and in the City’s custody.

We do not reach the issue as to whether under the circumstances of this case the City of Natchitoches is responsible for the medical costs incurred by plaintiff at the Confederate Memorial Hospital for we determine, absent proof in the record that plaintiff paid for the medical services rendered to him, that this matter should be remanded to the trial court in order that Confederate Memorial Hospital may intervene, if it elects to do so, and assert a claim for the medical services rendered to plaintiff.

LSA-R.S. 46:8 grants to all charity hospitals in the State a right of subrogation to a patient’s claim against an alleged tortfeasor to the extent of reasonable charges for services rendered to the patient. LSA-R.S. 46:9 requires any person who has received treatment for injuries in any charity hospital and who files suit for the recovery of damages to cause a copy of the petition to be served on the hospital from which he received treatment and prohibits the courts of this state from proceeding with the trial of such suit until a copy of the petition has been served as required. LSA-R.S. 46:11.1 permits a charity hospital to intervene in a personal injury or workmen’s compensation suit at any time prior to judgment in order to recover costs of hospitalization and medical services. As stated in Times v. Wickman et al., 261 So. 2d 113, 117 (La.App. 4th Cir. 1972):

“The purpose of the statute is to insure payment to Charity Hospital rather than to benefit either the patient or the tort feasor.”

Since Confederate Memorial Hospital was not served with plaintiff’s petition as required by LSA-R.S. 46:9 we conclude that this matter should be remanded to the district court insofar as the medical bill of $455.00 is concerned in order that the hospital be served with a copy of the petition to the end that the latter may intervene and assert such rights as it may have under the provisions of the cited statutes. We are not unmindful of the several cases holding to the effect that a person who has received treatment from a Charity Hospital may sue for those expenses and recover judgment despite the prohibition of LSA-R.S. 46:9, Jordan v. Travelers Insurance Company, 231 So.2d 678 (La.App. 1st. Cir. 1970); Ledbetter v. Hammond Milk Corporation, 126 So.2d 658 (La.App. 1st Cir.1961); and Leonard v. Travelers Insurance Company, 183 So.2d 447 (La.App. 2nd Cir. 1966). We conclude, however, as did our brethren of the 4th Circuit in Times v. Wickman, supra, and Foxworth v. State Farm Mutual Automobile Insurance Company et al., 308 So.2d 348 (La. App. 4th Cir. 1975) that the statute should not be ignored but should be given effect.

As aforestated the defendant City has answered this appeal urging error on the part of the trial court in assessing it with all costs.

The trial court has wide discretion in the assessment of costs and may assess costs, or any part thereof, against any party, as it may consider equitable. LSA-C.C.P. Art. 1920, Ogaard v. Wiley, 325 So.2d 642 (La.App, 3rd Cir. 1975). We are most reluctant to overturn the trial court’s conclusion in regard to the assessment of costs. In this case, however, the trial court granted plaintiff part of the relief which he sought and cast the defendant City for all costs. Plaintiff’s partial success may have prompted the trial court’s determination in regard to the assessment of costs. It may be, depending upon the outcome of this matter on remand, that the trial court would want to reconsider the matter of costs. For this reason we will set aside that portion of the judgment which casts the defendant. City of Natchitoches, for all costs and order that the assessment of costs await the final determination of this matter on remand.

For the above and foregoing reasons the judgment of the trial court insofar as it awards plaintiff judgment against the City of Natchitoches in the amount of $455.00 with legal interest from date of judicial demand and all costs is reversed, in all other respects the judgment appealed from is affirmed. Further, this matter is remanded to the district court for the purpose of requiring service of a copy of plaintiff’s petition upon Confederate Memorial Hospital of Shreveport, Louisiana, and for further proceedings consistent with the views herein expressed. The costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    LOUISIANA HORTICULTURE COMMISSION v. Joe KUHARCIK.
    No. 7398.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.
    Joel B. Dickinson, Baton Rouge, Burgess E. McCranie, Jr., Lafayette, for plaintiff-appellee.
    Joseph Neves Marcal, III, New Orleans, for defendant-appellant.
    Before LEMMON, SCHOTT and MOR-IAL, JJ.
   MORIAL, Judge.

Defendant, Joe Kuharcik appeals from a judgment of the district court enjoining him from selling “pot plants” at any location other than 4154 State Street Drive in New Orleans, Louisiana.

On January 28, 1975 the Louisiana Horticulture Commission filed a petition for an injunction against defendant seeking to enjoin him from selling potted plants at locations other than 4154 State Street Drive, the address listed on the permit issued to him pursuant to LSA-R.S. 37:1961 et seq. In response to the petition, defendant filed an exception of no right and/or cause of action alleging the unconstitutionality on its face and in application of LSA-R.S. 37:1964. The court subsequently granted the injunction. Defendant appeals. We affirm.

The parties stipulated that the operations of the business were conducted at the State Street Drive address. However, it was admitted that most sales were made from a pickup truck at two other locations. The Commission contends that according to LSA-R.S. 37:1964C, defendant must obtain a permit for each location in which the “pot plants” are sold. LSA-R.S. 37:1964C provides as follows:

“C. A pot plant or nursery stock dealer shall not be required to obtain a license but shall be required to obtain a permit from the commission before engaging in business as a pot plant or nursery stock dealer, and shall pay in advance an annual fee of twenty-five dollars for each separate establishment or place of business operated by said pot plant or nursery stock dealer in which pot plants or nursery stock are sold and shall secure a renewal of such permit annually thereafter for an annual fee of twenty-five dollars as long as he conducts the business of buying and selling pot plants and nursery stock. The application for a permit shall be in writing and on forms which shall be prescribed by the commissioner.”

Defendant contends that the interpretation placed upon LSA-R.S. 37:1964 by the Louisiana Horticulture Commission is unconstitutional in that it results in the taking of his property without due process of law. Alternatively, he contends that if the interpretation given by plaintiff is correct, the act violates the equal protection clause of the Constitution of the United States.

The sale of “pot plants” is considered a professional service in the state. LSA-R. S. 37:1961C(7). LSA-R.S. 37:1964C and D specify that pot plant and cut flowers dealers are not required to obtain licenses. A “pot plant” dealer, however, must obtain a permit and pay a $25.00 annual fee for “each separate establishment or place of business” which he operates. A “cut flower” dealer must obtain a permit and pay a $25.00 annual fee for each outlet from which cut flowers will be sold. Further, LSA-R.S. 37:1968E(3) requires “pot plant” dealers to “ * * * have an established permanent address for each outlet, with facilities which will meet local building and sanitary codes * * This section also provides that “ * * * each pot plant . . . dealer shall obtain a separate permit for each establishment or place of business * * *.”

Defendant alleges that an interpretation of these statutes which requires him to obtain a permit for every place he sells his wares results in the taking of his property without due process of law. We believe, as did the trial court, that the statutes do not in any way violate defendant’s due process rights. The legislature, through its power to enact laws, may regulate businesses to protect the welfare and needs of the state’s citizens. As long as those laws bear some rational relation to their purported legislative object and purpose and are neither arbitrary nor discriminatory, due process is not violated. See Schwegmann Bros. Giant Mkts. v. McCrory, 237 La. 768, 112 So.2d 606, 616 (1959).

Acts of the legislature are presumed to be constitutional until they are shown to be unconstitutional. Under the clear wording of the statute defendant is required to obtain a permit for “each separate establishment or place of business” which he operates. Defendant has failed to in any manner demonstrate how this requirement has resulted in an unconstitutional infringement of his right of free enterprise. As noted by the trial court, “Mr. Kuharcik is not prevented from obtaining more than one permit. He is, however, restricted to sales only at the designated locations stated in the permit. The court is of the opinion that Mr. Kuharcik’s property is not being taken from him without due process of law.” We fully agree with this conclusion.

Defendant’s second argument centers around the differing treatment afforded to “pot plant” and “cut flower” dealers. LSA-R.S. 1961 et seq. Defendant alleges it is a violation of his constitutional guarantee of equal protection to permit “cut flower” dealers to obtain one permit and operate mobile carts throughout the city and on the other hand require “pot plant” dealers to obtain a permit for “each separate establishment or place of business.” He asserts that “pot plant” and “cut flower” dealers are similarly situated in that both are more in the class of salesman rather than persons engaged in the science or art of horticulture. Specifically, he argues that “pot plant” and “cut flower” dealers are engaged in the exact same activity, i.e., the sale of flora, with the only difference being that pot plant dealers place their flora in dirt while cut flower dealers place theirs in water.

Conceding arguendo that pot plant and cut flower dealers are similarly situated, we do not believe that the difference in the statutes results in invidious discrimination in violation of the equal protection clause of the United States Constitution. The United States Supreme Court in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) established some guidelines in dealing with charges of statutory denial of equal protection. The court therein stated:

“Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

We believe the legislature enacted these statutes in the exercise of the state’s police power for the protection of the public health and welfare. It is apparent the legislature in its wisdom recognized a greater distinction between “cut flowers” and “pot plants” than the simplistic difference noted by defendant, e.g., pot plants are rooted in soil and are viable at the time of sale. With proper care and treatment, they are expected to remain alive for indefinite periods. On the other hand, cut flowers are ephemeral. Beyond fleeting moments of beauty and fragrance they are lifeless. The differing treatment of “cut flower” and “pot plant” dealers is clearly founded upon rational considerations and does not result in unequal protection of the law.

Finding no constitutional infirmities in the statutory scheme, we hereby affirm the judgment of the trial court. Defendant is to pay all costs.

AFFIRMED.

      . LSA-R.S. 1963(12) defines a “pot plant dealer” as:
      “any person, firm, partnership or corporation, not a grower of pot plants, who buys or otherwise acquires pot plants for the purpose of selling or distributing the same independently of any control of the nurseryman and who does not engage in the planting of said materials or decorating with foil, crepe paper, ribbon or other decorative materials commonly used by florists.”

      . LSA-R.S. 1963(26) defines “outlet” as “ an individual cart, or permanent location.”


author: STOULIG, Judge.

text:
    BEAVER PRODUCTIONS, INC. v. William J. JOHNSTON, III, et al.
    No. 7499.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.

      Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for plaintiff-appellant.
    Pilié, Pilié & Landry, M. Arnaud Pilié, New Orleans, for defendant-appellee.
    Before REDMANN, ' STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Beaver Productions, Inc. (Beaver), filed suit to enjoin William J. Johnston, III, from engaging in rock and roll concert promotional activity and to prevent the other defendants from assisting him in these endeavors.

Plaintiff alleges that Johnston, formerly a stockholder and promotion man in Beaver, signed an agreement not to compete with plaintiff when he sold his stock in the corporation. Defendant Johnston admitted executing the agreement and engaging in promotional activities prohibited by it thereafter, but avers it is invalid because of the lack of serious consideration. The remaining defendants pleaded exceptions of no right or cause of action, which were referred to the merits.

From a judgment dismissing plaintiff’s suit, it has appealed.

Prior to 1975, Johnston, Brian Glynn and Don Fox were principal stockholders in Beaver, a corporation engaged in promoting and staging rock and roll concerts primarily in the New Orleans area. On January 2, 1975, after Don Fox had a fight with the art director, Johnston declared his intent to leave the company and sell his stock. Glynn and Fox agreed to buy him out. Daniel Lund, attorney for Beaver, was asked to prepare the necessary documents to effectuate the transfer, and at a conference at his office on January 27, 1975 the stockholders met to sign the following papers:

1. Minutes of a meeting of the board of directors noting Johnston offered to sell and the corporation rejected his proposal to transfer 301 shares of Beaver stock for $5,000, and resolving he could sell his stock to Glynn and Fox for the same consideration, and further resolving to pay Johnston the $3,000 indebtedness acknowledged due him from the corporation; and resolving to hold him harmless for any future corporate debts;
2. An offer to the corporation to sell stock for $5,000 and a written rejection by the corporation;
3. A letter of resignation by Johnston to the board;
4. A letter from Beaver to Johnston in which the corporation agrees to “hold you harmless from and against any and all liability or debts of the Corporation which may have been incurred heretofore”; and
5. An offer by Glynn and Fox to Johnston, which reads:
“We hereby offer to purchase your three hundred and one (301) shares of Beaver Productions, Inc. for the price and sum of Five Thousand ($5,000.00) Dollars, payable in full, in cash, on January 27, 1975, 150j4 shares to each of us.”

After the participants had executed the documents under Lund’s direction, Fox produced the noncompetition agreement ’ which is the subject of this lawsuit and directed Johnston to sign. Lund testified he had not prepared the agreement and had not been apprised of it before the sale of stock had been consummated. In fact he felt obligated to caution all present he was “rendering no opinions concerning the document.” It stipulates:

“AGREEMENT BETWEEN MR. WILLIAM J. JOHNSTON III AND BEAVER PRODUCTIONS, INC.
RE: Concert promotions
By this agreement between William J. Johnston and BEAVER PRODUCTIONS INC., I, William J. Johnston, agree that from this date, January 27, 1975 through January 26, 1980, that I will neither be a principle [sic] in a concert promotion company of any type nor will I act in such a manner as to promote concerts in the areas including Louisiana, Texas, Oklahoma, Missouri, Mississippi, Alabama, and Massachusetts.”

If we review the documents in light of what they recite, we obviously must conclude there was no consideration whatsoever flowing from the corporation to Johnston for the noncompetition agreement. The corporation rejected Johnston’s offer to sell it his stock for $5,000 and simply relieved him for any individual liability in connection with corporate debts. As a matter of law, he was never individually liable; therefore, Johnston derived no benefit from the “hold harmless” agreement. The instruments prepared by Lund recite $5,000 was paid as consideration for the sale of stock. There is nothing mentioned about a noncompetition agreement nor was Lund, who drafted the sales transaction papers, even made aware that such a stipulation was in the offing.

But were we to assume arguendo that the individual stockholders and the corporation were in fact one individual entity, the agreement not to compete must fail because it obviously is not supported by serious consideration nor is it confined to a reasonable area. Under the agreement Johnston would be bound not to promote rock concerts in a seven-state area for a period of five years. Appellant does not indicate what part of the $5,000 was tendered by plaintiff for the stock and what part was given for the agreement not to compete. Nor are we apprised of the value of the stock. The only evidence we have is that Beaver’s net earnings before taxes for 1974 was $107,600, and while this does not give a precise value as to one-third of the stock, it'Certainly indicates the corporation’s stock has some monetary value.

Appellant has cited numerous decisions in which agreements not to compete have been upheld by Louisiana courts; however, they are distinguishable because the agreement in these cases was supported by serious consideration. In fact in one of the cases cited, Desselle v. Petrossi, 207 So.2d 190, 192 (La.App. 4th Cir. 1968), the court reiterates the principles involved in a case of this nature as follows:

“The trial judge then applied the principles found in S. & R. Gas Company v. Stephens, 90 So.2d 487, 499-500 (La. App.2d Cir. 1956), wherein the court said:
“ ‘Counsel for defendant urges three general principles of law, with all of which we are in complete agreement.
“‘First: contracts in restraint of trade should be strictly construed; Railway Audit & Inspection Co., Inc., v. Pendleton, 175 La. 4, 142 So. 781; Simmons v. Johnson, La.App., 11 So. 2d 710.
“ ‘Second: contracts in restraint of trade should not be enforced unless supported by serious consideration, and,
“ ‘Third: where there is a dispute over the provisions as to the meaning of contract stipulations the instrument must be interpreted against the party by whom or for whom it was prepared.’ ”

Applying the first and second rule above quoted, we conclude the trial judge properly refused to grant the injunctive relief requested.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


author: LEMMON, Judge.

text:
    AETNA INSURANCE COMPANY v. H. J. HINTZ.
    No. 7468.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Garon, Brener & McNeely, Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.
    Kronlage, Dittmann & Caswell, Charles A. Kronlage, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   LEMMON, Judge.

This suit by Aetna Insurance Company, the subrogated fire insurer of a building owned by Rose Brener, seeks recovery against H. J. Hintz of the amount of damage sustained in a fire which Aetna alleged was caused by Hintz’s negligence. Aetna has now appealed from the dismissal of its suit after a trial on the merits.

Brener had employed Hintz to install the electrical wiring for two central air conditioning units in September, 1968, when the building was entirely renovated. Brener’s tenants thereafter complained of a clattering in the condensing unit, which was replaced twice. In October, 1971 a fire occurred, causing the damage upon which this litigation is based.

The principal fire damage was at the rear wall, just above the air conditioning condensing unit located on the outside of that wall. The cause of the fire was undoubtedly of electrical origin.

Two electrical defects or faults were found in the electrical wiring, and the ground wire had actually burned through and separated at the location of each fault. The upper fault was located in the electrical wire which lay on top of the wall plate (the horizontal timber at the top of the stud partition wall), at the point where Hintz had attached the wire by using a crimped nail, and the lower fault was located in the same electrical wire where it was dropped down between the vertical studs of the partition wall, at the level just above the disconnect switch which served the condensing unit. Either fault, by itself, could have caused the fire.

On appeal Aetna contends that the evidence preponderates in its favor, since it proved the upper fault was caused by Hintz’s improper use of a crimped nail, while the cause of the lower fault was not provable because of the effects of the fire.

At trial each side presented an expert electrical engineer experienced in investigating the origins of fires. George Hero had examined the premises after the fire. He found an area of copper beading about eight inches on either side of the break at the lower fault and concluded that arcing had occurred and generated heat for several minutes. At the upper fault only one bead had formed, but since the wire had burned through and since there was no other copper melted in the area except under the nail, he opined that arcing had also occurred there.

Hero attributed the upper fault to Hintz’s use of the crimped nail instead of an approved staple, allegedly in violation of the electrical code, explaining that use of a nail can cause concentration of pressure at one point and ultimate damage to the insulation. He concluded that an intermittent short had occurred in thisi area (explaining the intermittent clattering in the condensing unit), and that when the ground conductor burned loose at the nail, the short circuit was reestablished, and arcing occurred when the ground current found its way to ground through the metal pipes of the air conditioning system. His “simple answer” for the cause of the lower fault was that the wire in the stud' space was pierced by a nail of unknown origin or that some other damage of unknown origin had occurred in the insulation of the wiring. He concluded that arcing had occurred at both faults, but opined that the upper fault was the more probable cause of the fire, because intermittent shorting at that point was also the logical explanation for the clattering of which the tenants had complained.

Joseph Leininger, on the other hand, had not inspected the premises, but did examine photographs (taken shortly after the fire) of the wiring in the area of both faults. He opined that if a short circuit had occurred in the upper area at the nail, no further energy would have been transmitted to the area of the disconnect switch, and the lower condition would not have occurred. He explained, however, that if the fire had originated in the area of the disconnect switch, the rising heat could have caused the nail (with a higher melting point than copper) to absorb and transmit heat, in turn causing the copper wire to burn through and separate near the nail. Furthermore, he found no evidence of arcing in the photographs of the wire break near the nail. He stated his opinion, based on the history, the photographs and the pattern of the burning, that the fire had originated in the rear wall near the disconnect switch, where the extensive beading was found, and that external heat had caused the relatively clean break in the wire at the location of the nail. In effect, he believed it was more probable that the fire caused the upper fault than that the upper fault caused the fire.

Aetna had the burden of proving that Hintz’s negligent act or omission caused the fire. The evidence in this case at best established that Hintz’s use of a crimped nail could cause a fire; the evidence taken as a whole, however, did not establish that Hintz’s conduct more probably than not caused this fire. It was at least equally probable (and in our view more probable) that the fire originated at the lower fault, for which Hintz was not shown to be responsible, and that the heat of that fire caused the break in the conductor at the nail.

The judgment is affirmed.

AFFIRMED.

      . The No. 8 Romex wire consisted of an outer jacket or cover which enclosed an uninsulated ground wire and two insulated conductor wires.

      . The electrical code requires that wire in exposed walls be secured to the side of the stud, but excepts wiring in concealed work in finished buildings, where the wire may be fished through between points of access.
      The evidence in this case indicated that both the interior and exterior walls were closed when Hintz installed the wires, except above the eight-foot level to which the high ceilings were lowered during the remodeling then in progress. It was thus necessary that Hintz drop the wire from above into the space between the studs and fish the wire through to the point of access at the disconnect switch.

      .Nevertheless, Hero testified:
      “My opinion of the cause of the fire was the arcing of the conductors within this wall which was directly above the unit.”
      He also admitted that piercing of the wire at the disconnect switch could also have caused intermittent clattering.

      . Leininger testified that the nail, in order to cause such a problem, would have had to initially break the insulation of one of the live wires.


text:
    VALVOLINE OIL COMPANY, Plaintiff-Appellee, v. Edward E. KRAUSS, Jr., et al., Defendant-Appellees-Defendant-Appellant.
    No. 5517.
    Court of Appeal of Louisiana, Third Circuit.
    July 1, 1976.

      Patrick H. Wright, Jr., Monroe, and William G. Avery, Jonesville, for defendant-appellant.
    Smith, Taliaferro, Seibert & Boothe, by J. W. Seibert, III, Jonesville, for defendant-appellee.
    Armand F. Rabun, Farmerville, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

This is a concursus proceeding filed by Valvoline Oil Company the purchaser of oil from a well drilled by Munoco Company in SW/4 of NW/4 Section 24, T.10 N., R.6 E., Catahoula Parish, Louisiana, to have determined the ownership of royalties allocable to a interest (hereafter referred to as the Krauss interest) and a J4oth interest (hereafter referred to as the Tigner interest) in such property. The title dispute surrounding the Krauss interest is unconnected with and bears no relation whatever to the title dispute surrounding the Tigner interest except that such interests stem from a common author in title. This matter was tried in the lower court only insofar as the Krauss interest is concerned, the matter insofar as the Tigner interest is concerned being still pending. On December 19, 1974 the trial court rendered judgment adjudicating the controversy as to the Krauss interest and ordered that the monies in the registry of the court allocable to the Tigner interest remain so deposited pending further judgment of the court. Although this matter has only been partially tried in the lower court the judgment of December 19, 1974, is a final appealable judgment insofar as it constitutes a complete adjudication as to the Krauss interest, the tKal court retaining jurisdiction in the instant matter for the purpose of adjudicating the controversy surrounding the Tigner interest. See Devillier v. City of Opelousas, 243 So.2d 118 (La. App. 3rd Cir. 1971).

The dispute as to the ownership of a i/¿ interest in the described acreage and which prompted the filing of this concursus proceeding arises as a result of the following, R. A. Stothart, husband of Josephine Stot-hart acquired a full interest in the property from Stewart Realty Company Inc. by deed dated January 9, 1942, recorded in Book 48, folio 452 entry number 30671 records of Catahoula Parish, Louisiana. Presumably, following his acquisition of the property R. A. Stothart encountered some financial difficulty as a result of which he entered into an agreement with Edward E. Krauss Sr. and H. G. Tigner which provided for a rather complex series of transactions designed to culminate in Krauss Sr.’s acquisition of the property at foreclosure sale following which Krauss Sr. was to deed a one-half interest in the property to H. G. Tigner, as trustee. One-half of the interest deeded to Tigner, as trustee, was to be retained by him for himself and his unnamed associates and the other one-half or a one-quarter interest in the property was to be held in an undisclosed trust for the benefit of R. A. Stothart. This agreement is dated January 8, 1947 and has never been recorded. A copy of this agreement was introduced in evidence as exhibit K-l without objection there being no explanation given as to the whereabouts of the original.

On September 10, 1947 R. A. Stothart instituted suit in the District Court of Tulsa County, Oklahoma, seeking a divorce from his wife, Josephine Stothart. The suit referred to bears number D42175 of the docket of that court. On the same day, i. e., September 10, 1947, R. A. Stothart and his wife entered into a separation agreement and property settlement. This agreement reads in pertinent part as follows:

“. . . As to all other property of every kind and character, real, personal or mixed, now owned by the parties jointly or separately, or hereafter acquired by either party, and wheresoever located, shall become and be the separate property of the party in whose name the title now stands, or is taken of record, or has the possession thereof; and the respective owner of such separately owned property as herein defined shall have full and complete authority and right to manage and control same without interference by the other party, and shall also have the right to sell, mortgage, or lease for agricultural, grazing or oil and gas purposes, or otherwise to dispose of the same, or any part thereof, without the joinder of the other party in any instrument of conveyance, mortgage or lease thereof.”

On the 4th day of June, 1948, Mrs. Josephine Stothart, appeared in the aforesaid suit, and through counsel, filed answer alleging execution of the separation and property agreement of September 10, 1947 and specifically requested that portions of such agreement (those making reference to custody and support) be made a part of the final decree to be entered by the Oklahoma Court. Mrs. Stothart verified the answer by her sworn acknowledgment and annexed a certified copy of the separation and property agreement thereto. The certified copy of the agreement annexed to Mrs. Stoth-art’s answer does not bear her signature but only that of Mr. Stothart. On July 14, 1948 judgment was rendered in the referenced matter dissolving the marriage between R. A. and Josephine Stothart. This judgment states as follows in regard to the property settlement agreement:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the separation agreement and property . settlement made and entered into on the 10th day of September 1947 between plaintiff and defendant, and made a part hereof by reference, be and the same is hereby ratified, approved and confirmed and made the judgment of this court,

A complete certified copy of the entire divorce proceeding was introduced in evidence at the trial of the instant matter as exhibit K-2.

On September 19, 1951 R. A. Stothart conveyed the subject forty acre tract to Edward E. Krauss Jr., such deed being recorded in the records of Catahoula Parish in Book 61 at folio 276. (See exhibit K-4). Following his acquisition as aforesaid and on March 14, 1958 Edward E. Krauss Jr. conveyed a 14th interest in said land to H. G. Tigner and others.

In July of 1969 William C. Nolan acquired oil, gas and mineral leases covering the disputed tract from Edward E. Krauss Jr. and from Josephine Stothart McDaniel, and her two children, Robert Austin Stoth-art and June Elizabeth Stothart Hodge, which leases were assigned by Nolan to Munoco Company. The lease granted by Krauss provides for the retention by lessor of a 1/6th royalty and that executed by the Stotharts provides for the retention by lessors of a 14th royalty. Munoco Company drilled a well on the subject tract which was completed as a commercially producing oil well on the 11th of June, 1971. Plaintiff, Valvoline Oil Company, began the purchase of production from the aforesaid well after its completion and because of the title dispute between Edward E. Krauss Jr. and the Stotharts instituted this concursus proceeding. Plaintiff has paid to E. E. Krauss Jr. the royalties attributable to a j4th interest (14 x or a .041667) but deposited the royalties attributable to a 14 interest (14 x 14 or .083333) in the registry of court pending a determination of the conflict as between Krauss and the Stotharts.

In his answer to the petition of plaintiff Krauss alleged that his vendor R. A. Stothart acquired the subject tract from Stewart Realty Company Incorporated; although lilis land formed part of the community of acquets and gains which existed between R. A. Stothart and Josephine Stothart McDaniel, the former acquired the one-half interest of the latter in the property settlement agreement dated September 10, 1947, which was later confirmed by judgment of court dated July 14, 1948; and, by virtue of the deed to him from R. A. Stothart dated September 19, 1951 he acquired a full interest in the subject property. Krauss further alleged in answer .that R. A. Stothart died on September 15, 1955 and that regardless of the fact a full interest in the subject tract was placed in his name, one-fourth of said property was in truth and fact owned by Robert A. Stothart and now belongs to his two children, Robert Austin Stothart and June Elizabeth Stothart Hodge. In this latter connection we digress at this point to note that by judgment of possession rendered in the matter of the Estate of Robert A. Stothart, No. 466 of the docket of the Seventh Judicial District 'Court for the Parish of Catahoula, the two children above named were recognized as the sole and only heirs of the decedent.

The Stotharts filed answer and allege that the subject property formed part of the community of acquets and gains which existed between R. A. and Josephine Stot-hart; that there never was a partition of the community the settlement agreement confirmed by the Oklahoma court never having been signed by Mrs. Josephine Stothart and being only a proposed settlement; that such agreement is otherwise invalid by reason of fraud; and, defendants, Robert Austin Stothart and June Elizabeth Stothart Hodge are owners of a one-fourth interest by virtue of the judicial admission contained in the answer of Edward E. Krauss Jr. Accordingly, these defendants contend that they collectively own an undivided 54th interest in the subject land, Mrs. Josephine Stothart owning a interest and the Stothart children a 14th interest.

Without assigning reasons the district court decreed the disputed interest in the subject tract to be owned i/> by E. E. Krauss Jr. and 14 by the Stothart children and accordingly ordered the lessors’ royalty under the Munoco leases allocable to this interest to be distributed as follows:

“Edward E. Krauss, Jr., husband of Beverly Nussbaum Krauss_041667
June Elizabeth Stothart Hodge.015625
Robert Austin Stothart .015625
Munoco Company .010416

The court further recognized the above named parties as owners of that part of the fund on deposit attributable to their interest.

Mrs. Josephine Stothart McDaniel has appealed devolutively from the trial court judgment. The other parties, E. E. Krauss Jr., June Elizabeth Stothart Hodge, Robert Austin Stothart, Munoco Company, and Valvoline Oil Company have neither appealed nor answered the appeal of Mrs. Stothart.

Appellant urges that the trial court erred in finding that appellant was divested of her community one-half interest in the subject land either by the unrecorded agreement of January 9, 1947 or by the property settlement agreement of September 10, 1947. Appellant suggests the invalidity of both documents on several grounds. We first address ourselves to the settlement agreement of September 10, 1947 for if this agreement sufficed to divest appellant of her interest in the subject land any issue as to the validity or invalidity of the unrecorded agreement of January 9, 1947 is moot.

At the outset we observe that this matter is to be determined in accordance with the procedural rule contained in LSA-C.C.P. Article 3654 which provides as follows:

“When the issue of ownership of immovable property or of a real right is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right is so presented, the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right in a possessory action, unless the adverse party makes out his title thereto; or
(2) Who proves better title to the immovable property or real right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.

In the instant case since neither party relies on possession to support their respective claim judgment must be rendered in favor of the party who proves a better title to the real interest in dispute. In the instant case the adverse claimants deraign their respective title claims to a common author and therefore it was unnecessary for either to present a showing of title beyond that common author. Moore v. Blount, 160 So. 319, (La.App. 2nd Cir. 1935); Gaylord Container Corp. v. Stilley, 79 So.2d 109, (La.App. 1st Cir. 1955); Magee v. Booty, 47 So.2d 828, (La.App. 1st Cir. 1950); Brown v. Mayfield, 45 So.2d 912, (La.App. 2nd Cir. 1950). Considering the documentary and other evidence presented judgment must be rendered in favor of Krauss if we find that the settlement agreement or unrecorded agreement of January 9, 1947 was sufficient to divest Mrs. McDaniel of her community interest in the subject land or vice versa if we find that these agreements were insufficient or otherwise invalid.

THE PROPERTY SETTLEMENT AGREEMENT OF SEPTEMBER 10, 1947

Presumably the trial court determined that the property settlement agreement of September 10, 1947 was valid and sufficed to divest Mrs. McDaniel of her community one-half interest in the subject property. Appellant takes issue with this determination and urges that the trial court erred because:

(a)It was not shown that Mrs. Stothart executed the settlement agreement, the certified copy thereof bearing only the signature of R. A. Stothart;
(b) The settlement agreement and Oklahoma judgment do not contain a description sufficient to transfer real estate; and,
(c) The settlement agreement is otherwise invalid by reason of fraud.

Mrs. Stothart’s contention that she is not bound by the settlement agreement because the evidence fails to show that she executed same must fall because she has judicially confessed to the contrary. As aforestated, Mrs. Josephine Stothart McDaniel appeared in the Oklahoma divorce suit instituted by her husband and by verified answer admitted execution of this agreement. In article 3 of her aforesaid answer (K-2) she stated as follows:

“That on the 10th day of September, 1947, the parties plaintiff and defendant entered into a separation and property agreement . .
That a copy of such “separation and property agreement”, duly verified, is also shown on Exhibit A, which is hereto attached and made a part hereof.”

Pursuant to the last quoted allegation Mrs. McDaniel annexed as Exhibit “A” to her answer a certified copy of such agreement.

LSA-R.C.C. Article 2291 provided follows :

“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.”

In discussing the concept of estoppel by judicial admission our Supreme Court stated in J. H. Jenkins Contractors, Inc. v. Farriel 261 La. 374, 259 So.2d 882, pg. 890 (1972):

“As a legal concept, the judicial confession is designed to dispense with evidence. It has the effect of withdrawing the subject matter of the confession from issue. * * * In the landmark case of [Farley v.] Frost-Johnson Lumber Co., supra, [133 La. 497, 63 So. 122], this Court pointed out that Article 2291 refers only to the confession made in the suit, that is, in the pleadings, or note of evidence, ‘for the purpose of dispensing from taking evidence * * ” Jackson v. Gulf Insurance Company, 250 La. 819, 199 So.2d 886 (1967).
A litigant is estopped or bound by allegations of fact in his pleadings, but not by allegations which are only pronouncements or conclusions of law. Scurria v. Russo, La.App., 134 So.2d 679; Lawrence v. Recoulley, La.App., 235 So.2d 437. However, “While a judicial confession under LSA-C.C. art. 2291 is defined as a declaration which a party makes in a judicial proceeding and is full proof against him, he is not estopped from contradicting his sworn allegations in the absence of a showing that his adversary was misled or deceived by reason of the averment. * * * ” Mouledous v. Poirier, La.App., 221 So.2d 291 (1969). Also, a judicial admission in a pleading is not binding when made through an error in fact, such as through ignorance of or a misapprehension of the true facts. Modicut v. Rist, La.App., 98 So.2d 268; Gros v. United States Fidelity & Guaranty Company, La.App., 183 So.2d 670.”

In the instant case Mrs. McDaniel clearly confessed to having executed the agreement of September 10, 1947 in her answer in the Oklahoma divorce suit. The plaintiff in that matter clearly relied on this admission for he later sold the subject land as sole owner thereof to Edward E. Krauss Jr. Mrs. McDaniel has not presented any evidence in the instant matter to show that such judicial admission or confession was made as a result of ignorance of or a misapprehension of the true facts. Accordingly, we must hold that Mrs. McDaniel is now estopped to deny that she executed the agreement of September 10, 1947.

Although the settlement agreement was entered into by the parties prior to dissolution of the community and in contravention of LSA-R.C.C. Articles 1790 and 2446 our courts have recognized the validity of such agreements if same are incorporated in the judgment of divorce. The divorce decree rendered by the Oklahoma court as aforesaid contained language approving, confirming and making the provisions of such agreement a part of the decree. In Sheard v. Green, 219 La. 199, 52 So.2d 714, pg. 716, (La.1951) the Supreme Court in referring to the effect of an agreement such as that involved in the instant matter stated:

“Under our law, such a contract as the one involved in this suit would be absolutely null and void if entered into prior to judicial separation or divorce. Civil Code Articles 1790, 2446; Guillot v. Guillot, 141 La. 86, 74 So. 704; Marks v. Loewenberg, 143 La. 196, 78 So. 444; Russo v. Russo, 205 La. 852, 18 So.2d 318. The only way such an agreement under our law is binding is to have it incorporated in the judgment of divorce or have it entered into subsequent to the dissolution of the marriage community. The attack on the contract in this case under Louisiana law is an attack on the judgment of divorce and the only question that this court can consider with respect to a divorce decree of a sister state is the jurisdictional requirement of domicile. Navarrette v. Laughlin, 209 La. 417, 423, 24 So.2d 672 and cases cited therein.”

In Pilcher v. Paulk, 228 So.2d 663 (La.App. 3rd Cir. 1969) this court recognized that the courts of this state will sustain the validity of such a property settlement if it is incorporated in the judgment of the court.

Appellant next suggests that the property settlement agreement is invalid and ineffective because it fails to specifically describe the subject land. Appellant cites the case of Beatty v. Vining, 147 So.2d 37 (La.App. 2nd Cir. 1962) in support of this contention.

The property settlement argeement does not specifically describe the subject tract however, by general description it purports to convey to each party such real property wheresoever situated in whose name the title then stood. Title to the subject tract as of September 10, 1947 stood in the name of R. A. Stothart.

In Beatty, supra, the court was concerned with the effect of a general conveyance in a partition instrument between a former husband and wife which, after a specific conveyance of described properties to the parties, purported to convey to the husband all “other real properties in East Carroll and Morehouse Parishes . . . ” The general conveyance became important when it was discovered that a 100 acre tract in one of the aforesaid parishes had been omitted from the partition deed. In Beatty, supra, our brethren of the second circuit did determine that this general conveyance was without effect, insofar as it purported to convey the wife’s community one-half in the 100 acre tract to the husband and in so concluding stated:

“In order for a deed to be translative of title, there must be some sort of a description of the land so that it may be identified. Richardson & Bass v. Board of Levee Commissioners, 226 La. 761, 77 So.2d 32; Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225.”

We believe that our esteemed brethren fell into error in Beatty, supra. The cases cited in Beatty, i. e., Richardson & Bass v. Board of Levee Commissioners, supra, and Waterman v. Tidewater Associated Oil Company, supra, support the proposition that a deed which is not translative of title by reason of inadequate description will not support a plea of ten year acquisitive prescription. In the instant case we are not concerned with prescription nor with the rights of third persons, rather we are solely concerned with the effectiveness of this general conveyance as between the parties to the agreement. The decision of our Supreme Court in the case of Williams v. Bowie Lumber Company Ltd., 214 La. 750, 38 So.2d 729 (La. 1949) is dispositive of the issue presented. In Williams, supra, speaking to this specific issue the court stated:

“The main contention of the defendant is that the deed from Martin to Downman transferred the land in controversy, even though it was not particularly described therein, in view of Martin’s expressed intention to convey ‘all of the property owned by him in the Parish of La-fourche’ except certain described land in Section 15 and all land in Section 8.
We think that the point is well taken for the reason that, as between the parties to the contract and their privies, a sale of real property by an omnibus designation is just as effective and binding as though the lands were specifically described.
Under our law, the only prerequisite of form relative to the sale of an immovable is that it must be made by authentic act or under private signature. Article 2440 of the Civil Code. As between the parties, the contract of sale is perfected when three circumstances, the thing, the price and the consent, concur. Article 2439. In the case at bar, all of the essentials appear, i. e., conveyance by Martin of all of the property owned by him in Lafourche Parish (with certain specified exceptions), the price and the consent of the vendor and vendee. And, since Martin’s intent to convey everything he owned is clearly expressed in the deed, there is no reason to look beyond the four corners of the contract for interpretation. Article 1945 of the Civil Code provides that ‘Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them’ and that the intent ‘is tO' be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.’
Counsel for plaintiffs nevertheless maintain that the clause relied upon by defendant is meaningless and invalid because of the lack of a detailed description of the lands and that, therefore, it conveys absolutely nothing. In support of this proposition, reliance is placed in Baldwin v. Arkansas-Louisiana Pipeline Co., 185 La. 1051, 171 So. 442; McCluskey v. Meraux & Nunez, La.App., 188 So. 669; Cupples v. Harris, 202 La. 336, 11 So.2d 609; Snelling v. Adair, 196 La. 624, 199 So. 782; Reynaud v. Bullock, 195 La. 86, 196 So. 29; United Gas Public Service Co. v. Mitchell, 188 La. 651, 177 So. 697 and Daigle v. Calcasieu. Nat. Bank, 200 La. 1006, 9 So.2d 394, 395.
The adjudications depended on do not support the contention of counsel and are not applicable to the situation presented here. All of those cases involved the rights of third persons and they are authority only for the proposition that a sale with an omnibus description does not supply notice to third persons who acquire an adverse interest in the lands. This was clearly pointed out in Daigle v. Calcasieu Nat. Bank, supra, where we remarked that, whereas Articles 3306 and 3307 of the Civil Code require precise description as one of the essentials for the validity of a conventional mortgage, there is no specific article of the Code with such a prerequisite as to sales. But, after referring to Articles 2251 and 2259, dealing with the registry of authentic acts by notaries in the Parish of Orleans and those in other parishes, and many authorities, the Court resolved that, to bind third persons, the act must contain a description of the immovables and concluded thus:
‘It seems to be settled now by the jurisprudence in Louisiana that such a vague and indefinite description, in an instrument purporting to convey title to real estate, as all of the land owned by the seller in a named parish, is not sufficiently specific to give notice to third parties thereafter dealing with the seller.’
We did not say that such a description rendered the sale invalid as between the immediate parties thereto. On the contrary, we merely held that an omnibus description does not provide adequate notice to third parties.”

The legal proposition that as between the parties an omnibus designation in a deed is just as effective and binding as though the lands were specifically described appears to be now well settled. See Tucker v. New Orleans Laundries Inc., 145 So.2d 365 (La.App.4th Cir. 1962, writ refused December 10, 1962); O’Meara v. Broussard, 162 So.2d 777 (La.App. 1st Cir. 1964, writ refused June 8, 1964); Cattle Farms Inc. v. Abercrombie, 211 So.2d 354 (La.App. 4th Cir. 1968). For the above reasons we conclude that the settlement agreement is not invalid for want of a specific property description.

Appellant finally contends that the settlement agreement is invalid by reason of fraud. There is no evidence whatever that appellant’s former husband perpetrated a fraud upon her. Suffice it to say in this regard that fraud is never presumed and must be proven by strong, convincing proof, not simply by a preponderance of the evidence. St. Mary v. St. Mary, 175 So.2d 893 (La.App. 3rd Cir. 1965); Teche Concrete Inc. v. Moity, 168 So.2d 347 (La.App. 3rd Cir. 1964); Vestal v. Vestal, 227 So.2d 634 (La.App. 3rd Cir. 1969).

We observe that the appellee Edward E. Krauss Jr. acquired the real interest here in controversy some twenty-five years ago. During all this time appellant made no claim of ownership thereto. Pertinent to this observation is the following well recognized principle that belated claims are not favored:

“The genius of our law does not favor the claims of those who have long slept on their rights and who, after years of inertia, conveying an assurance of acquiescence in a given state of things, suddenly wake up at the welcome vision of an unexpected advantage and invoke the aid of the courts for relief, under the effect of a newly discovered technical error in some ancient transaction or settlement.” Lafitte, Dufilho & Co. v. Godchaux, 35 La.Ann. 1161, 1163 (1883); Sun Oil Co. v. Roger, 239 La. 379, 118 So.2d 446 (1960); Succession of Seals, 243 La. 1056, 150 So.2d 13 (1963).

We conclude that appellant has no interest in the property in controversy such interest as was owned by her having been effectively conveyed to R. A. Stothart in the property settlement agreement of September 10, 1947.

For the above and foregoing reasons the judgment of the trial court is affirmed, all costs of this appeal to be borne by appellant, Josephine Stothart McDaniel.

AFFIRMED.

      . In this proceeding plaintiff deposited in the court registry royalties allocable to the largest of the lessor’s royalty retained under the conflicting leases, i. e., %th. The interest recognized as belonging to Munoco Company is the difference between the royalty deposited, allocable to a 34th interest, and the royalty due under the Stothart leases, i. e., Ya th.


author: BOLIN, Judge.

text:
    MAXWELL MOTORS, INC., Plaintiff-Appellee, v. Fred DAVIS, Defendant-Appellant.
    No. 12935.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    Hal R. Henderson, Arcadia, for defendant-appellant.

      Emmons, Henry & Reeves, by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appel-lee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Maxwell Motors, Inc., sued Fred Davis for the unpaid balance due on a chattel mortgage note. The note and mortgage were executed in connection with an alleged sale of a truck from plaintiff to defendant. Defendant answered denying liability and seeking rescission of the sale. Defendant also reconvened for $306, the amount paid by him on the note. Following trial the lower court for brief written reasons rendered judgment for plaintiff as prayed for and defendant appeals.

The primary question on appeal is whether the transaction between Maxwell Motors and Davis constituted a valid sale of the truck, entitling the seller to enforce payment from the buyer under the note and chattel mortgage given as security for the unpaid purchase price.

We find the facts as follows:

On February 27, 1974, plaintiff sold defendant a 1971 model truck for a price of $3,197. Defendant was credited with $650 as the trade-in value of an old truck. In payment for the 1971 truck defendant executed a promissory note and chattel mortgage in the face amount of $3,672, representing the net sale price of $2,547 plus finance and insurance charges. On the date of the sale defendant did not surrender possession of the old truck to plaintiff because he had to obtain the certificate of title to same.

Additionally, plaintiff agreed to make some repairs to the truck. Within , a few days following the original agreement plaintiff made the repairs to the truck but defendant informed plaintiff he was unable to secure the title certificate to his old truck. Plaintiff and defendant agreed that plaintiff would accept $500 cash in lieu of the trade-in of defendant’s old truck. Defendant being unable to secure the $500 cash payment, plaintiff offered to finance this amount if defendant would offer additional security by giving plaintiff a second mortgage on his home. The parties were unable to agree on this latter suggestion. Defendant insisted that he wanted the truck and plaintiff made several proposals to finance the down payment.

During this period of negotiation the truck remained in the possession of plaintiff and defendant made two monthly payments on the chattel mortgage note. Defendant having failed to make the down payment and having become delinquent in his installment payments under the mortgage, plaintiff filed suit by ordinary process on the'note and chattel mortgage for the full amount of the note. Suit was not instituted for the alleged balance due for the down payment.

On appeal, defendant argues the sale should be rescinded and his payments on the note returned to him for plaintiff’s failure to comply with its obligation to deliver the truck as required by Civil Code Article 2475:

The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.

Defendant contends plaintiff cannot enforce the contract of sale without having complied with the seller’s obligation to deliver the thing sold.

On the other hand plaintiff contends the contract of sale was complete under C.C. Art. 2456 which provides the sale is perfect “as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.” Plaintiff argues C.C. Art. 2475, on which defendant relies, must be read in conjunction with C.C. Arts. 2485 and 2487:

Art. 2485. If the seller fails to make the delivery at the time agreed on between the parties, the buyer will be at liberty to demand, either a canceling of the sale, or to be put into possession, if the delay is occasioned only by the deed of the seller. (Emphasis added)
Art. 2487. The seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted him any term for the payment.

Plaintiff contends the delay in delivery was occasioned by agreement of the parties and not “only by the deed of the seller.” Furthermore, plaintiff argues it was not required to make delivery of the truck until the price, i. e., the down payment, was paid.

From our review of the record, we find the parties agreed plaintiff would keep the truck while defendant attempted to raise enough money to make the down payment and that defendant never paid the down payment.

Accordingly, we hold plaintiff did not breach its obligation to deliver the truck, which would have entitled defendant to a rescission of the sale; there was a perfected sale of the truck by plaintiff to defendant despite the fact of non-delivery.

Although we affirm the trial court’s judgment on the issue of liability, we conclude the amount of the award must be reduced because it does not reflect a refund of unearned finance and insurance charges as required by Louisiana Revised Statutes 6:958. We calculate that amount to be $575.59.

For the reasons assigned the judgment of the lower court is amended to reduce the amount from $3366.00 to $2790.41; as thus amended, it is affirmed.

Appellee is assessed with the cost of this appeal.


author: PAVY, Judge.

text:
    Thomas C. MORRIS, Plaintiff-Appellee-Appellant, v. Daisy Bel GUIDRY et al., Defendants-Appellants-Appellees.
    No. 5543.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 1976.
    Rehearing Denied Aug. 4, 1976.

      Holt & Woodley, by Edmund E. Wood-ley, Lake Charles, for defendant-appellant-appellee.
    Peter A. Ciambotti, Lake Charles, for plaintiff-appellee-appellant.
    McHale & Bufkin, by Louis D. Bufkin, Lake Charles, for defendant-appellee.
    Before MILLER, DOMENGEAUX, and PAVY, JJ.
   PAVY, Judge.

Plaintiff sued Edward Quinn, Mrs. Daisy Bel Guidry and her insurer, Travelers Insurance Company, for injuries sustained when Quinn, acting as bartender in Mrs. Guidry’s lounge, threw a bottle at plaintiff. The case was tried by a jury which made special findings of fact. When the jury’s special findings were returned, the trial judge ordered a dismissal of plaintiff’s suit against all defendants. After hearings on that issue, the trial judge rendered judgment rejecting the claim against Quinn, but awarding $9,350 to be paid by defendant Mrs. Guidry and her insurer. Plaintiff appealed the dismissal of his claim against Quinn. Mrs. Guidry and her insurer appealed the judgment against them. „

About mid-afternoon, plaintiff met an acquaintance, David Poche, and four of his companions in a lounge. Most of the group were teenagers or persons in their early twenties who were either in college or had just completed college studies. They had been drinking for some time. One of them had had eleven drinks. Defendant Quinn was a veteran seaman who entertained very strong views on certain subjects and was especially outspoken about them, particularly the race problem. He apparently afforded amusement to the college crowd around Lake Charles. The Poche group decided to seek him out and proceeded, along with plaintiff, to his former bar. This place had been closed for some time, and the group, thinking that Quinn would be at Mrs. Guidry’s place, proceeded there. As they entered the bar, Mrs. Guidry went to her living quarters which were built in the same structure as the bar. Quinn commenced to serve drinks to the group. The conversation was normal for about ten to fifteen minutes, at which time it turned to the race problem. All the parties were Caucasians. Suddenly, the conversation became loud and emotional, and at some point, Quinn threw a Sprite bottle at plaintiff. It hit plaintiff’s beer bottle. Both bottles shattered and plaintiff received several substantial cuts about his face and head. Quinn claims that plaintiff was in the process of throwing his beer bottle at him (Quinn), and that his actions were in self-defense. Plaintiff denied attempting to throw at Quinn or making any such menacing movement.

Besides fixing the amount of damages, the jury found that plaintiff was struck by a bottle as a result of the intentional or negligent acts of Quinn, that Quinn acted in self-defense, that Quinn was acting as an employee of Daisy Bel Guidry at the time, that Daisy Bel Guidry was negligent, and her negligence was the proximate cause of the incident.

Plaintiff’s counsel contends that the evidence is so overwhelming that Quinn was not acting in self defense that the jury’s finding of self-defense arose not from misjudgment, but from confusion or error in answering the interrogatories. He quotes a statement from the trial judge at a post-trial hearing expressing doubt as to how the jury made the finding of self-defense. Except for polling and certain types of extreme irregularities such as tampering, etc., the law does not allow any inquiry into the method or thought processes by which a jury reaches its verdict. See Thibeaux v. State Farm Mutual Automobile Ins. Co., La.App., 285 So.2d 363 (3rd Cir.1973). Any such determination would require a trial court factual inquiry, which was not had in this matter. Accordingly, there is no evidence supportive of plaintiff’s contention.

Further argument is made by plaintiff’s counsel that the self-defense finding did not include the question of whether Quinn used excessive force. In a post-trial proceeding, he sought to have that issue decided by the judge, but this was denied. The interrogatory propounded to the jury did not itself allude to the matter of excessive force. However, the charge clearly instructed the jury that one engaged in excessive force could not claim self-defense. Accordingly, we think the jury’s answer necessarily dealt with the issue of excessive force.

The more serious issue presented by this appeal is whether we can reverse the jury’s finding that Quinn acted in self-defense. We now review the various considerations pertinent to this determination.

Plaintiff was 32 years of age, had been married for several years, and was employed as a teacher. He had been periodically afflicted with a mental condition for some years. Defendant was about 50 years of age, a veteran seaman, and possessed strong feelings on the race issue. These two had never known each other prior to the date in question.

Plaintiff and the five members of the Poche group all testified on his behalf. Defendant Quinn and Mrs. Guidry gave counter testimony. Two other patrons of the bar at the time were not called as witnesses. One. of these may have been friendly disposed towards Quinn.

As they entered the bar, the Poche group took seats on stools at the bar. Plaintiff first went to the juke box for a while apcj.'” then took a position at the bar, immediately to the right of the Poche group. The stronger trend of the testimony is that plaintiff was seated and not standing. According to Quinn and Mrs. Guidry, after some conversation between Quinn and plaintiff, plaintiff raised his beer bottle with his right hand and was throwing or had thrown it when Quinn threw the Sprite bottle. According to Quinn, plaintiff was eyeing him menacingly or threat-ingly. Mrs. Guidry (who claims to have been observing the bar from her living quarters) claims plaintiff’s eyes were blinking wildly. Apparently he had a facial tic. The plaintiff testified that his bottle was on the bar and his hands were not moving as if to lift it or otherwise. All the Poche group testified that plaintiff had not lifted his bottle or made any gesture which could be taken as an attempt to throw the bottle, or at least they did not see any such action.

The testimony shows that prior to the bottle throwing, there had been a general conversation involving all the patrons and particular conversations were going on between different patrons and those seated next to them. It is noted that all of the plaintiff’s witnesses were to his left and away from his right hand. All except the one immediately next to him had one or more persons seated between them and plaintiff. Generally, their attention was straight ahead or to their left.

There is some conflict as to the exact words used by plaintiff and Quinn in their outburst immediately preceding the violence. It seems that Quinn was running down the Negro race and stated he would serve plaintiff a “nigger” beer. Immediately prior to the violence, plaintiff supposedly stated that perhaps he (plaintiff) had Negro blood in his veins, and Quinn replied that he ought to go drink with them. We can conclude that the conversation was /such as would engender sufficient hostility in either to initiate violence, depending on their inclinations to such, their moods at the time and the extent to which these two personalities irritated each other.

Quinn claims that as he was turning or walking away from plaintiff, he perceived the commencement of the throwing gesture, that he immediately grabbed the Sprite bottle from the rear bar and hurled it, and that the bottles hit in midair. This explanation and other evidence pose serious questions of timing and the physical possibility of the incident occurring as Quinn claims. We have weighed all these non-credibility considerations but are unable to conclude that the question can be resolved other than by assessing the witnesses’ credibility. We particularly note that many of the descriptions of the parties’ actions, positions, etc., were probably clear to the jury but are meaningless to us from the record at hand. Accordingly, we do not feel that we can upset the jury’s finding as manifestly erroneous. This includes any possibility that Quinn had reasonable alternatives to throwing the bottle, such as turning his back, dodging or fleeing. Such questions were pecularily within the province of the jury. In Canter v. Koehring Co., La., 283 So.2d 716 (1973—Sup.Ct.), it was said:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Having concluded that we must uphold the findings of self-defense on Quinn’s part, we now proceed to decide whether Mrs. Guidry’s liability must be affirmed on the basis of the jury’s finding that she was negligent.

The jury found Quinn was acting in the course of his employment with Mrs. Guidry and the rule of respondeat superior would be applicable. However, that rule does not render a master liable for the innocent acts of the servant any more than the servant himself could be held responsible. Here Quinn’s conduct was non-tor-tious. Respondeat superior only makes the master liable only to the extent that the servant acted tortiously but not greater or differently.

Plaintiff alleges Mrs. Guidry was negligent in hiring Quinn, who had a propensity to violence; in permitting Quinn to drink while on duty; in not restraining Quinn or taking steps to prevent him from becoming violent; by exposing her patrons to danger in that she should have known of the dangerous propensities of Quinn and by not providing adequate personnel to protect patrons. Except for the last one, none of these allegations would fasten liability on Mrs. Guidry, even if they were true. If Quinn himself did not offend, such failures of Mrs. Guidry are irrelevant for they are not proximate causes of the injury, that is, the tortious aspect or element of those failures did not contribute to a tortious result, but rather the failures themselves produced a non-tortious result, that is, the injurious consequences resulting from Quinn’s exercise of his right of self-defense.

The last specification of negligence does not relate specifically to Quinn and may have some potential toward liability if there were a duty on an owner of an establishment such as this to maintain peace-keeping personnel at all times. Counsel cites no authority for such, and we know of none. We do not think it would be proper to exact such a strict requirement for such an establishment. The evidence is overwhelming that this incident occurred too abruptly to be prevented even if there would have been peace-keeping personnel available, unless they would have prohibited any argument or discussion whatsoever in the place. This would have been impractical. Furthermore, any such protective personnel would have no right to prevent Quinn from acting in self-defense; The most such personnel could have accomplished would have been to prevent plaintiff himself from acting as the jury found that he did. But the protection is not for such purpose. It is to protect a patron from another’s tortious acts. Therefore, we conclude that any failures or negligent acts of Mrs. Guidry did not contribute in a legally significant way to plaintiff’s injuries and the award against her and her insurer must be eliminated.

Accordingly, the judgment of the district court is amended so as to dismiss the claim against Mrs. Daisy Bel Guidry and Travelers Insurance Company and, as amended, it is affirmed.

Plaintiff is to bear all trial and appellate costs.

AMENDED AND AFFIRMED.

      . The verdict of the jury read as follows:

        “VERDICT OE JURY

      1. Was Thomas C. Morris struck by a bottle as a result of intentional or negligent actions of Edward F. Quinn?
      ANSWER Yes
      (Yes or No)
      2. Did the actions of Edward F. Quinn in the incident involved in this suit constitute self-defense?
      ANSWER Yes
      (Yes or No)
      3. Was Edward F. Quinn an employee or servant of Daisy Bel Guidry at the time of the incident involved in this suit?
      ANSWER Yes
      (Yes or No)
      4. If Mr. Quinn was an employee or servant of Mrs. Guidry, was he acting within the course and scope of such relationship at the time of the incident involved in this suit? (If he was not such an employee or servant, you will not answer this question.)
      ANSWER Yes
      (Yes or No)
      5. Was Daisy Bel Guidry guilty of negligence that was a proximate cause of the incident involved in this suit?
      ANSWER Yes
      (Yes or No)
      6. What is the amount of the damages, if any, that were sustained by Thomas 0. Morris as a result of the incident involved in this suit?
      ANSWER $9350


text:
    AUTOMOTIVE LIFE INSURANCE COMPANY v. F. C. DOYLE, Jr., Administrator, Louisiana Department of Employment Security.
    No. 7367.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Amended Decree on Denial of Rehearing July 29, 1976.
    Philip S. Brooks, New Orleans, for plaintiff-appellant.
    Marion Weimer, James A. Piper, James A. McGraw, Baton Rouge, for defendant-appellee.
    Francis M. Wentworth, Jr., Charles J. Rivet, Frank S. Norman, New Orleans, amici curiae.
    Before LEMMON, MORIAL and BEER, JJ.
   MORIAL, Judge.

This is an appeal from a decision of the district court affirming an “administrative decision” of the defendant dated October 6, 1972.

Plaintiff filed suit pursuant to LSA-R.S. 23:1541(3) for judicial review of “ * * * an October 6, 1972 ruling of the Louisiana Department of Employment Security regarding benefit charges of one Charles W. Guillory to the account of petitioner’s unemployment contributions.”

The record before us contains no evidence that plaintiff was given “ * * * an opportunity for a fair hearing * * nor does it include the decision of the administrator and the basis for his findings and conclusions. Accordingly, there has been a failure to fully comply with LSA-R.S. 23:1541(3) which is a prerequisite for judicial review.

For the foregoing reasons the case is remanded to the Administrator, Louisiana Department of Employment Security, for proceedings not inconsistent with the requirements of LSA-R.S. 23:1541(3).

REMANDED.

AMENDED DECREE

The judgment of the district court is hereby reversed and the case is remanded to the Administrator, Louisiana Department of Employment Security, for proceedings not inconsistent with the requirements of LSA-R.S. 23:1541(3).

      . LSA-R.S. 23:1541(3) provides in pertinent part:
      “ * * * if an employer alleges that certain benefits are not properly chargeable to his experience-rating record on grounds other than error in the determination, reconsidered determination, or decision under which the benefits were paid, the administrator shall give him am opportunity for a fair hearing, and on the basis of his findings and conclusion shall malee such adjustments in the employees experience-rating record and contribution rate as may thereunder be required. The employer shall be promptly notified of the administrator’s action which shall become final unless within 20 days after the mailing of notice thereof to his last known address or in the absence of mailing within 15 days of delivery of such notice, a petition for judicial review is filed in the district court of the employer’s domicile. In all proceedings under this paragraph the findings of the administrator as to facts shall be presumed to be prima facie correct if supported by substantial and competent evidence. These proceedings shall be heard in summary manner and shall be given precedence over all other civil cases except cases arising under Part VI of this Chapter and under Chapter 10 of this Title. An appeal may be taken from the decision of the district court in the same manner, but not inconsistent with the provisions of this Chapter, as is provided for in other civil eases.” (emphasis supplied)


author: MILLER, Judge.

text:
    Annie THOMPSON, Plaintiff-Appellee, v. NATCHITOCHES PARISH HOSPITAL SERVICE DISTRICT et al., Defendants-Appellants.
    No. 5533.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 4, 1976.
    Writ Refused Oct. 27, 1976.

      Bolen, Halcomb, Bolton & Irwin by James A. Bolen, Jr., Alexandria, for defendants-appellants.
    Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before MILLER, DOMENGEAUX and PAVY, JJ.
   MILLER, Judge.

Natchitoches Parish Hospital Service District and its insurer, Argonaut Southwest Insurance Company, appealed the judgment awarding plaintiff, Mrs. Annie Thompson, total and permanent workmen’s compensation disability benefits, and $3,000 attorney fees. We affirm the compensation award but reverse the award of attorney fees.

Thompson had been employed by the hospital for eight years as a nurse’s aide and emergency medical technician. On May 16, 1975, she was assigned to assist the ambulance driver to take a patient to and from a Shreveport hospital. On the way over she was attending the patient and was seated in the rear of the ambulance. A station wagon rear-ended the ambulance while it was stopped for a red light at a Shreveport intersection. They remained at the scene of the accident for ten minutes until the investigating officer told everyone to move on. Since no one complained of injuries at the time and there was little or no damage to the ambulance, no accident report was filed. The journey continued to the Shreveport hospital. Later in the day the patient was returned to Natchi-toches in the same ambulance.

Thompson felt no pain until the day after the accident when she became stiff. Two or three days later, she experienced pain in her back and neck, as well as her head and right arm. She complained of pain to her husband but continued working at the hospital and did not complain or report the accident to her co-workers or to her employer. She explained that she and her husband were hardpressed to pay bills, and since she could not afford to miss work she put off seeing a doctor until her scheduled vacation which began late in June, 1975.

After consulting one physician on June 26, 1975, Thompson returned the next day because she was experiencing severe pains in her neck and back. The first physician was not available so she saw Dr. John A. Thomas who became her treating physician. On the basis of her history and his physical examination which disclosed considerable tenderness and muscle spasms of the spine and neck, Dr. Thomas diagnosed a muscle sprain. Because of the severity of her pain, Dr. Thomas admitted Thompson to the defendant hospital for treatment. On the medical history, Dr. Thomas related Thompson’s disability to the May accident.

Thompson’s first report of the accident and claim of injury was filed with the employer after she was discharged from the hospital. However the employer learned indirectly of Thompson’s complaints while she was on vacation.

The hospital administrator, Eugene Spill-man, received letters from Thompson’s attorney dated July 24, and August 5, 1975. The first letter sought information relative to a proposed tort suit against the driver of the rear-ending station wagon, together with the name and address of that driver. The ambulance driver had delivered that information to the hospital office on the day of the accident. This information was misplaced and was unavailable at trial. Tr. 56.

After Thompson’s attorney made several written demands on the hospital for workmen’s compensation, suit was filed on November 19, 1975. The judgment on appeal was signed January 30, 1976.

There are three issues to be resolved: 1) Did the trial court commit manifest error in finding a causal connection between the accident of May 16, 1975 and Thompson’s disability diagnosed June 27, 1975? 2) If so, did Thompson prove total and permanent disability? 3) If so, was defendant insurer’s refusal to pay workmen’s compensation benefits arbitrary and capricious, thereby entitling Thompson to penalties and attorney fees ?

CAUSAL CONNECTION BETWEEN THE ACCIDENT AND THOMPSON’S DISABILITY

In written reasons the trial judge held that although Thompson’s accident was a minor one, she experienced pain related to the accident on the following day. Defendants contend Thompson’s failure to report injuries for so long a period (she worked for five weeks after the accident without complaining and stopped work then to begin her scheduled vacation), and her failure to complain to fellow employees or show signs of injury at work, are convincing evidence of the lack of connection between the accident and her diagnosed disability.

During her eight years employment as a nurse’s aide, Thompson was not a complainer. The hospital administrator admitted Thompson was a good employee and would not lie. The only time Thompson missed work was in October, 1974, after pulling a back muscle while lifting a patient. Appropriate compensation was paid at that time, and Thompson returned to work. There is no evidence of another accident or unusual occurrence from May 16 to June 27, 1975 when her condition was diagnosed. Thompson explained she continued working without complaining because she couldn’t afford to miss work; there were numerous family bills that had to be paid in addition to the usual expenses of raising four children. Thompson’s husband corroborated her testimony that she began experiencing pain the morning following the accident; that she didn’t consult a physician because she couldn’t afford to miss work.

The hospital administrator questioned the causal connection between the accident and the diagnosed disability because of the long period of time between the accident and her report of the injuries. The insurer’s claims investigator admitted his investigation of the claim turned up no derogatory information concerning Mrs. Thompson.

Although defendant presented eleven hospital employees (either by testimony or by stipulation that their testimony would be similar) who testified that they spoke to and observed- Thompson while she was at work after the accident, never hearing complaints nor noticing external signs of pain, these employees did not testify that they worked closely with claimant.

Dr. Thomas testified that the objective symptoms of severe pain present on June 27, 1975 were consistent with the type injury Thompson described to him; that many times such injuries produce a gradual onset of pain; and in his opinion, her injuries were caused by the accident. His was the only medical testimony in the record. Defendants did not seek to have Thompson examined.

Where there is proof of an acci-dént and of a following disability without an intervening cause, it is presumed that the accident caused the disability. Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969). In Russell v. Employers Mutual Liability Insurance Company of Wisconsin, 246 La. 1012, 169 So.2d 82 (1964), based on expert testimony, the court found a causal connection between an accident and blackouts and dizziness occurring almost two years later. See also Malone, Louisiana Workmen’s Compensation Law and Practice, Permanent Edition, § 252, pp. 299-301.

The testimony of an employee alone may establish a work related accident where such testimony is corroborated by other credible evidence. Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1 Cir. 1975). In the Wright case, the court considered claimant’s work record (he too had worked six or seven years for the same employer and given good performance), and his honesty and integrity. While there was a dispute as to whether claimant reported his work related accident, the court accepted his testimony which was corroborated by his wife and a union steward.

While claimants must establish causation by a preponderance of evidence, we fail to find manifest error in the trial court’s determination that there was a causal connection between the May 16, 1975 accident and Thompson’s subsequently diagnosed disability.

The trial judge’s findings on the question of causation must be given great weight. Gradney v. Vancouver Plywood Company, Inc., 299 So.2d 347 (La.1974). In Matte v. Power Rig Drilling Co., Inc., 260 So.2d 19 (La.App. 3 Cir. 1972), a case where claimant had admittedly concealed his back injury from his foreman because he feared the loss of his job as a roughneck, this court affirmed the trial court’s determination that the injury was due to a job related accident. Great weight was attached to the trial judge’s evaluation of credibility. See also Jagneaux v. American Universal Insurance Co., 231 So.2d 601 (La.App. 3 Cir. 1970), where the court acknowledged that complaints are factors to be considered in determining whether plaintiff has carried his burden of establishing a causal connection. Absent evidence of another accident, the present disability will not be ascribed to some unshown subsequent injury. 231 So, 2d 601 at 603.

TOTAL AND PERMANENT DISABILITY

When Thompson was discharged as having reached the point of maximum improvement on December 1, 1975, Dr. Thomas did not think she could return to her employment as a nurse’s aide. Tr. 97. This opinion was based on his understanding .that nurse’s aides occasionally lift and turn patients. While co-employees testified that hospital policy provided for aides to get assistance when lifting was necessary, there was also testimony that aides did in fact lift and move patients in and out of beds. Evidence supports Dr. Thomas’s understanding of the nature of the work Thompson would be expected to perform and the trial judge’s finding of total and permanent disability.

Total and permanent disability exists when, because of injury, an employee is unable to perform work of the same or similar description that he is accustomed to perform. LSA-R.S. 23:1221(2); Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 at 12 (1932); Cooley v. Insurance Company of North America, 216 So. 2d 388 (La.App. 3 Cir. 1968); Bellard v. Insurance Company of North America, 193 So.2d 922 (La.App. 3 Cir. 1967).

PENALTIES AND ATTORNEY’S FEES

Attorney’s fees are granted when the denial of workmen’s compensation benefits is arbitrary and capricious. LSA-R. S. 23:1201.2.

We find manifest error in the trial court determination that the insurer was arbitrary and capricious in defending this claim. Since claimant bears the burden of proof to establish that her disability resulted from a job related accident, defendants were not arbitrary and capricious in making the decision to defend this claim where the employee: 1) was involved in a minor accident, 2) continued working for five weeks after the accident, 3) did not report the accident for two months, and 4) did not show or complain of pain or disability to co-workers during her five weeks of work following the accident.

Employers are not to be penalized for taking their case to court for judicial resolution of a close factual question. Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1 Cir. 1975); Gatheright v. U. S. Fidelity & Guaranty Company, 267 So.2d 576 (La.App. 3 Cir. 1972). Starks v. Hardware Mutual Casualty Company, 231 So.2d 657 (La.App. 2 Cir. 1970).

The trial court judgment is affirmed in-' sofar as it awarded total and permanent workmen’s compensation benefits, medical payments, and expert witness fees. The judgment awarding penalties and attorney fees is reversed and set aside. All costs of this appeal are assessed to defendants.

AFFIRMED, in part; in part REVERSED and RENDERED.