author: LOTTINGER, Judge.

text:
    Treiba McLEOD v. The PARISH OF EAST BATON ROUGE and the Department of Transportation and Development.
    No. 14742.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.

      Robert W. Stratton, Baker, for plaintiff-appellant Treiba McLeod.
    Burton P. Guidry, Larry S. Bankston, Asst. Parish Attys., Baton Rouge, for defendant-appellee Parish of East Baton Rouge.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action ex delicto in which Trei-ba McLeod sued the Parish of East Baton Rouge and the Louisiana Department of Transportation and Development for personal injury damages sustained as the result of an automobile accident. The Louisiana Department of Transportation and Development was dismissed from the suit by motion for summary judgment, on the grounds that Irene Road is a parish road and is not a part of the state highway system. After a trial on the merits, judgment was rendered in favor of the defendant. Plaintiff has appealed devolutively. The granting of summary judgment in favor of the Department of Transportation and Development has not been contested on appeal.

The suit arose as the result of an automobile accident occurring on April 18, 1978. Treiba McLeod was driving a Volkswagen automobile on Irene Road in East Baton Rouge Parish in a northeasterly direction from the Mississippi River to Scenic Highway. Irene Road as it runs from the river is a gravel road for some distance and then has a blacktopped surface. The paved portion of the road contains a series of curves. While attempting to negotiate a right-to-left curve which was the second of the series, the plaintiff’s vehicle left the roadway and went into a ditch. The car rolled along the ditch for some distance and then struck a culvert underlying an intersecting gravel driveway. The car was then sent airborne, striking several fence posts and ultimately impacting a utility pole.

As a result of this accident, Treiba McLeod was seriously injured and a passenger, Julia Eileen Rolls, was killed. A second passenger, Ricky Wilson, was not seriously injured.

Treiba McLeod sued alleging that negligent design and maintenance of the road, road shoulder, and the intersecting driveway and culvert caused her to lose control of the automobile, resulting in the accident and accompanying injuries and damages.

The trial court found as fact that the plaintiff, by her own admission, had driven Irene Road 25 or 30 times and was very familiar with the road; that the plaintiff just prior to the accident had successfully negotiated an unmarked but much more severe curve; and that the physical evidence revealed that the plaintiff for no apparent reason failed to apply her brakes or alter her course or direction after leaving the road. Thus, the trial court found that the cause in fact of the accident was not a deficiency in design or maintenance of Irene Road, but was rather the failure of the plaintiff to control her vehicle and maintain it on the roadway.

SPECIFICATIONS OF ERROR

Plaintiff-appellant, Treiba McLeod, assigns the following specifications of error:

1) The trial court erred in concluding from the physical evidence that Treiba McLeod was negligent;
2) The trial court erred in applying the law to the facts adduced; and
3) The trial court erred in ruling that the East Baton Rouge City-Parish traffic engineers were competent to testify as experts.

I

Irene Road in East Baton Rouge Parish is a rural, low-volume road which runs between Scenic Highway and the Mississippi River with many curves. The curve in which the accident occurred was the second in a series of curves that are encountered as one travels northeast from the river and the road changes from gravel to blacktop.

The curve where the accident occurred is a right-to-left curve of moderate severity. Trial testimony indicated that the road through the curve has a variable width of 15 or 16 feet. The width of the road shoulder also varies, from 2-3 feet. The shoulders are firm and are level with the roadway. Immediately adjacent to the road shoulder on the right side is a drainage ditch, and beyond the ditch, a barbed wire fence. A gravel driveway intersects the curve near its end and a culvert underlies the gravel driveway to accommodate drainage. Trial testimony showed that the top of the culvert is slightly higher than the road shoulder, and the culvert is about six feet away from the road.

The curve is not marked with a curve warning and an advisory speed. The posted speed for Irene Road is 45 m. p. h. There are no delineators or guard rails along the curve. The plaintiff claims that the lack of curve warning with a reduced advisory speed caused her car to leave the road as it went around the curve. Plaintiff testified that the car was traveling at 20-25 m. p. h. at the time the car left the road. The accident occurred when the wheels of the car left the road as the car traveled the curve. The car went across the shoulder and into the ditch, then traveled along the ditch for a distance, striking the culvert and gravel driveway. The plaintiff claims that the failure to warn of the curve caused her car to leave the road, that the narrowness of the shoulder forced the car into the ditch, and that the culvert was higher than the road shoulder and thus constituted a hazard which prevented her from getting the car back onto the road.

From the physical evidence, the investigating deputy sheriff found that the car left the road 114 feet away from the culvert; that there were no skid marks which would indicate braking by the driver; and that the tracks left by the front wheels were in line with those of the back wheels, indicating that the car did not significantly change course or direction as it traveled along the ditch.

The plaintiff testified that she had driven Irene Road some twenty or thirty times and that she had always considered it a dangerous road. For this reason, the trial court found that the lack of a curve warning sign did not cause the plaintiff to drive off of the pavement. We agree with the trial court that a person becomes familiar with a road when he drives it many times, and that the lack of a warning sign did not cause plaintiff to miss the curve. This position is buttressed by the fact that just before the accident, plaintiff had successfully negotiated a left-to-right curve which was much more severe, and which was similarly unmarked.

The plaintiff argues that the narrow width of the road contributed to the accident. We do not find this to be the case, inasmuch as plaintiffs car was the only one on the road when the accident occurred. The car was not forced from the road by another vehicle, and could have used every available inch of pavement to negotiate the curve.

Plaintiff further contends that the failure to post an advisory speed for the curve was a contributing factor to the accident. The posted speed for the road is 45 m. p. h. The plaintiff’s expert stated that the curve could be negotiated safely at 25-30 m. p. h. The defendant’s experts stated that they safely negotiated the curve at 37 m. p. h. Deputy Maranto, a lay witness, stated that he has on one occasion negotiated the curve at 50 m. p. h., but that this was during an emergency. Yet, the plaintiff testified that the car was traveling at 20-25 m. p. h. when it left the road. This was a speed which all the experts agreed was safe. Taking the plaintiff’s testimony at face value, we hold that the lack of an advisory speed did not cause the accident, because the lack of an advisory speed did not induce the plaintiff to take the curve at an unsafe speed.

The plaintiff also asserts that the narrowness of the road shoulder and the proximity of the ditch and culvert constituted a hazardous or defective condition of Irene Road. She argues that had the road shoulder been wider and had the ditch and culvert been farther away from the road, that she could have maintained control and maneuvered the car back onto the road.

The State Department of Highways issues a Uniform Traffic Manual to be used in conjunction with the state highway system. The defendant’s experts stated that the manual is not binding as to parish roads, but admitted that the manual is sometimes referred to by the parish for guidance. The manual recommends road shoulders of three feet for rural, low-volume roads. Photographs introduced into evidence show that the road shoulder is about 214 feet wide in the curve.

After a thorough examination of the evidence and the trial transcript, we hold that the shoulder and culvert'were neither defectively designed nor maintained. Irene Road is a winding country lane with an open ditch next to it. The road is of a type that can be seen in every parish of the state. The shoulder is firm and even and is only slightly less wide than the recommended standard. The culvert which underlies the gravel driveway is a necessary component of open ditch drainage. Without the culvert, water could collect in the ditch after a heavy rain and flood the road, creating a hazardous condition. The reason that the culvert and ditch are only a few feet away from the road is that the private property of a Mr. Day lies on the other side of the ditch and barbed wire fence. The right-of-way for drainage is narrow; thus, the ditch is correspondingly near the road. This condition is a product of the development of Irene Road as a rural road and of the adjacent property, and the parish has labored under these confines since it took over maintenance and legal responsibility for the road in 1963. The top of the culvert does stand a few inches higher than the road shoulder, but the height of the culvert is apparently that which is necessary for proper drainage. For all of the above stated reasons, and after a thorough examination of photographs depicting the crash scene, we hold that the shoulder and culvert do not constitute such an unreasonable risk of harm so as to be labeled defective or hazardous.

II

Plaintiff-appellant states in brief that the trial judge erred in finding her to have been negligent. Such was not the ruling of the trial court. The trial court held merely that the plaintiff failed to prove that the crash was caused by any of the negligent conditions, defects, or hazards that were alleged by the plaintiff. Thus, because the defendant was not negligent and not liable under La.C.C. 2317 for a defective thing in its custody, judgment was rendered for defendant without ruling on the plaintiff’s contributory negligence.

Plaintiff urges this court to apply Rue v. State Department of Highways, 372 So.2d 1197 (La.1979), to the case at bar. In Rue, the Supreme Court stated that a motorist has the right to assume that the highway shoulders are maintained in a reasonably safe manner in the absence of knowledge or reason to know of a defect. Thus, in Rue the court held that where a motorist inadvertently left the road and crashed after striking a dangerous rut in the shoulder, that her contributory negligence in having left the road would not bar her recovery.

Rue is readily distinguishable from the instant case. The shoulder in question contained no dangerous ruts; the shoulder was level, firm, and free from ruts or potholes. The only possible dangerous condition in the shoulder was its somewhat narrow width; however, we have held already that the width of the shoulder did not create an unreasonable risk of harm under the circumstances. Most importantly, since plaintiff drove Irene Road some twenty or thirty times, it can be assumed that she knew that the shoulders were somewhat narrow and that the ditch was present. Thus, even were we to hold that the narrowness of the shoulder was a hazard, plaintiff would be chargeable with knowledge of same and would have committed a breach of duty to herself and her passengers in having left the paved portion of the road. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

Finally, although the trial court did not so rule, the physical evidence leaves no doubt that substandard conduct by plaintiff caused the actual crash of the car. This evidence shows that plaintiff’s auto left the roadway some 114 feet before the culvert, that the brakes were never applied and that no attempt was made to alter the path of the automobile. If the car was traveling at 20-25 m. p. h. as the plaintiff claims, it is inconceivable to us that the car could not have been safely slowed and brought under control prior to its hitting the culvert and driveway. Thus, the trial court was correct in holding that the cause in fact of the accident was the failure of plaintiff to maintain her vehiclé on the roadway and to control the vehicle, and was not any deficiency in the design and maintenance of the road and shoulder.

Ill

Finally, plaintiff-appellant argues that the trial court erred in allowing the employees of the defendant to give expert testimony.

La.C.C. art. 2282 reads:

“The circumstance of the witness being a relation, a party to the cause, interested in the result of the suit, or in the actual service or salary of one of the parties, is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility.” (Emphasis supplied.)

Article 2282 does not differentiate between fact witnesses and expert witnesses. In Hebert v. Brazzel, 393 So.2d 135 (La.App.3rd Cir. 1980), affirmed 403 So.2d 1242 (La.1981), the Third Circuit stated that an employee of a party may qualify as an expert, although his credibility may be diminished under the circumstances, citing La.C.C. art. 2282.

When the traffic engineers employed by the defendant were qualified as experts, the trial judge overruled plaintiffs objections that they were incompetent to testify. The trial judge stated that he would weigh carefully the testimony of the defendant’s employees, keeping in mind their employment relationship with the defendant. There was no challenge to the expertise of these witnesses. We find that the trial court followed the letter of Civil Code art. 2282 exactly, and that allowing the traffic engineers of defendant to testify as expert witnesses was not error.

DECREE

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of defendant-appellee, Parish of East Baton Rouge, is hereby affirmed. All costs of this appeal are to be borne by plaintiff-appellant.

AFFIRMED.

      . This suit was consolidated at the trial level with a companion suit, Number 223,385 of the Nineteenth Judicial District Court, entitled, “Helen Bercegeay v. Parish of East Baton Rouge,” Helen Bercegeay being the mother of the deceased, Julia Eileen Rolls. Judgment was rendered in favor of defendant in both suits. The two suits have not been consolidated on appeal.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    ALLIED CHEMICAL CORPORATION, Plaintiff-Appellee, v. George J. DESPOT, Individually and As Trustee of the George J. Despot Trusts, et al., Defendants-Appellants.
    No. 14876.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      M. Thomas Arceneaux, Shreveport, for defendant-appellant, George J. Despot.
    Liskow & Liskow by James L. Pelletier and George H. Robinson, Jr., Lafayette, for plaintiff-appellee, Allied Chemical Corp.
    Goff & Goff by A. K. Goff, Jr., Ruston, for defendants-appellants, Norman Lamar Dowling and Dhu Dowling.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   PRICE, Judge.

This suit presents a dispute between George J. Despot individually and as trustee of the George Despot Trust No. 1 through 11, and Norman Lamar Dowling and Dhu Dowling concerning the ownership of royalty proceeds allocated from unit production to land described as NW Vi of SE lU of Section 29, Township 19 North, Range 4 West in Lincoln Parish. Allied Chemical Corporation deposited $21,503.89, which represents a 3/96 royalty interest in the above described land, into the registry of the court. It was stipulated that Allied had previously paid the Dowlings $19,116.27.on production attributable to this interest. After motions for summary judgment were filed by both parties, the trial court granted a summary judgment in favor of the Dowl-ings. It held that any interest owned by Despot in the disputed tract had been extinguished by 10 years liberative prescription. The judgment provided that Allied was to be paid $19,116.27 from the funds on deposit with the remainder to be distributed between the Dowlings. Despot appeals, and we affirm.

On March 31, 1954, the Dowlings sold to George G. Despot Vi of the oil, gas, and other minerals in and under that might be produced from the following described land:

The Southeast Quarter of the Southeast Quarter of Section 20; the Northeast Quarter, the Southeast Quarter of the Northwest Quarter, the South half of the Northeast Quarter of the Northwest Quarter, and the Northwest Quarter of the Southeast Quarter of Section 29; all in Township 19 North, Range 4 West, containing 300 acres more or less, in Lincoln Parish, Louisiana.

In the sale of the mineral interest, the sellers reserved the right to grant future leases.

On September 15, 1955, George G. Despot, the Dowlings, and other mineral and royalty owners entered into a voluntary unitization agreement covering a portion of the tract described above. The voluntary unit did not include the disputed tract. Paragraph three of this agreement provides:

For the purpose of this Agreement, the mineral and royalty interests and the leasehold interests of the parties hereto as to the lands lying within the area above described are hereby pooled, unitized and consolidated. Drilling, mining or reworking of the Dorothy Dowling # 1 Unit, or production of any minerals from any part of the said consolidated area, pooled hereby, shall be treated for all purposes as operations upon or production from each of the above described leases. Lessees shall not be required to offset any well drilled on the Dorothy Dowling # 1 Unit by drilling any other well in said consolidated area.

On May 1, 1957, the Louisiana Commissioner of Conservation issued Conservation Order No. 370 creating drilling and production units for the “D” sand of the Terryville Field. In addition to other units, the order provided a unit containing the same land as the unit described in the voluntary pooling agreement.

A unit well, designated as Dorothy Dowl-ing No. 1, was drilled on property in the S Vz of Section 20, Township 19 North, Range 4 West, but not on any of the tract described in the act of mineral sale from the Dowlings to Despot. Production from this well was obtained within 10 years from March 31, 1954, and is still producing.

On November 24, 1965, George G. Despot donated all of his mineral interest, including that covering the disputed tract, to George J. Despot, as trustee of the George Despot Trust No. 9. As George G. Despot had previously conveyed a Via mineral interest in the property to Rena Marie Roberts, the donation covered only a Vm interest in the minerals. Although made a defendant in this suit, Roberts did not contest the proceedings or appeal the judgment.

On December 7, 1976, the Dowlings granted an oil lease covering the disputed tract and other land to Frank D. Rippey. The lease provided for the payment of /« royalty to the lessors. In February 1979 production was obtained from the well drilled on the disputed tract. It is the royalty due from this well that is involved in this concursus proceeding.

Despot contends that because of the provisions of the voluntary unitization agreement, the production from the Dorothy Dowling No. 1 has interrupted prescription on all servitudes and royalty interests affecting lands located within the unit, and since a mineral servitude or royalty is indivisible this interruption is also effective as to the disputed tract herein which is outside of the drilling unit.

The Dowlings contend that prescription was not interrupted or suspended by the execution of the voluntary pooling agreement, the creation of the compulsory drilling unit or the drilling and production from the Dorothy Dowling No. 1 well.

The trial judge in excellent reasons for judgment, concisely stated the legal positions of both parties and reviewed the applicable law and jurisprudence in concluding that prescription had not been interrupted or suspended on the disputed tract. As we agree with the legal analysis and conclusions reached, we find it appropriate in this instance to quote the pertinent portions of the trial courts’ reasons as follows:

“The question presented by this suit is whether liberative prescription has accrued as to the mineral or royalty interest created by the sale on March 31, 1954 by the Dowl-ings to Despot as relates to NW lA of the SE Vi Section 29, Township 19 North, Range 4 West. The question or issue in the suit is easy to identify. However, the correct result is more difficult to formulate from the statutes and the jurisprudence.

“As noted the Dowlings, in the sale to Despot, reserved the right to execute future leases. This reservation makes it a little difficult to identify the interest acquired by Despot as a mineral interest or a royalty interest. Fortunately, all of the parties agree that the same result is reached regardless of the ‘title’ given to the interest created by the sale. The court prefers to refer to the right as a mineral interest with the Dowlings being vested with the executive rights covering the mineral interest. This is apparently the manner in which the parties treated the transfer as it appears to be the sale of a mineral interest.

“Article 37 of the Mineral Code (R.S. 31:37) reads as follows:

‘Production from a conventional or compulsory unit embracing all or part of the tract burdened by a mineral servitude interrupts prescription, but if the unit well is on land other than that burdened by the servitude, the interruption extends only to that portion of the servitude tract included in the unit.’

“Learned counsel for the Dowlings contends that the provision of Article 37 relative to interruption of prescription is applicable to this case. Reasons are advanced in the brief and a number of cases cited which deal and relate to matters of prescription as procedural in nature being applied retrospectively. However, consideration must be given to Article 4, Section 15 of the Louisiana Constitution of 1921 and also to Article 214 of the Mineral Code (R.S. 31:214) which provides as follows:

‘The provisions of this Code shall apply to all mineral rights, including those existing on the effective date hereof; but no provision may be applied to divest already vested rights or to impair the obligation of contracts.’

“Under the expressed provisions of Article 214 of the Mineral Code Article 37 and all other provisions of the Code are applicable to the mineral rights acquired by Despot from Dowling. However, the second portion of the article would mean that no provision would be applied to ‘divest already vested rights.’ The ownership, if he had such, by Despot of a mineral interest affecting NW Vi of SE Vi of Section 29, Township 19 North, Range 4 West was certainly vested in the most realistic and legal sense of the word on January 1, 1975, the effective date of the Mineral Code. The Code then would be applied to the mineral interest owned by Despot on the effective date of the Code. The running or accruing of prescription against the mineral rights owned by Despot would be determined under the Code after its effective date. The legal effect would be the same as if the mineral rights in favor of Despot had been created on the date of January 1, 1975 and from that date forward, the provisions of the Code applied. Under this analysis the running of prescription would not be interrupted by the production from the Dorothy Dowling No. 1 after January 1, 1975. Prescription if not interrupted or suspended would accrue on January 1, 1985.

“In the case under consideration everything is uncertain. As previously mentioned it is not definitely determined if the sale by the Dowlings to Despot on March 31, 1954 was the sale of a mineral royalty interest or of a servitude with reservation of executive rights. Also, the effect of off tract unit production may depend upon the determination of whether the unit was a voluntary unit or an involuntary unit. The unit in the case under consideration was no doubt originally intended to be a voluntary unit by the agreement with the effective date of September 15, 1955. However, by Order No. 370 of the Commissioner of Conservation, the unit was created as an involuntary or compulsory unit and the boundary of the compulsory unit was identical with the boundary of the unit created by the pooling agreement. It would seem to be as certain as any proposition can be in the development of the mineral law of our state that if the unit is considered as a compulsory unit under Order No. 370 the drilling of the Dorothy Dowling No. 1 well did not interrupt the running of liberative prescription on that portion of the tract subject to the servitude outside the unit. In the case of Childs v. Washington, 229 La. 869, 87 So.2d 111 (La.1956) the Supreme Court of our state with Chief Justice Four-net, writing the opinion held that:

‘It logically follows, therefore, that if the landowner and the mineral owner can by agreement extend the servitude as to a portion only of the acreage without by such act interrupting the tolling of prescription as to the servitude on the remainder of the tract, as held in Elson v. Mathewes, supra [224 La. 417, 69 So.2d 734 (1953) ], and if the mineral owner can divide the advantages of a servitude by assigning to a third person all of his interest in a designated portion of the land affected by the servitude and create a situation whereby user of a portion would not hold the remainder, as held in Ohio Oil Co. v. Ferguson, supra [213 La. 183, 34 So.2d 746 (1946)], and Byrd v. Forgotson, supra [213 La. 276, 34 So.2d 777 (1945)], then clearly when the Commissioner of Conservation, acting for the State in the exercise of its police power, by his orders and after due hearing, included within a unit or units portions of a tract as to which owners had failed to agree to pool their interests for development purposes, his act produced the same result as if the parties had formed a drilling unit by convention and for development purposes had reduced the servitude to that extent.’ (Emphasis Added)

See also Jumonville Pipe and Machinery Co., Inc. v. Federal Land Bank of New Orleans, 230 La. 41, 87 So.2d 721 (La.1956) and Frey v. Miller, 165 So.2d 43 (La.App.3d Cir. 1964).

“The case under consideration could be resolved logically and correctly with the holding that the unit from which the Dorothy Dowling No. 1 produced, was a compulsory unit and that all leases, mineral sales, unitization or pooling agreements and any other type of conventional contracts were subject to the implied constitutional and statutory authority granted the Commissioner of Conservation. Under this analysis, it would not be necessary to consider the pooling and unitization agreement since the agreement was modified by the order of the Commissioner of Conservation. The order reduced the mineral right, whether royalty or servitude, to the extent that production from the Dorothy Dowling No. 1 was applicable only to the land in the production unit. The land outside the unit was not affected by the drilling or production. However, the court recognizes that it could also be argued that the order of the Conservation Commissioner did not nullify the conventional pooling agreement but only modified it to the extent that conservation of minerals dictated compulsory unit production.

“The case of Trunkline Gas Company v. Steen, 249 La. 520, 187 So.2d 720 (La.1966) presented a case where a well was drilled on a tract subject to a mineral servitude. A compulsory unit was established by order of the commissioner. The contention was made that this compulsory unit in effect divided the servitude and liberative prescription had run as to that portion of the tract outside the unit. The court in that case held that the creation of the compulsory unit did not affect the running of prescription on the entire tract and that the drilling interrupted as to the entire tract. In that case the court said:

‘Applying the foregoing pertinent articles of the Code by analogy to the facts of this case, as was done in the foregoing case, it cannot be said the 1949 servitude created in favor of Group One was divided. Since it is only to the extent that it is necessary to protect, conserve and replenish the natural resources of this State and to prevent their waste that one’s right to property, either as owner or under contract, must yield to the Commissioner’s power, it necessarily follows that the only effect the Commissioner’s Orders of 1959 creating Unit No. 2 had was to deprive Group One of their right to go upon the land and conduct drilling operations on that particular portion of the parent tract included in the unit; but these Orders did not deprive or in any way conflict with Group One’s right of ownership or any benefits flowing from the wells drilled on the parent tract.
‘We therefore conclude the good faith drilling operations on the parent tract in Unit 2 had the effect of interrupting the running of Prescription on the entire tract, just as if there had been no compulsory Commissioner’s unit in existence.’

“The holding of Trunkline is not applicable in the case under consideration for the reason that the well, Dorothy Dowling No. 1, was not drilled on any part of the parent tract. However, the dictum statement in the Trunkline opinion could imply that after a voluntary pooling agreement, the creation of a compulsory unit would relate only to a matter of conservation and not to any matter relating to the term of leases, servitude or mineral royalty interest. If this analysis is correct then attention must be directed to the pooling and unitization agreement executed by the parties in this case.

“... The court is of the opinion that if you disregard totally Order No. 370 of the Commissioner of Conservation and consider the matter as if that order had never been issued, then it becomes a matter of determining if the holding of Elson, et al. v. Mathewes, 224 La. 417, 69 So.2d 734 (La.1954) or the holding in Crown Central Petroleum Corporation v. Barousse, et al., 238 La. 1013, 117 So.2d 575 (La.1960) is applicable to the facts here presented. Admittedly, it certainly appears that Elson and Crown Central are inconsistent in their holdings. This was noted by counsel in the oral arguments and in the memorandums and also by the writer of the comments in the Mineral Code. A close study and examination of Elson and Crown Central is necessary to resolve the issue in the case under consideration.

“Elson presented to the court an issue to determine if liberative prescription of ten years had accrued on a mineral servitude. The servitude covered a ninety-one (91) acre contiguous tract of land. There was a voluntary pooling and unitization agreement executed that created a 640 acre unit. The unit created included forty (40) acres affected by the mineral servitude, but did not include fifty-one (51) acres. A producing well was drilled on land in the unit but not on the forty acres subject to the servitude. The question was whether the fifty-one (51) acre tract was burdened with the servitude or if the servitude had reverted to the landowner because of nonuse liberative prescription of ten (10) years. The Supreme Court in a unanimous opinion held that the servitude had prescribed as to that portion of the tract outside the unit... ,

“The case of Crown Central Petroleum Corporation v. Barousse, supra, presented the question of whether production from a unit where the well was not on the parent tract interrupted liberative prescription on mineral royalty interest as to the entire tract or only as to the portion within the unit. Our Supreme Court in the cited case with two Justices dissenting held that under the voluntary pooling and unitization agreement in this case there was an interruption of the running of liberative prescription on the mineral royalty interest as to the entire tract. The court cited Elson and distinguished Elson on the basis that in Crown the unitization agreement did not reflect an intention by the royalty owner and the landowner to divide the royalty interest. Emphasis in the opinion was placed upon the fact that here there were royalty interests involved and that the owner of such interests occupied a different position from the servitude owner as he had no right to drill or explore for minerals. .. ,

“The holding in Crown has been questioned by writers and in subsequent opinions by our appellate courts. Admittedly, it is more than difficult to reconcile Elson and Crown. It should be noted that Crown did not overrule Elson. The court then must resolve the matter of the proper ‘yardstick’ to use in the case under consideration. Obviously what appears to be the holding of Elson would lead to a contrary conclusion than application of what appears to be the holding in Crown. There is an excellent discussion of the holding of Elson and Crown in Exchange Oil & Gas Company v. Foster, 237 So.2d 904 (La.App. 1st Cir. 1970). The opinion reviewed the basic policies and factors to be considered in interpreting pooling agreements....

“In the case under consideration, an examination of the pooling and unitization agreement shows that it is not the same as in Crown. For example in that agreement as quoted by Justice Hamiter in his dissent, there is recitation that production shall be considered as production ‘from all of the lands within the said unit and under all the leases affecting any portion of said land.’ Whereas, in the pooling and unitization agreement under consideration the statement is made that the production of minerals ‘shall be treated for all purposes as operation upon or production from each of the above prescribed leases.’ There is no mention or consideration that there is production from the land. Also, as mentioned above, Justice McCaleb stressed the fact that royalty interests were involved in Crown. In the case under consideration we have a servitude less executive rights. The case could then be decided by a holding that a mineral servitude is involved and accordingly Elson is applicable and not Crown relating to royalty. However, the court is of the opinion that the reasons for application of Elson rather than Crown are far more substantive than attempting a technical label on the real right mineral interest acquired by Despot on March 31, 1954.

“We must always begin on the premise that the parties are free to contract and if they do so they are bound by their agreement. There are obviously certain policy considerations to be considered in interpretation of the voluntary pooling agreements and in determining the intention of the parties. As relates to mineral or royalty interest one principal policy consideration of the jurisprudence has been an interpretation that is consistent with the running of liberative prescription against mineral servitude and mineral royalty interest.

“In some of the cases there is language about the intent of the parties to divide the servitude or royalty interest. The inquiry that is consistent with the total jurisprudence is an expression of intent to interrupt prescription on that part of the tract which is outside of the drilling or production unit. Intent must also be gathered and determined by what was contemplated by the parties under a reasonable interpretation of their agreement. When the unitization agreement is considered and tested by these guidelines, it appears and is obvious that Despot received everything that was contemplated at the time of the sale. There is no indication anywhere within the pooling and unitization agreement that the land outside the unit would be affected in any manner by the execution of the pooling agreement. Actually it was the same result as would have been obtained had the pooling agreement never been executed. There is no allegation in the answer by Despot that anything was done by the Dowlings to deliberately attempt to allow the accrual of liberative prescription by virtue of the fact that they had executive rights covering the mineral servitude.

“The court is of the opinion that if the unit comprising the S V2 of Section 20 and N V2 of Section 29 is regarded as being a compulsory unit that the drilling and production from the Dorothy Dowling No. 1 did not interrupt the running of liberative prescription on the tract involved in this suit. If you conclude that the unit was a voluntary unit then there was no intention on behalf of the parties to the pooling and unitization agreement to interrupt the running of prescription as relates to the property outside the unit.”

On this appeal Despot contends the trial court was in error in its application of the alternative theories for finding prescription had accrued on the disputed tract. A considerable portion of appellant’s brief is directed at the trial court’s discussion of the effect of considering the Dorothy Dowl-ing No. 1 unit a “voluntary unit” or a “compulsory unit,” as these terms relate to the prescription issue. We do not find it necessary to discuss appellant’s argument on this issue as we find the trial court reached the correct result by its alternate evaluation of the question under the assumption the compulsory conservation order had no effect on the previous pooling agreement. We believe the court was correct in finding the case of Elson v. Mathewes, supra, applicable to the circumstances here presented and in holding that there was no intention by the parties in executing the pooling agreement to interrupt prescription on the servitude tract lying outside the Dowling unit.

Appellant contends the trial court misconstrued the jurisprudence which holds that the advantages of a mineral servitude or royalty may be divided if the parties intend such a result. Appellant contends the execution of a voluntary pooling agreement in like manner to that done in this case, without any specific reference indicating an intent to do so by parties, does not ipso facto have the effect of dividing or reducing the servitude. We construe Elson to hold to the contrary. In clear language the majority in Elson v. Mathewes, supra stated:

Here, plaintiffs and the defendant, in the unitization and pooling contract, agreed to an interruption of prescription as to the 40-aere tract within the Dowling Unit, thereby extending the servitude as to it. However, the agreement made no mention of, and did not relate to, the remaining 51 acres (involved in this suit); and this omission along with the failure to drill on or otherwise use the 91 acres during the prescriptive period, resulted in 1947 in an extinguishment of the servitude to such extent. . .. (Emphasis Added)

Appellant also contends the trial court erred in not applying the holding in Crown Central Petroleum Corporation v. Barousse, 238 La. 1013, 117 So.2d 575 (1960) to the circumstances of this case. As pointed out by the trial judge the Crown case has been criticized in later appellate opinions and in several law reviews. Furthermore, the majority opinion in Crown ruled that it was distinguishable from Elson because a royalty interest was at issue rather than a mineral servitude. In the instant case although the trial court was reluctant to classify the interest, we clearly find it to be a mineral servitude. Although the Dowlings reserved the right to grant leases (the executive rights), their right to drill or search for minerals was not impaired. This is indicative of a mineral servitude. See Cormier v. Ferguson, 92 So.2d 507 (La.App. 1st Cir. 1957). Therefore, by the rationale employed in distinguishing Elson by the majority in Crown, that decision is not applicable to the instant case.

For the foregoing reasons and for the reasons assigned by the trial judge as quoted above which we adopt as the reasons of this court, the judgment appealed decreeing that liberative prescription has extinguished any rights of George J. Despot Trust Nos. 1 through 11 and of Rena Marie Roberts to any mineral interests in the NW Vi of the SE Vi, Section 29, Township 19 North, Range 4 West, Lincoln Parish, Louisiana, and ordering distribution of the funds held in the registry of the court is affirmed.

Costs of this appeal are assessed to appellant.

      . An extensive quote from Elson v. Mathewes, 224 La. 417, 69 So.2d 734 (La.1953) is omitted.

      . An extensive quote from Crown Central Petroleum Corporation v. Barousse, 238 La. 1013, 117 So.2d 575 (La.1960) is omitted.

      .An extensive quote from Exchange Oil & Gas Company v. Foster, 237 So.2d 904 (La.App. 1st Cir. 1970) is omitted.


author: JASPER E. JONES, Judge.

text:
    Francis L. HUGHES, Plaintiff-Appellant, v. WEBSTER PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 14878.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Jack, Jack, Cary & Cary by Paul Cary, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees.

      Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

In this workers’ compensation action plaintiff, Francis L. Hughes, appeals a judgment rejecting his demands for benefits for permanent total disability, medical expenses, interest, penalties and attorney’s fees. The defendants are the Webster Parish Police Jury (sometimes hereinafter referred to as the “Jury”) and its workers’ compensation insurer, Commercial Union Assurance Company (sometimes hereinafter referred to as “Commercial Union”).

This appeal presents two primary questions — (1) is plaintiff entitled to workers’ compensation benefits, and (2) if so, is he entitled to recover penalties and attorney’s fees by reason of Commercial Union’s termination of payments?

Hughes was employed as a mechanic in the Jury’s vehicle barn. On November 8, 1977, plaintiff was attempting to install a clutch, pressure plate and throw-out bearing in a Jury vehicle. He was underneath the vehicle on a creeper when the clutch and pressure plate, which weighed approximately 40 lbs., fell on his chest and briefly pinned him beneath the vehicle.

Immediately after the accident Hughes experienced extreme pain in the lower back, momentary blindness and he became very ill. Hughes sat and rested for approximately 30 minutes in hopes that he would begin to feel better, but when he did not he left work to see his personal physician, Dr. J. Wayne Sessions.

Hughes saw Dr. Sessions the afternoon of November 8, 1977. Upon examination of Hughes, Dr. Sessions found tenderness in the lumbosacral area and a decreased range of motion on forward and lateral bending. Dr. Sessions referred plaintiff to Dr. Donald F, Overdyke, an orthopedic surgeon.

Plaintiff first saw Dr. Overdyke on November 10, 1977. Dr. Overdyke examined Hughes and found tenderness of the lumbo-sacral region. He prescribed a back brace and thought appellant would be disabled for only 10 to 12 days.

Dr. Sessions saw Hughes on November 17, 1977, at which time he still regarded plaintiff as disabled.

Hughes returned, unimproved, to Dr. Sessions on November 26. Dr. Sessions advised him to continue his previous treatment of wearing the back brace, exercising and taking muscle relaxants. The same course of treatment was followed when Hughes returned to Dr. Sessions on December 2,1977.

Hughes returned to Dr. Sessions on December 16. The doctor still considered plaintiff disabled and attempted to treat his back pain with injections of cortisone and an anesthetic.

After Hughes returned to Dr. Sessions on December 17, still no better, he was again referred to Dr. Overdyke.

1978

On January 5, 1978, Dr. Overdyke again saw plaintiff. Though Dr. Overdyke’s examination showed his back to be healing, Hughes still complained of weakness, cramps and back pain. Dr. Overdyke prescribed a lumbosacral corset for Hughes and encouraged him to engage in as much physical activity as possible. Dr. Overdyke still considered Hughes disabled.

When Dr. Sessions saw plaintiff on January 6 and 27, he was still experiencing back pain. Dr. Sessions advised Hughes to continue following the regimen prescribed by Dr. Overdyke.

Hughes next saw Dr. Sessions on February 17. Hughes complained that he was worse, and on examination Dr. Sessions found a decreased range of motion on forward and lateral bending. Dr. Sessions diagnosed plaintiff’s condition as acute lumbar strain and considered him disabled because of pain.

Upon returning to Dr. Sessions on March 10, plaintiff complained that he was no better. After examining Hughes, Dr. Sessions could not find a reason for his continued difficulty. He decided to refer Hughes to Dr. Thomas Edwards, an orthopedic surgeon who was an associate of Dr. Overdyke.

Dr. Edwards saw plaintiff on March 13. He examined Hughes and found him totally disabled because of chronic lumbosacral pain. Dr. Edwards felt plaintiff’s prognosis was guarded. He recommended that Hughes do more back exercises in an effort to lessen his need for the back brace.

Hughes returned to Dr. Sessions on March 15 and 30. His complaints remained the same and again Dr. Sessions could not find objective symptoms to explain them. Dr. Sessions advised plaintiff to try to discontinue the use of the back brace as much as possible.

Plaintiff’s condition was unchanged when Dr. Sessions saw him on April 27. Dr. Sessions still felt that plaintiff could not return to work and decided to again refer Hughes to Dr. Edwards. Hughes was unimproved when Dr. Sessions saw him on May 19.

On May 25, Hughes was seen by Dr. Thomas A. Norris, an orthopedic surgeon. Dr. Norris found that plaintiff was not ready to return to his job as a mechanic, but thought he might be able to do light work.

On June 14, Hughes returned to Dr. Sessions unimproved. Dr. Sessions continued the previous treatments.

Dr. Edwards saw plaintiff for the second time on July 5. Dr. Edwards found him no better, and possibly worse. It was his opinion that plaintiff was having so much difficulty that he could not do back exercises. Dr. Edwards believed that plaintiff’s tension over his condition was contributing to his back problems. He felt that Hughes was still disabled; that his prognosis was very poor and the chances for his recovery grew more remote the longer his condition continued. Dr. Edwards recommended that plaintiff be evaluated at the Shreveport Pain and Rehabilitation Center.

Hughes was seen by Dr. Sessions on July 8 and 14. His condition was unimproved and the prior treatment was continued.

On July 17, 1978, plaintiff was admitted to the Shreveport Pain and Rehabilitation Center where he remained through July 21. At the Center physical and psychological evaluations of the plaintiff were performed.

The physical evaluation revealed only mild back spasm. After the psychological evaluation, psychiatric consultation was recommended, but plaintiff resisted that suggestion.

Dr. Phillip Osborne, director of the Center, testified that there were three possible diagnoses of plaintiff’s condition (1) malingering, (2) psychophysiological musculoskel-etal disorder and (3) hysterical neurosis conversion type. The primary diagnosis of the Center’s team of professionals was hysterical neurosis conversion type. They felt the least likely of the three was malingering. Dr. Osborne expressed the opinion that a psychiatric evaluation was needed to determine which of the latter two diagnoses more correctly described plaintiff’s condition.

Dr. Osborne considered plaintiff emotionally disabled and a poor candidate for treatment or vocational rehabilitation. Dr. Osborne also testified that because of plaintiff’s low intelligence he was a poor prospect for psychotherapy.

Plaintiff saw Dr. Sessions on July 24, August 7 and August 21. There was no improvement in plaintiff’s back condition but a change in medication did alleviate a problem he was having with side effects from his previous medication.

On September 5, 1978, Dr. Sessions prepared an attending physician’s statement in which he listed plaintiff as totally and permanently disabled.

Dr. Sessions again saw Hughes on September 12. He was still no better and his previous treatment was continued. There was no change when Hughes saw Dr. Sessions on October 3 and 26.

There was no change in his condition when Hughes saw Dr. Sessions on November 15. On that date Dr. Sessions again advised Hughes to engage in as much physical activity as possible. Plaintiff was unimproved when he returned to Dr. Sessions on December 13.

1979

Dr. Sessions next saw Hughes on January 12, 1979. His condition was unchanged and Dr. Sessions still considered him disabled. Hughes was the same when he saw Dr. Sessions on February 8, March 8 and April 5.

Hughes was worse when he saw Dr. Sessions on May 3. He was unimproved at the time of his June 5 appointment with Dr. Sessions. His condition was the same when seen by Dr. Sessions on August 8.

Plaintiff returned to Dr. Sessions on October 2 and November 1 complaining of back and leg pain.

When Hughes next saw Dr. Sessions on November 29 there seemed to have been some improvement in his condition and Dr. Sessions recommended increased exercise to counter plaintiff’s weakness.

1980

On January 24, 1980, Dr. Sessions found plaintiff’s condition about the same. The prior treatment was continued.

On March 13 and 26 plaintiff was examined by Dr. William Kimbell, a psychiatrist. Dr. Kimbell was of the opinion that Hughes was in pain, but he was unsure how much of the pain related to physical and how much to emotional factors. It was Kim-bell’s opinion that plaintiff was disabled.

Dr. Kimbell gave three possible diagnoses for plaintiff’s condition (1) psychophysiologic musculoskeletal reaction, (2) chronic lum-bosacral strain, or (3) disc problems. He explained that psychophysiologic musculo-skeletal reaction is a physical condition aggravated by emotional factors.

It was Dr. Kimbell’s opinion that plaintiff’s prognosis for returning to work was very poor. He also testified that Hughes was unsuitable for training for work other than manual labor.

Dr. Overdyke agreed with Dr. Kimbell’s diagnosis of psychophysiologic musculoskel-etal disorder and chronic lumbosacral strain. Dr. Osborne testified that a psychiatric diagnosis of psychophysiologic muscu-loskeletal disorder would be consistent with the Pain Center staff’s findings.

Hughes returned to Dr. Sessions on April 30. Dr. Sessions still considered him disabled at that time. Dr. Sessions subsequently saw Hughes on August 5, September 30, October 2 and November 26, 1980, and did not find his condition improved on any of those occasions. He still considered Hughes disabled as of November 26.

Hughes received workers’ compensation benefits from the date of his injury through December 4, 1979, when they were terminated by Commercial Union. Mr. Rogell W. Fortenberry, Commercial Union’s Claims Manager in its Shreveport office, testified that benefits were terminated because of plaintiff’s refusal to undergo rehabilitation, his lack of objective symptoms and “activity checks” which revealed conduct it regarded as inconsistent with the medical evidence.

The evidence established that before the injury upon which the suit is based, appellant enjoyed good health, with the exception of a minor back injury-sustained while employed by the Jury in April 1977. He worked as an employee of the Department of Agriculture and as a truck driver. When laid off by his employer he worked as a trapper and “shade tree” mechanic. He planted a large garden each year and maintained a big lawn.

The record shows that after his injury plaintiff experienced numerous incidents of pain and problems with his back. He has been unable to do any work since his injury, he plants no garden and it takes him several days to mow his yard. However, Hughes has done some hunting, trapping and fishing since his injury.

Prior to his injury Hughes was an avid hunter, trapper and fisherman. Even after his injury he has attempted to pursue those activities as much as possible. However, plaintiff has been forced to greatly curtail his outdoor activities.

Before his injury Hughes’ hunting trips often lasted all day. Now he never stays out more than three hours, and usually less. He also hunts in a much less vigorous way since the injury.

Now Hughes does most of his fishing from the bank rather than in a boat. This is so he can move around. Howard Beatty, a frequent outdoor companion of plaintiff, testified that Hughes could not remain in a boat for more than an hour before he would have to be returned to shore so he could move about to relieve his back discomfort.

Before his injury plaintiff’s income from trapping was sometimes as high as $2,500 per year. In order to earn that level of income Hughes set as many as 100 traps in the remotest possible areas.

In 1980 Hughes had an income of only $111 from trapping. He was forced to stay very near roads and set few traps. He set what traps he did set on logs and clayroots so he would not have to bend or stoop.

Hughes stopped trapping with Beatty because he was unable to keep up well enough to keep from slowing Beatty. He began trapping with his 81-year-old father instead.

The very limited outdoor activities engaged in by plaintiff were not contrary to the recommendations of Drs. Sessions, Ov-erdyke and Kimbell that he obtain as much exercise as he could compatable with his pain and disability.

The trial judge found that whatever disability plaintiff suffered was not caused by the accident of November 8, 1977, and that even if it had been, he would be barred from recovery by his failure to follow treatment and submit to rehabilitation and for these reasons rejected plaintiff’s demands.

The plaintiff in a workers’ compensation case bears the burden of proving his case by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974).

If the medical evidence shows a reasonable possibility of a causal relationship between the plaintiff’s accident and his disability, and he was in good health before the accident and shortly thereafter the symptoms of the disability appear and thereafter continuously manifest themselves, causation is presumed. Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977).

At oral argument and in brief ap-pellees have attempted to characterize appellant as a malingerer who would rather draw compensation and pursue his outdoor interests than to return to work. The proof of such a contention requires positive and convincing evidence. Miller v. United States Fidelity and Guaranty Co., 99 So.2d 511 (La.App. 2d Cir. 1957). We find no such evidence in the record and, on the contrary, find that the record shows that Hughes was totally and permanently disabled under LSA-R.S. 23:1221(2).

Every doctor was of the opinion that plaintiff was disabled. The record shows that Hughes is 49 years old, with only a 7th grade education. His pain disables him from doing manual labor and he is unsuitable for training to non-manual labor jobs. The trial judge was clearly wrong in failing to find plaintiff totally and permanently disabled. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We also find that plaintiff’s disability was caused by the accident of November 8, 1977.

Hughes is a person of unusual emotional characteristics. It is true, as the trial judge found, that those characteristics preexisted the accident. However, an employer takes his employee as he finds him and an employee’s disability is compensable when a non-disabling pre-existing condition is activated or precipitated into disabling manifestations as a result of injury. Crawford v. Al Smith P. & H. Services, Inc., 352 So.2d 669 (La.1977); Lucas, supra.

The record here shows that the injury Hughes suffered would have disabled most workers for only a few weeks. However, because of plaintiffs peculiar emotional make up this generally minor physical injury has operated to produce a permanent disability with both physical and emotional causes.

Hughes is entitled to the Lucas presumption that the accident and injury which occurred on November 8,1977 caused his disability. Before the accident Hughes was in good health. Immediately after the accident Hughes began experiencing back pain which still disables him. This presumption of causation is unrebutted and the trial judge erred in not giving plaintiff its benefit.

Having found that Hughes is disabled and that his disability was caused by the accident of November 8, 1977, we now turn to the question of whether he is barred from recovery by his failure to follow treatment and to submit to rehabilitation. In so finding the trial judge relied on this court’s opinion in American Home Assur. Co. v. Johnson, 373 So.2d 742 (La.App. 2d Cir. 1979).

American Home stands for the proposition that an employee may be barred from recovering compensation benefits when he has willfully and unreasonably refused or failed to follow a prescribed program of rehabilitation which is reasonably expected to rehabilitate him for work and the employer shows by clear, convincing and conclusive proof that the failure to follow treatment is the cause of the continuing disability.

Here the evidence shows that the reason appellant did not perform some of the prescribed exercises was that they were too painful. Dr. Edward testified that plaintiff’s condition was such that he did not think Hughes could do back exercises. Plaintiff’s failure to perform the exercises cannot be called willful or unreasonable.

Appellant also refused to submit to a rehabilitation program to be paid for by Commercial Union and administered by Ms. Rose Shempp. However, his recovery is not barred by that refusal.

There is no evidence that the offered rehabilitation program was designed to deal with disabilities, such as plaintiff’s, which are at least partly psychological, nor that this program would have eliminated plaintiff’s disability. Further, there is much evidence in the form of testimony by Drs. Edwards, Osborne, Kimbell and Sessions, that plaintiff was a poor prospect for rehabilitation. We also note that though plaintiff’s chances for recovery grew more remote the longer his disability continued, Commercial Union did not offer the rehabilitation program to Hughes until fourteen months after the accident. The defendants have not shown by clear, convincing and conclusive proof that appellant’s continuing disability is due to his failure to undergo the offered rehabilitation program.

The trial judge was clearly wrong in finding that appellant’s recovery would be barred by his failure to follow treatment or submit to rehabilitation.

We now consider Commercial Union’s liability for penalties and attorney’s fees under LSA-R.S. 22:658.

Whether or not the discontinuance of workers’ compensation benefits is arbitrary and capricious depends primarily on the facts known to the employer or insurer at the time benefits are terminated. Arthur v. McConnell, 286 So.2d 499 (La.App. 2d Cir. 1973).

The peculiar facts and circumstances of each case control whether penalties and attorney’s fees should be awarded. Gauthier v. Employers National Insurance Co., 316 So.2d 769 (La.App. 1st Cir. 1975); writ refused 320 So.2d 911 (La.1975).

Penalties and attorney’s fees should not be awarded when there are legitimate disputes as to the extent or cause of the claimant’s disability. Perrin v. Hartford Accident & Indemnity Company, 248 So.2d 58 (La.App. 1st Cir. 1971); Webb v. Turbex Const. Co., 368 So.2d 789 (La.App. 2d Cir. 1979); Weller v. Brown, 398 So.2d 551 (La.App. 1st Cir. 1979).

The propriety of an award of penalties and attornéy’s fees is an extremely close question in this case. Appellant argues the penalties and attorney’s fees should be awarded because at the time the insurer terminated his benefits he had not been released for work by any of the several doctors who had seen him. While it is true that the insurer had no releases from any doctor at the time it terminated benefits, it is also true that for quite some time before that appellant had not displayed any objective symptoms. We note that Dr. Kimbell did not examine appellant until March, 1980, four months after benefits were terminated. There is no indication that Commercial Union was informed of the results of those examinations until the trial. That Commercial Union was not notified of this information further negates appellant’s attempted showing of arbitrary and capricious conduct by Commercial Union. The insurer also knew plaintiff was engaging in some hunting and trapping activities when it made the decision to terminate benefits.

The above mentioned factors, coupled with the fact that a disability of the nature of plaintiff’s is a type that an unscrupulous claimant might attempt to feign, created a sufficient question of the extent and cause of plaintiff’s disability to render Commercial Union’s termination of benefits not arbitrary, capricious or without probable cause. Appellant is not entitled to penalties and attorney’s fees.

The judgment of the district court rejecting plaintiff’s demands for workers’ compensation benefits is reversed and judgment is rendered in favor of plaintiff, Francis L. Hughes, and against the defendants, Commercial Union Assurance Company and the Webster Parish Police Jury, in solido, for benefits for permanent total disability in the amount of $116 per week, commencing November 8,1977, with credit for payments made through December 4, 1979, with legal interest on each payment from the date due until paid, together with medical expenses in the amount of $530.30 with legal interest from due date until paid, and for all costs.

The judgment as AMENDED is AFFIRMED.

      . It was stipulated that Hughes was employed by the Jury and the accident of November 8, 1977 occurred in the course and scope of his employment, and that if benefits are due the proper amount is $116 per week.
      Commercial Union stipulated that there was coverage for any workers’ compensation benefits owed.

      . R.S. 23:1221 — Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

      (2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training and experience, sixty-six and two-thirds per centum of wages during the period of such disability.

      . A disability is nonetheless real because its causation is imaginary. The test is whether the employee is sincere in his belief that he suffers a disability resultant of a real injury. Miller v. United States Fidelity and Guaranty Co., supra.

      The case of Babineaux v. Consolidated Alum. Corp., 389 So.2d 818 (La.App. 3d Cir. 1980), relied on by appellees is inapposite. In that case there was testimony by one doctor that the plaintiff was a malingerer and another had released him for work. Here no doctor had released Hughes for work and there is no testimony that he is a malingerer, while there is contrary testimony.

      . R.S. 22:658 — All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.

      . Decisions construing R.S. 23:1201.2 are persuasive in construing R.S. 22:658. Roberie v. Ashy Construction Company, 215 So.2d 857 (La.App. 3d Cir. 1968), writ refused 217 So.2d 414 (La.1969).

      . See also McDonald v. International Paper Co., 406 So.2d 582 (La.1981), where an award of penalties and attorney’s fees was reversed by the supreme court in a case where all medical evidence produced at trial established worker’s death was due to work-related stress. The court there said:
      “Whether the work-related mental and emotional stress was extraordinary or any greater than that of everyday life, and whether this stress was a real cause of the employee’s heart attack were serious questions that could only be resolved by trial. The employer’s failure to pay benefits within sixty days under those circumstances, was not arbitrary, capricious, or without probable cause.” (Id. at 584.)


author: NORRIS, Judge.

text:
    W. E. WELDON, Plaintiff-Appellant, v. REPUBLIC BANK, et al., Defendants-Appellees.
    No. 14879.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    Robert W. Raley, Bossier City, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff appeals the trial court’s sustaining of an exception of prematurity assigning the following two errors: (1) the trial court’s sustaining of the exception when plaintiff’s cause of action was based on abuse of process; and, (2) the trial court’s sustaining of the exception on the facts presented.

Our review of the record reveals that plaintiff filed a petition in tort alleging that defendants, Republic Bank and David Touchstone, attorney for Republic Bank, filed a suit in United States District Court, Western District of Louisiana, Shreveport Division, on June 26,1980, entitled “Republic Bank, Shreveport, Louisiana (formerly Peoples Bank & Trust Company) versus United States of America, C. C. Pate, W. E. Weldon, and Jack Chivatero” bearing docket number 801011. In the following pertinent paragraphs of his petition, plaintiff contends in this action that the statements contained within the pleadings of that federal court suit were libelous and that the allegations and the suit were an abuse of civil process:

“12
Petitioner shows these statements pertaining to Petitioner were false, unwarranted, unnecessary, and malicious and made without probable cause or reason and Petitioner shows that the above-referenced language amounts to a libel of your petitioner in that it accuses him of a violation of the law when same was not true.
“13
In addition to the libel, petitioner shows that the allegations and suit against your petitioner were an abuse of civil process, used only for the purpose of harassing and embarrassing your petitioner.
“17
The improper use of the civil process and inclusion of petitioner was completely immaterial and irrelevant to the assertion of any of the Defendants’ rights in said lawsuit, calculated on the part of the Defendants to cause damage to petitioner, W. E. WELDON, in the amounts here-inabove set forth in the above paragraphs and for the reasons set forth therein.”

Service was duly made on defendants who then filed this dilatory exception alleging that this action is one “grounded in libel,” the allegations being based on pleadings filed in the aforereferenced Federal Court suit, and that the Federal Court action has not reached a final judgment. Therefore, defendants contend that the libel action filed in state court is premature. After a hearing on the exception, the trial court rendered judgment sustaining the exception of prematurity and dismissing plaintiff’s suit without prejudice.

La.Code of Civil Procedure Art. 926 provides for the dilatory exception of prematurity. It has long been recognized that the question of prematurity of a demand must be determined by the state of facts existing at the time the suit is brought. See City Inv. Co. v. Williams, 171 La. 848, 132 So. 367 (1931). Manuel v. Deshotels, 160 La. 652, 107 So. 478 (1926).

However, the record in the instant case is devoid of any facts which the trial court may or may not have considered in arriving at its conclusion that this action was premature. There is no transcript of the hearing on the exception, no narrative of facts, no written or oral reasons for judgment, and no exhibits. Although the judgment signed by the trial court refers to “the stipulation of the parties,” we have been unable to locate any stipulation, either in the record available to us or in the trial court. Therefore, in considering this case we will apply the presumption that the judgment of the trial court, insofar as it relates to factual issues, was based on suffi-dent and competent evidence since it is appellant’s duty to produce the transcript or evidence necessary to show the contrary. La.Code of Civil Procedure Arts. 2130 and 2131. See Vincent v. Penrod Drilling Co., 372 So.2d 807 (La.App. 3rd Cir. 1979), writ denied 375 So.2d 646 (1979); Iles v. White, 345 So.2d 1304 (La.App. 3rd Cir. 1977); Shannon’s Refrigeration Service Contractors, Inc. v. General Oilfield Trucking, Inc., 277 So.2d 457 (La.App. 1st Cir. 1973).

The question of fact presented by this appeal is the existence of the pending Federal Court suit at the time of the filing of this action. Therefore, for purposes of considering the propriety of the sustaining of the exception, we will presume that at the time of the filing of the lawsuit by plaintiff, there was an ongoing Federal Court action which had not terminated prior to the filing of the instant suit.

Thus, under the prevailing jurisprudence, if plaintiff’s action is one solely based on libelous allegations contained within that Federal Court suit, the granting of the exception of prematurity must be upheld because the jurisprudence has consistently held that such actions based on earlier judicial proceedings cannot be brought until that proceeding is terminated.

In Calvert v. Simon, 311 So.2d 13 (La.App. 2d Cir. 1975), involving a suit based on libel and slander arising out of false allegations and testimony in another suit and this exact issue, we stated:

With the exception of one recent decision by the Fourth Circuit Court of Appeal, the jurisprudence of this state has consistently and unequivocably held that an action for libel or slander arising out of allegations or statements made in a judicial proceeding cannot be brought by a party to the judicial proceeding until the proceeding is terminated. The rule has been applied equally and without distinction to libel and slander actions instituted by reconventional demand or by separate suit. An authoritative expression of the rule was made by this court in Udell, Inc. v. Ascot Oils, Inc., 177 So.2d 178 (La.App. 2d Cir. 1965), with Judge H. W. Ayres as author of the opinion:
“... The rule is well established in the jurisprudence of this State that a cause of action for defamatory statements set forth in the pleadings of a civil action does not arise or come into existence until final determination of such suit, and, therefore, a claim for damages for an alleged libel set forth in the pleadings may not form the basis for a reconven-tional demand in the pending suit. Carnes v. Atkins Bros. Co., 123 La. 26, 48 So. 572 (1909); W. B. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663 (1911); Wolf v. Royal Ins. Co., 130 La. 679, 58 So. 507 (1912); Manuel v. Deshotels, 160 La. 652, 107 So. 478 (1926); Howard v. Coyle, 163 La. 257, 111 So. 697 (1927); Robinson Mercantile Co. v. Freeman, 172 So. 797, La.App. 1st Cir. 1937; Wilson Sporting Goods Co. v. Alwes, 21 So.2d 102, La.App. 1st Cir. 1945 (writ of error refused); Thomas v. Mobley, 118 So.2d 476, La.App., 1st Cir. 1960. The rule was concisely stated in Robinson Mercantile Co. v. Freeman, supra, wherein this language was employed:
‘It is also well settled in the jurisprudence of this state that an action for libelous statements made by a party litigant cannot be maintained until the proceeding in which such allegations are made has terminated, as the cause of action does not arise until the party making the allegations has had the opportunity of proving the truth of the allegations in the proceedings in which they are made. See Manuel v. Deshotels et. al., 160 La. 652, 107 So. 478. And it is also well settled in our jurisprudence that an action for defamatory allegations cannot be made the basis for damages by a re-conventional demand until the final termination of the main demand, and that such claim for damages are (sic) premature; that the claim for damages comes in esse only after the litigant making the charges has been given an opportunity to prove them in the suit in which they are made and has failed to make such proof. See Howard v. Coyle, et al., 163 La. 257, 111 So. 697; W. B. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663.’
“This statement of the rule was approved by the Supreme Court in Loew’s, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553, 561 (1959).”
A libel action was instituted by a separate suit in Manuel v. Deshotels, 160 La. 652, 107 So. 478 (1926). The court held:
“The contention of the appellees is that when a suit for damages for libel is based upon allegations contained in another suit, the second suit must await the termination of the action wherein the defamatory averments are made. We think this is correct. Wolf v. Ins. Co., 130 La. 679, 58 So. 507, and authorities cited therein.”
******
Louisiana law permits recovery by a party damaged by libelous statements made without probable cause and with malice by another party in a judicial proceeding, but consistent with orderly procedure and the concept of unhampered expression in the course of litigation, requires the party claiming such damage to await the determination of the original proceeding. Although the outcome of the original proceeding may not necessarily determine the issue of whether a party thereto can subsequently recover for libelous statements made therein, in most cases the outcome of the original suit will have a strong bearing on determination of that issue. (Emphasis added.)

In Calvert, supra, we concluded that plaintiff’s cause of action had not yet come into existence; therefore the suit was premature and failed to state a cause of action in defamation. The same reasoning and conclusion is equally applicable in the instant case insofar as plaintiff’s petition attempts to state a cause of action in defamation (libel).

We have also considered plaintiff’s petition to determine whether or not it states or attempts to state a cause of action other than in libel. In so doing, we have applied the principle that every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency. See Hero Lands Co. v. Texaco, 310 So.2d 93 (La.1975). We have sought to determine whether or not it states a cause of action for malicious prosecution. While an action in defamation (libel) differs from an action for malicious prosecution, i.e., the malicious commencement or continuance of a suit without probable cause for purposes of harassment [See Lees v. Smith, 363 So.2d 974 (La.App. 3rd Cir. 1978)], courts have long applied the rule that a cause of action for damages for malicious prosecution does not come into existence until the termination of the prosecution, the theory being that the prosecution may terminate unfavorably to the plaintiff claiming damages therefrom, in which event the court would have uselessly given time to the determination of plaintiff’s damages. W. B. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663 (1911). Thus, one of the six necessary elements of such an action is its bonafide termination in favor of the present plaintiff. Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975). Only after such a favorable termination, may the original party defendant bring an action for malicious prosecution. Therefore, an action for malicious prosecution brought prior to a favorable termination would also be premature.

Thus, we note ex proprio motu the failure of plaintiff’s petition to state a cause of action either for defamation (libel) or for malicious prosecution, La.CCP Art. 927; Evans v. West, 357 So.2d 916 (La.App. 2d Cir. 1978), because there is no allegation contained therein that the federal suit complained of was terminated prior to the institution of the instant action.

However, plaintiff asserts by way of his brief, that his petition states a cause of action for abuse of civil process and that an exception of prematurity will not lie as to that cause of action. We have again reviewed his petition in regard to this contention and conclude that it additionally fails to state a cause of action for abuse of civil process.

We have addressed the issue of the exception of no cause of action in a suit for “abuse of process” in Mini-Togs, Inc. v. Young, 354 So.2d 1389 (La.App. 2d Cir. 1978). In addressing this issue, we stated:

... The plaintiff’s contend that, because of the defendant’s ulterior motive in seeking to accomplish protection for the jobs of union members rather than protection for his City of Monroe bonds, the defendant has committed the tort of abuse of process by the institution of the earlier suit.
The petition contains no allegation of irregularity of process in the earlier suit, nor any allegation that the defendant’s legal proceedings within themselves contain any defect. William A. Prosser, Law of Torts, Hornbook Series, at page 877 sets forth the essential elements of abuse of process as follows:
“The essential elements of [abuse of] process, as the tort has developed, have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding.” (Emphasis added.)
In 1 Am.Jur.2d Abuse of Process we find the following explanation with regard to the elements and requirements of abuse of process:
§ 4
... While the existence of an ulterior motive may, perhaps, be inferred from the fact that the process has been misused or misapplied, the reverse is not true, for if the act of the prosecutor is in itself regular, the motive, ulterior or otherwise, is immaterial.
An ulterior motive or a bad intention in using the process is not alone sufficient, the bad intent must have culminated in the abuse, for it is the latter which is the gist of the action. An action for abuse of process cannot be maintained where the process was employed to perform no other function than that intended by law. Thus the mere issuance of process is not actionable as an abuse of process; there must be use of the process, and that use must of itself be without the scope of the process, and hence improper.... (Emphasis added.)
* * * * * *
§ 12
But there must be some “abuse” of the writ or process issued, or intent to accomplish a result not lawfully or properly attainable. Even if the moving party had an ulterior purpose in making use of the writ, if there was no “abuse” there is no cause of action.
* si! >H * * *
§ 13
... If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse, even if the plaintiff had an ulterior motive in bringing the action. ..
In 72 C.J.S. Process § 120, at page 1192, essential elements of abuse of process are explained as follows:
A legal and legitimate use of process, to effect the result which such process is designed by law to accomplish, is not an abuse thereof. Regular use of process cannot constitute abuse, even though the user was actuated by a wrongful motive, purpose, or intent, or by malice.
In Italian Star Line v. United States Board E. F. Corp., 2 Cir., 53 F.2d 359, 361, the plaintiff’s abuse of process action was based upon ulterior motives, and was denied because there was no irregularity in the process. The court stated:
“... Cooley asserts that two elements must exist: First, an ulterior purpose; and, second, ‘an act in the use of the process not proper in the regular prosecution of the proceeding.’ .... We shall assume that the evidence would justify the jury in finding an ulterior purpose on the part of Goff and Conrad in instigating the receivership proceeding in the name of the United States, namely, the purpose to get access to the records of the company and its president, for use in the contemplated criminal prosecution. We may also assume, without decision, that the acts and motives of Goff and Conrad should be imputed to the Emergency Fleet Corporation. But an improper motive alone is not enough to make the institution of the receivership proceeding an abuse of process. Whatever the motive, the obtaining of the appointment of the receiver was entirely regular. The plaintiff was indebted to the United States, and its attorney consented to the proceeding. The validity of his consent has been adjudicated in that proceeding and cannot be collaterally attacked. To make out its case, the plaintiff must prove irregular steps taken under cover of the process after its issuance, and damage to the plaintiff resulting therefrom.” (Emphasis added.)
Under this cause of action plaintiffs must allege irregularity in the process itself, and plaintiffs have failed to do so. The object of the defendant’s earlier suit was to stop the transfer. There is nothing illegal about this object. Plaintiffs admit that the defendant’s legal attempt to reach this result within itself does not constitute the tort. Plaintiffs claim the tort arises because the defendants were motivated to take care of the jobs of 30 union members. The fact defendant’s motives differ from the object of their suit alone does not constitute abuse of process. An irregularity in the earlier proceedings must also be shown.
Abuse of process is recognized in Gonsouland v. Rosomano, 176 F. 481 (C.A. 5th Cir. 1910). The defendant in a suit for rent had seized property not subject to the lessor’s lien, and had made seizures of items on the leased premises which were legally exempt. This represents a true abuse of process. The court correctly recognized that common law abuse of process was a cause of action which could be asserted under C.C. Art. 2315.
In Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir., 1976), the court listed the essential elements of a cause of action for abuse of process as follows:
“... (1) the existence of an ulterior purpose; (2) a wilful act in the use of the process not proper in the regular prosecution of the proceeding.” (Citations omitted.)
While the plaintiffs here have abundantly alleged the first element of ulteri- or motive, they have failed to allege the second element of irregularity in the proceedings. As was said in the decision of Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So.2d 171 (1957), what the plaintiff complains of is “not based on any perversion of any process but simply the filing of the suit.”

Our analysis and the jurisprudence discussed in Mini-Togs is equally applicable to the instant case and leads us to conclude that plaintiff’s petition fails to state a cause of action for abuse of process because plaintiff has failed to allege a wilful act in the use of the process not proper in the regular prosecution of the proceeding. He only alleges that the suit was filed with an ulterior motive. '

Our conclusion that plaintiff’s petition fails to state a cause of action for abuse of process pretermits the necessity for addressing the issue of the exception of prematurity as it relates to such a cause of action.

In summary, we have viewed the record of this proceeding to determine whether or not this action is premature. We have concluded that plaintiff’s petition fails to state a cause of action for defamation (libel) or for malicious prosecution because it fails to allege the termination of the lawsuit upon which its allegations are based or for abuse of process because it fails to allege a wilful act in the use of process not proper in the regular prosecution of the proceeding. While we further conclude that the better exception would have been one of no cause of action, we conclude that an exception of prematurity will also lie in an action for defamation (libel) or malicious prosecution. Because of our further conclusion that plaintiff’s petition fails to state a cause of action for abuse of process, it is unnecessary that we determine whether or not the exception of prematurity is applicable in that regard.

Accordingly, the judgment of the trial court sustaining the exception of prematurity and dismissing plaintiff’s suit without prejudice is affirmed at plaintiff’s cost.

AFFIRMED.

      . We note that within his brief, plaintiff interchangeably uses the terms “abuse of right” and “abuse of process.” While we recognize that the doctrine of “abuse of rights” is firmly rooted in the civil law, we construe it to be the broader term which encompasses and includes an action for abuse of process when the right involved allegedly abused is the right to sue. We also consider actions for defamation and for malicious prosecution to come within the broad, general doctrine of “abuse of rights,” relating to the right to sue. The jurisprudence has formulated specific elements necessary to state a cause of action relating to these different abuses of right involving legal proceedings, which elements are discussed at greater length within the body of this opinion.


text:
    C. C. PATE, Plaintiff-Appellant, v. REPUBLIC BANK, et al., Defendants-Appellees.
    No. 14880.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    Robert W. Raley, Bossier City, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff appeals the trial court’s sustaining of an exception of prematurity assigning the following two errors: (1) the trial court’s sustaining of the exception when plaintiff’s cause of action was based on abuse of process; and, (2) the trial court’s sustaining of the exception on the facts presented.

Our review of the record reveals that plaintiff filed a petition in tort alleging that defendants, Republic Bank and David Touchstone, attorney for Republic Bank filed a suit in United States District Court, Western District of Louisiana, Shreveport Division, on June 26,1980, entitled “Republic Bank, Shreveport, Louisiana (formerly Peoples Bank & Trust Company) versus United States of America, C. C. Pate, W. E. Weldon, and Jack Chivatero” bearing docket number 801011. Plaintiff contends in this action that the statements contained within the pleadings of that federal court suit were libelous and that the allegations and the suit were an abuse of civil process in the following pertinent paragraphs:

“12
Petitioner shows these statements pertaining to Petitioner were false, unwarranted, unnecessary, and malicious and made without probable cause or reason and Petitioner shows that the above-referenced language amounts to a libel of your petitioner in that it accuses him of a violation of the law when same was not true.
“13
In addition to the libel, petitioner shows that the allegations and suit against your petitioner were an abuse of civil process, used only for the purpose of harassing and embarrassing your petitioner.
* * * * * *
“18
The improper use of the civil process and inclusion of petitioner was completely immaterial and irrelevant to the assertion of any of the Defendants’ rights in said lawsuit, calculated on the part of the Defendants to cause damage to petitioner, W. E. Weldon, in the amounts herein-above set forth in the above paragraphs and for the reasons set forth therein.

Contained within that transcript is the argument of counsel in support of each’s respective positions. There is a reference to the introduction into evidence of certain documents, including the record of the Federal suit in question. However, this record contains no exhibits whatsoever.

In oral reasons, contained within that transcript the Trial Court found that there was an ongoing suit. For purposes of this appeal, we will presume that this finding of fact was based on sufficient and competent evidence and is correct since it is appellant’s duty to produce evidence necessary to show the contrary. La.Code of Civil Procedure Arts. 2130 and 2131. See Vincent v. Penrod Drilling Co., 372 So.2d 807 (La.App. 3rd Cir. 1979), writ denied 375 So.2d 646 (1979); Iles v. White, 345 So.2d 1304 (La.App. 3rd Cir. 1977); Shannon’s Refrigeration Service Contractors, Inc. v. General Oilfield Trucking, Inc., 277 So.2d 457 (La.App. 1st Cir. 1973). We thus conclude that at the time of the filing of this lawsuit by plaintiff, there was an ongoing Federal Court action which had not terminated prior to the filing of the instant suit.

Service was duly made on defendants who filed this dilatory exception, alleging that this action is one “grounded in libel,” the allegations being based on pleadings filed in the aforereferenced Federal Court suit, and that the Federal Court action has not reached a final judgment. Therefore, defendants contend that the libel action filed in this court is premature. After a hearing on the exception, the trial court rendered judgment sustaining the exception of prematurity and dismissing plaintiff’s suit without prejudice.

The issues presented in connection with this appeal are identical to those raised in Weldon v. Republic Bank, et al., 414 So.2d 1361, rendered this date.

For the reasons set forth therein, we affirm the judgment of the trial court sustaining the exception of prematurity and dismissing plaintiff’s suit without prejudice at plaintiff’s cost.

AFFIRMED.