author:
LUTHER F. COLE, Associate Justice Ad Hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Robert BICE.
    No. 81-KA-0322.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    Rehearing Denied Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Larry P. Boudreaux, Thibodaux, for defendant-appellant.
   LUTHER F. COLE, Associate Justice Ad Hoc.

Defendant Robert Bice was charged in separate bills of information with attempted second degree murder, La.R.S. 14:27, 14:30.1; and armed robbery, La.R.S. 14:64. The prosecutions were consolidated, and after trial by jury beginning on December 3, 1979, defendant was found guilty as charged of both offenses. On December 21, 1979, the trial court denied defendant’s application for a new trial and thereafter sentenced him to sixty years’ imprisonment at hard labor for the armed robbery charge, and fifty years at hard labor for the attempted murder, the sentences to run concurrently. Defendant appealed the convictions and sentences to this Court, urging nine assignments of error, including error by the trial court in its denial of defendant’s motion for a new trial. This court summarily affirmed, but remanded the case for a rehearing of the motion for a new trial. See, State v. Bice, 390 So.2d 1270 (La.1980). Upon remand, the refusal of the sole witness to testify resulted in the defense attorney making a motion to continue or to leave the record open, or in the alternative, a new trial. The trial court denied the motions. Defendant now appeals the adverse ruling urging two assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

By these assignments defendant contends the trial court committed error in denying defendant’s motion to delay the rehearing of the motion for a new trial, or in the alternative, to grant the new trial.

The following facts were adduced during the trial. Harold Scallon recruited defendant, together with Ernest Arceneaux and John Costales, in a plan to extort money from a Doris Guidry. The defendant and the others allegedly forced their way into the victim’s home, and thereafter, shot and stabbed her. The defendant took the stand and claimed an alibi. During the recess which followed defendant’s testimony, the prosecutor informed defense counsel of a statement by Scallon to the effect the defendant did not directly participate in the assault on the victim. However, when called to the stand by the defense, Scallon invoked his privilege against self-incrimination on the grounds proceedings arising out of this incident were still pending against him.

At the hearing on defendant’s original motion for a new trial, counsel testified he had talked with Scallon in the parish prison after defendant’s conviction and Scallon had completely exonerated defendant of any involvement in the offense. Scallon himself was called to the stand during the hearing on the motion for a new trial but, with his own trial still pending, re-invoked his 5th Amendment privilege. To resolve this impasse, counsel suggested the trial court postpone ruling on the motion until after Scallon’s trial date. Both counsel’s request for delay and his motion for a new trial were denied. State v. Bice, supra, 390 So.2d at 1271.

At oral argument in this Court, counsel then suggested that Scallon had negotiated a plea bargain with the state and was therefore available to testify. Consequently, he moved in this Court for a remand in order to pursue Scallon’s testimony. This Court noted Scallon’s testimony was now apparently available where it had not been before, and remanded the case for rehearing of the motion.

The rehearing on the motion for a new trial was held on January 15, 1981. At the rehearing, the only witness called to the stand was Scallon. When questioned by defense counsel, Scallon again asserted his 5th Amendment privilege against self-incrimination, this time justifying his refusal on grounds of a recent habeas petition filed in his behalf. Based on the witness’ refusal to testify, defense counsel moved for a continuance of the rehearing until such time as Scallon would testify. The trial judge denied this motion, stating in pertinent part:

“I have had the rehearing on the motion for a new trial, and Mr. Scallan has again taken the Fifth Amendment. Unless the Louisiana Supreme Court orders me to have a rehearing to the rehearing for a new trial, as far as I am concerned this is a conclusion of that matter. My ruling is that the rehearing on the motion for a new trial is denied.”

This court has held repeatedly the test to be applied in considering a motion for a new trial based on newly discovered evidence is whether the new evidence is so material that it ought to produce a different result from the verdict rendered at trial. State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (La.1980); State v. Molinario, 383 So.2d 345 (La.1980). The trial judge has considerable discretion in evaluating the impact of newly discovered evidence on the verdict, and his ruling will not be disturbed absent a clear showing of abuse of that discretion. State v. Spell, supra; State v. Manning, supra; State v. Reed, 378 So.2d 923 (La.1979).

In the instant case, defense counsel had made several attempts to place before the trial judge allegedly exculpatory testimony of a co-participant. In its per curiam opinion, this court noted:

“Defendant’s appeal is still pending, and Scallon’s testimony is now apparently available where it was not before. We therefore deem it appropriate to remand this case for rehearing of the motion. The trial court is to determine in the context of the entire record whether Scal-lon’s testimony is so compelling that it ought to produce a different result before a different jury. State v. Manning, supra. In the event of adverse ruling, we reserve to defendant the right to appeal the denial of his motion for a new trial.” State v. Bice, 390 So.2d at 1271—72.

The reason stated by this court for a remand is no longer present. Scallon’s testimony is not available. Any attempt to determine the time-frame involved in concluding Scallon’s habeas corpus remedies would be merely speculative. Additionally, the defense has not made a showing the evidence (Scallon’s testimony) it intends to utilize to support his motion for a new trial will at some time become available. There being no new evidence adduced and no indication as to the future availability of Scal-lon’s testimony, the trial judge did not abuse his discretion in denying defendant’s new trial and continuance motion.

There have been suggestions that under the proper circumstances the court should have the authority to grant immunity to defense witnesses where they have knowledge of evidence favorable to the accused. Not only was the issue of judicial immunity not presented by defense counsel during the trial, nor is it now urged on appeal, the defendant possesses no statutory or constitutional right to defense witness immunity. See, State v. Mattheson, 407 So.2d 1150 (La.1981). The only remedies available to defense counsel were an indefinite continuance or witness immunity. Counsel opted correctly for the former, there being no authority for the latter.

In light of defendant’s numerous attempts to obtain the witness’ testimony and the inability of defense counsel to insure a conclusion of the matter in the near future, we conclude the trial court did not abuse its discretion in denying defendant’s motions and, therefore, find the assigned errors to be without merit.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

Scallon had been convicted and his conviction had become final when he was called as a witness at the hearing on defendant’s motion for a new trial. However, he had filed a post-conviction writ, which was then pending.

The trial judge should have either (1) continued the hearing on defendant’s motion until Scallon’s post-conviction writ was disposed of, or (2) denied Scallon the right to invoke the privilege against self incrimination as to an offense in which his conviction has become final.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr., of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc., joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Defendant labeled this motion as one for a continuance. After a scheduled trial of hearing begins the appropriate delay is a recess. See, La.C.Cr.P. Art. 708. However, this court will examine the motion as though properly denominated, by the same standards applicable to a continuance. State v. White, 389 So.2d 1300 (La.1980).

      . Defendant’s new trial motion was based, inter alia, on a claim of newly discovered evidence. La.C.Cr.P. Art. 851(3); State v. Brooks, 386 So.2d 1348 (La.1980).

      . Scallon took the 5th Amendment each time he was called as a witness during the course of this prosecution, including the rehearing of the motion for a new trial.

      . La.C.Cr.P. Art. 854(4) requires that the defendant or his counsel show, “[t]hat the witnesses or evidence are not beyond the process of the court, or are otherwise available.”

      . See Justice Lemmon’s concurrence to the pri- or opinion in this case. State v. Bice, supra, 390 So.2d at 1272.

      . When a witness has been convicted and his direct appellate remedies have been exhausted, he has no absolute right to claim the privilege against self-incrimination as to the crime for which he was convicted. See 8 J. Wigmore, Evidence § 2279 (McNaughton rev. 1961), as discussed in Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771, 780 (Pa.1977).
      The assertion of the privilege under those circumstances should not be routinely approved. Rather, the trial judge should rule on the assertion according to the facts and circumstances of the particular case, weighing the interest of justice in the presentation of the evidence against the likelihood that the witness’ final conviction will be overturned. In the event the privilege is denied and the witness does ultimately obtain a reversal of the conviction, the witness can be protected by the exclusion of the incriminating testimony at the retrial.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Mrs. Myrtle K. POCHE v. MARYLAND CASUALTY COMPANY and Ellen Poche.
    No. 12098.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 1981.
    Rehearing Denied Jan. 21, 1982.

      Edward J. Norton, Jr., New Orleans, for plaintiff-appellant.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, C. T. Williams, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals a jury verdict which dismissed her lawsuit for damages as a result of a fall in her daughter’s home. The facts are basically undisputed.

Mrs. Myrtle K. Poche was visiting her daughter, Ellen, who lived in a shotgun house with a kitchen in the rear. Ellen and her roommate owned two chihuahuas which were kept in the yard during the day and were brought inside each evening. The dogs slept in the kitchen and were restrained there by use of a three-part barricade. The first part, a wooden board, was placed on the floor across the doorway and was approximately ten inches high. A three foot square piece of wire hardware cloth secured to a wooden frame was placed against the board and a heavy chair placed against the board and wooden frame held it together. It was customary to let the dogs out in the morning and move the barricade from the doorway.

Only two witnesses appeared at trial. Mrs. Poche provided the circumstances leading to her accident and Dr. James T. Williams described her medical treatment.

Mrs. Poche testified that her daughter lived in this same house for five years, always kept dogs, and always used the barricade to keep the dogs in the kitchen overnight. Mrs. Poche had spent prior nights at her daughter’s home and the frequency of her visits was established as “occasionally”.

On April 30, 1978 Mrs. Poche slept at Ellen’s home. She awoke the next morning at approximately 6:00 a.m. and on the way to the bathroom noticed that the barricade was in place. Mrs. Poche returned to bed and a few minutes later Ellen told her mother she was leaving for work and that the dogs were in the yard. Ellen stated that her roommate was sleeping and asked her mother to put the dogs back into the kitchen if they began barking. About 7:30 a.m. Mrs. Poche heard the dogs barking, got out of bed, and attempted to go through the kitchen to the yard when she fell over the board which was still across the kitchen doorway. The larger wooden frame and chair had been removed. As a result of the fall Mrs. Poche suffered a fractured right arm which Dr. Williams testified resulted in a partial functional loss of the right shoulder.

Plaintiff urges that her daughter was negligent because the barricade’s potential to cause injury was foreseeable. Mrs. Poche also alleges that her daughter was additionally negligent when she specifically requested that the dogs be brought back into the kitchen but failed to warn that the lower board was in place which presented the most dangerous and least obvious obstacle. Plaintiff maintains she was free from negligence because she acted in a reasonable manner.

The defendant insurer agrees that Ellen had a duty to inform her mother of the barricade’s existence and the manner it was used. But defendant argues that the record clearly establishes this duty was fulfilled because plaintiff admitted she knew that her daughter had used the same barricade for the same purpose and in the same place for at least five years. Most importantly, and unfortunately, Mrs. Poche testified that she suffered a previous fall over this barricade in the identical location several years earlier.

The jury was not presented with interrogatories so we do not know how it resolved these facts in dismissing plaintiff’s lawsuit. However, we feel this barricade presented an obvious potential for injury which could be considered dangerous to unsuspecting persons, especially if the chair and screen board had been removed leaving the less conspicuous bottom board in place. Additionally, when the daughter requested plaintiff bring the dogs back into the kitchen she knew her mother would have to walk through the kitchen doorway, but she gave no warning to avoid the lower board. Plaintiff argues her daughter’s conduct constituted negligence and we agree; however, we disagree with plaintiff’s assertion that she was free of negligence.

Our Supreme Court has adopted a duty-risk approach to determine whether liability exists in a particular case. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). In determining the duty owed by the daughter to her mother, it is not necessary to classify plaintiff as an invitee or licensee, but rather it is appropriate to ascertain this duty by examining the particular facts before us. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976).

The daughter owed her mother a duty to discover any dangerous condition on the premises and to correct the condition or warn of its existence. Plaintiff testified she knew that her daughter used this barricade for at least five years. She candidly admitted seeing the barricade in place when she got up earlier that morning, but for some reason mistakenly assumed that the doorway had been cleared. Perhaps the jury felt that plaintiff’s previous fall over the same board was sufficient reason for a reasonably prudent person to not only be aware of the potential danger but to exercise even greater caution.

We have previously held that when a person looks but fails to see an open, apparent and observable object in their path, that person is in the same legal position as one who fails to look at it and is thus contributorily negligent. Magenta v. Firemens Fund Insurance Company, 284 So.2d 839 (La.App. 4th Cir. 1973). “The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner.” Shelton, supra, at p. 410.

We feel plaintiff did not exercise reasonable care in avoiding a danger which she knew existed; also, she failed to see what should have been seen under these unusual and particular circumstances and this constituted contributory negligence barring recovery.

We conclude that the jury’s determination was supported by the evidence and that its application of law was proper. Accordingly, the judgment of the District Court dismissing plaintiff’s lawsuit is affirmed with plaintiff to pay all costs of this appeal.

AFFIRMED.


author: SWIFT, Judge. DOMENGEAUX, Judge,

text:
    Leota Mae Davis PESCHIER, Plaintiff-Appellee, v. Marjorie Morris PESCHIER, as Testamentary Executrix of the Succession of Lionel Joseph Peschier, Defendant-Appellant.
    No. 8388.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Writ Granted Jan. 8, 1982.
    Thomas W. Sanders, Lake Charles, for defendant-appellant.
    Fruge & DeJean, Kenneth W. DeJean, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and YELVERTON , JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, participated as Judge ad hoc in this decision.

   SWIFT, Judge.

On November 28, 1960, the Thirteenth Judicial District Court for the Parish of Evangeline granted Lionel J. Peschier a judgment of divorce against his first wife, Leota Davis Peschier. Leota Peschier instituted this suit on May 17, 1977, against Marjorie Peschier, the deceased Mr. Peschier’s executrix, asking that court to declare the 1960 divorce judgment null and void. Judgment was rendered in favor of the plaintiff, decreeing the 1960 divorce proceeding null and void for lack of venue and jurisdiction and also because the divorce was obtained through fraud and ill practices on the part of Lionel Peschier.

On March 2, 1938, Lionel Peschier and Leota Davis were married and established their domicile in Lafayette Parish. Their first child, Louise Peschier Sims, was born on October 12, 1938. Around 1940 Lionel Peschier and his family moved to and became domiciled in Rapides Parish. On January 9,1952, a second child, Candace Maria Peschier, was born of the marriage.

Leota Peschier filed suit in the Ninth Judicial District Court, Rapides Parish, Louisiana, against Lionel Peschier for a separation from bed and board and obtained a judgment in her favor on October 14, 1955. On that same day the parties entered into an agreement partitioning the community of acquets and gains. On September 28, 1957, Leota Peschier signed a supplemental community property agreement which recited that the parties were still living separate and apart from each other.

Lionel Peschier filed the aforementioned divorce suit on October 5, 1960, on the ground that he and his wife had been living separate and apart for more than two years. The petition set forth that Mr. Pes-chier had been a resident of Evangeline Parish for two and a half years, that reconciliation had not taken place since the 1955 separation and that his wife was an absentee believed to be residing in Amarillo, Texas. This petition was verified by Mr. Pes-chier on September 30, 1960. Upon the allegation that his wife was an absentee, the court appointed a curator ad hoc to represent Leota Peschier. The curator sent her a certified letter to Amarillo, Texas, but it was returned unclaimed. On November 28, 1960, the trial court rendered judgment in favor of Lionel Peschier granting him a divorce.

On January 11, 1961, Lionel Peschier contracted a second marriage to Marjorie Ay-lene Null in Angelina County, Texas. They lived together thereafter at Peschier’s home in Lake Charles and the defendant, Marjorie Peschier, has continued to reside in that city. No children were born of this marriage.

Leota Peschier filed another suit against Mr. Peschier on October 15, 1976, for separation from bed and board in the Ninth Judicial District Court for Rapides Parish. On December 13, 1976, Mr. Peschier died in an automobile accident in Evangeline Parish and Marjorie Peschier was appointed testamentary executrix of his estate.

As mentioned, this suit for nullity of the 1960 divorce judgment was filed by Leota Peschier on May 17, 1977. The testimony of witnesses and the exhibits offered at the trial established that Mr. Peschier was engaged in the business of coin-operated machines, such as music boxes and so forth, and he owned interests in nightclubs and lounges. His business activities were conducted in several parishes, including Rap-ides, Evangeline and Calcasieu, requiring him to travel and spend various periods of time in each of these parishes.

Among others, the trial court made the following findings from the evidence adduced at trial: 1) Lionel Peschier was not a domiciliary of Evangeline Parish at either the time he verified or filed his divorce petition in that parish; 2) Leota Peschier was not an absentee from this state from September 1 to December 31, 1960, but instead was a resident of and domiciled in Rapides Parish during all of that time; 3) Evangeline Parish was not the parish of proper venue for the 1960 divorce suit and therefore the court lacked jurisdiction thereof; and 4) Lionel Peschier deliberately misled his counsel and deliberately practiced a fraud upon the court as he knew that his wife was residing in Rapides Parish and not Amarillo, Texas, when the suit was filed. Therefore, judgment was rendered in plaintiff’s favor declaring the 1960 divorce judgment a nullity.

The trial judge’s findings and conclusions, that the 1960 divorce judgment was a nullity because neither party was domiciled nor was their last matrimonial domicile in Evangeline Parish and also that the judgment was obtained through fraud or ill practices on the part of Lionel Peschier, are supported by the record. However, we prefer to rest our affirmation of the decision on the ground that the judgment was defective for a vice of form, the lack of a valid citation and service of process.

LSA-C.C.P. Article 2002. deals with annulment of judgments for vices of form and provides in part as follows:

“A final judgment shall be annulled if it is rendered:
$ ‡ ‡ * *
“(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;
* * * * * *
“Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

Article 2003 provides:

“A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.”

In Dickey v. Pollock, 183 So. 48 (La.App. 2 Cir. 1938), the court nullified a judgment on this ground, saying:

“It is the law of this state that a judgment based on a citation to a curator ad hoc appointed under allegations that the defendant is a non-resident must be annulled when in fact such defendant is a resident of Louisiana. Ventress v. Akin et al., La.App., 177 So. 117.”

The plaintiff, of course, bears the burden of proof and in a case such as this where the suit to annul was instituted after the death of the party obtaining the divorce and long after it was granted such proof must be “exceptionally strong and convincing.” Patton v. Patton, 229 La. 335, 86 So.2d 57 (La.1956). In that case the attack was denied for plaintiff’s failure to bear the burden of proof. However, our supreme court said:

“Citation is undoubtedly the essential ground of all civil actions, and proceedings had without it are absolutely null unless the defendant has voluntarily appeared and answered the demand. Arts. 206, 606(4), La.Code Practice; Wilson v. King, 227 La. 546, 79 So.2d 877. Thus, this court has held that a wife not an absentee cannot be cited in divorce proceedings through a curator ad hoc, and a judgment rendered contradictorily with a curator under such circumstances is void. Elmore v. Johnson, 121 La. 277, 46 So. 310; see Spence v. Spence, 158 La. 961, 105 So. 28.”

We are convinced from our review of the record that Leota Peschier established “by exceptionally strong and convincing proof” that she resided and was domiciled at No. 6 Baywood Drive in Pineville, Rapides Parish, Louisiana, and was not an absentee from this state during the time that the 1960 divorce suit was before the district court in Evangeline Parish. While she may have visited her sister in Pasadena, Texas, during the latter part of 1960, her whereabouts on such brief visit or visits were known or easily ascertainable by her husband.

It is clear that Leota Peschier resided at the No. 6 Baywood address with her children and grandson, Duke Clayton, before, during and after the period the divorce action was filed and pending. It is also clear that Lionel Peschier occupied the house with them on many occasions before and after the 1960 decree. Leota Peschier testified that she and her husband resided at the Pineville house from September to December, 1960, and that she did not live in Pasadena, Texas, during this time. Leota stated the only time that she lived in Texas was in the latter part of 1955 after she and Lionel separated, although she made many trips to Texas to visit her sister from 1955 to 1960. She had never been to Amarillo.

Candace Peschier testified that her mother and father resided at the No. 6 Baywood home in the years 1958 to 1960, and that Leota did not move to Texas during September to December, 1960. She did not recall her mother ever being absent from No. 6 Baywood for more than a week from October to December 1960. Candace’s school records show she was enrolled in Paradise School in Rapides Parish in the fall of 1960.

The other daughter, Louise Peschier, stated Leota and the family were living at No. 6 Baywood in Pineville during 1960 and the only time her mother lived in Pasadena, Texas, was for approximately one year after her separation in 1955.

Leota Peschier’s niece, Donna Delahous-saye, testified that she visited Leota during the summer months of 1959 and 1960 and also during the beginning of the 1960 school year. During this time Leota and Lionel as well were at the Pineville home. The school records of this witness establish she was enrolled at Tioga High School in Alexandria during September, 1960. Donna also stated that she visited the Peschiers at Christmas in 1960 and that both Leota and Lionel were there. The deposition of Donna’s father contradicts his daughter’s testimony as to her whereabouts during the summer of 1959 and 1960. However, it does not seem that the trial judge was impressed with his testimony, nor are we.

Donna Delahoussaye’s mother testified that they stayed with the Peschiers in September or October, 1960, due to a separation from her husband. She stated that Lionel was there at various times during this period. She also said that Leota never stayed over a week in Pasadena on any visit in the latter part of 1960.

In addition to the plaintiff, her children and relatives, several neighbors testified that Leota definitely resided at the Pine-ville address from 1958 to 1960 and that they also saw Lionel there occasionally. These neighbors had no knowledge of Leota leaving the Pineville home in 1960. Further, a good friend of Leota testified that she saw and spoke to the latter nearly every school day in 1959 and during September to December of 1960 while they waited to pick up their children at the Rapides Parish school which they were attending. She also stated that she visited Leota during this time at her No. 6 Baywood home at least once every week or two in 1960.

The testimony of the Peschiers’ garbage collector revealed that he collected the garbage at the No. 6 Baywood address during 1958 through 1960 and that the Peschiers did not vacate the house at any time for longer than a three week period. He was positive that he saw Leota and occasionally Lionel at that address in 1960.

An insurance agent testified that he sold insurance to the Peschiers in 1960. He stated that he saw Leota at that address in the years 1960 to 1962.

The proof that Leota Peschier was not an absentee at any time in 1960 is overwhelming. Thus, she was not served with process in the divorce suit as required by law. She made no general appearance and no judgment by default was taken therein. The record contains no indication that Leota Peschier voluntarily acquiesced in the judgment which was rendered or that she was present in the parish when any attempt was made to execute or enforce same. We therefore conclude that such judgment is absolutely null as having been rendered in violation of LSA-C.C.P. Article 2002.

For the foregoing reasons the judgment of the district court is affirmed at costs of defendant-appellant.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns reasons.

DOMENGEAUX, Judge,

dissenting.

Lionel Joseph Peschier’s first wife, Leota, filed this suit to annul her husband’s divorce judgment against her approximately I6V2 years after the rendition of that judgment, 16 years and 4 months after Lionel married his second wife, Marjorie, the defendant-executrix in this case, and approximately 5 months after Lionel died.

My review of the record reveals myriad incidences of contradictory testimony and evidences of strained feelings and enmities among blood and in-law relatives of the decedent, Lionel Peschier. The record further discloses testimony from seemingly disinterested witnesses suggesting to me that the able trial judge erred in some of his factual conclusions. It is difficult for me to conclude that Lionel Peschier could not have been a domiciliary of Evangeline Parish at the time he filed suit for divorce against his first wife, Leota. Although it may be reasonable to conclude that Leota was . a resident of Rapides Parish at the time of the suit, nevertheless there is substantial evidence that she could have been considered an absentee at that time. It is difficult for me to determine the basis upon which the trial judge concluded that Lionel Peschier deliberately misled his counsel and deliberately practiced a fraud upon the court in seeking a divorce in Evangeline Parish. I fail to see any motive which he may have had for so doing. There was no need for him to resort to fraud in order to seek a divorce in Evangeline Parish. He had previously been legally separated from Leota on October 14,1955, and immediately thereafter entered into a community property settlement with Leota. Approximately two years later Leota signed a supplemental community property agreement which recited that the parties were still living separate and apart from each other. The divorce, which Lionel received from Leota on November 28, 1960, was based on grounds that the spouses had been living separate and apart for more than two years.

Recognizing that the plaintiff in this nullity action should be required to establish her case by exceptionally strong and convincing proof (Patton v. Patton, 229 La. 335, 86 So.2d 57 (1956)), I feel that she has failed in that regard.

Courts should proceed with exceptional caution and deliberation when confronted with actions for annulment of judgments of long duration, especially, as here, where the status of another (second wife) would be seriously impaired if the judgment of divorce was to be set aside. For here, in dealing with the equities, we are bound to give consideration to the second marriage, which was contracted on the faith of the judgment under attack, and scrutinize the motives which prompted plaintiff (first wife) to seek the annulment of the judgment so many years later, and after the death of her former husband. Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (1949).

Notwithstanding the above observations, which surely indicate my feelings of disagreement with the judgment of the able district judge, I nevertheless would not find it necessary to vote for a reversal of the judgment on the grounds reached by the district judge. Instead, I would reverse the district court judgment for the following reasons.

Pure and simply, the record indicates to me that the plaintiff in this annulment suit is barred by prescription from bringing this nullity action.

La.C.C.P. Art. 2004 reads as follows:

“A final judgment obtained by fraud or ill practices^ may be annulled.
An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

A review of the testimony of Candy Pes-chier, daughter of Lionel and Leota Peschier and an obvious hostile witness who testified in favor of the plaintiff, Leota, leads to the conclusion that Candy knew of the divorce action in question in December of 1975 or January of 1976. Her unequivocal testimony was that she learned of the divorce from “the attorneys.” In naming the law firm she stated — “the lawyer told us. I mean, my mother’s lawyer. ” It is inconceivable, considering the closeness between Candy and her mother Leota in these proceedings, that her mother would not have known of the divorce action when the source of the information was Leota’s own lawyers.

There is also evidence leading to conclusions that Leota acquiesced in the divorce judgment under C.C.P. Art. 2003. There is testimony, some of which came from Leo-ta’s own witnesses, to the effect that Leota knew of Lionel and Marjorie’s marriage, and in fact visited with them on several occasions at their residence located at 718 Glover Street, Lake Charles, Louisiana.

Additionally, there is documentary evidence in the record which clearly establishes that Lionel and Marjorie were married, and it is evident that the plaintiff Leota knew of these documents inasmuch as many of them were discovered through the efforts of her daughter Candy around January, 1976. In fact, Candy began these discovery efforts on behalf of her mother, Leota.

I conclude that a preponderance of the evidence indicates that Leota Peschier knew for a number of years that Lionel Joseph Peschier was married to and living with Marjorie Morris Peschier in Lake Charles, Louisiana, and had knowledge of these facts at least more than a year prior to her suit for nullity.

Considering all aspects of this case, particularly the exceptionally strong and convincing proof that is required in these type cases, coupled with the aequiscence and knowledge which I think existed in the plaintiff Leota Peschier, I would reverse the judgment of the district court and dismiss plaintiff’s suit at her costs.

      . The trial court used the word “resident”, but he obviously meant “domiciliary” as the finding concerned the court’s lack of venue.

      . There are many similarities in the case at hand and the Walsh case. Of particular significance is the fact that in Walsh, the Louisiana Supreme Court reversed factual findings of the trial court in order to declare the divorce decree in that case legal and proper.

      . La.C.C.P. Art. 2003 reads as follows:
      “A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.”


author: GULOTTA, Judge.

text:
    Paul A. BOURGEOIS v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 12605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Rehearing Denied Jan. 21, 1982.

      Uhalt & Reck, Gothard J. Reck, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Steward E. Niles, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Defendant, appealing from a lump sum compensation and medical expense award, contends that plaintiff failed to prove his lower back disability resulted from a job-related injury or work activity, and that plaintiff’s claim for medical expenses has prescribed. Alternatively, South Central Bell claims that any award should be offset by social security benefits received by plaintiff under the provisions of LSA-R.S. 23:1225.

BACKGROUND

The fifty-seven year old plaintiff had worked as a commercial telephone installer for defendant for twenty-eight years. According to plaintiff, his job required pulling cable and moving heavy furniture. Paul Bourgeois testified that in the middle of February, 1979, while installing telephone service, he felt “something snap” in his back as he stood on a ladder and strenuously pulled cable through a ceiling. According to plaintiff, he told his supervisor and a co-worker on the same day that he had hurt his back. Bourgeois continued working until March 3, 1979.

Plaintiff then consulted an orthopedic surgeon and ultimately underwent two operations resulting in disc removal and a spinal fusion. According to plaintiff, other than the incident in mid-February, he had encountered no problem with his back during his twenty-eight years work for the telephone company except for a period of back strain in September, 1978, which had resulted from an episode of shoveling mud at his home. Plaintiff testified that he was still in pain at the time of trial and has not worked from March 3,1979 until the date of trial.

Plaintiff’s testimony regarding statements made by him to co-workers of the unwitnessed episode of pain on the job in February, 1979 was disputed by these workers. According to these witnesses, plaintiff did not relate to them that he had injured his back while pulling the cable in early 1979. They had observed plaintiff’s difficulty in arising from a seated position with complaints of leg pain repeatedly over a period of several years prior to 1979.

In addition to this conflicting lay testimony, the trial judge had the benefit of the expert testimony of three physicians who had treated plaintiff. Dr. Ralph Gessner, an orthopedic surgeon, first saw plaintiff on September 6, 1978, when he complained of low-back pain related to the shoveling incident in his back yard. At that time plaintiff had no previous history of back problems. An X-ray at that time revealed plaintiff had a moderate degree of degenerative osteoarthritis and Dr. Gessner was of the opinion that he had sustained a strain to the lumbar spine that had aggravated the pre-existing condition. This physician prescribed muscle relaxants, analgesics, and rest before allowing plaintiff to return to work on September 18, 1978.

Dr. Gessner saw plaintiff again on March 6, 1979 when he complained of severe back pain radiating to the left leg. This physician specifically asked plaintiff whether he had sustained an injury and plaintiff indicated he had not. Examination revealed moderate spasm in the low back with tenderness on the left side. X-rays again showed degenerative changes and Dr. Gess-ner prescribed relaxants and conservative treatment. On March 22, 1979, as plaintiff continued to exhibit marked discomfort, Gessner suggested hospitalization and pelvic traction, but plaintiff declined this treatment. Although Dr. Gessner was of the opinion that a work-related injury while pulling cable could have caused plaintiff’s problem, he had no information from plaintiff’s history to indicate any such traumatic occurrence or accident. In his opinion, plaintiff has exhibited “spontaneous” onset of symptoms. Dr. Gessner further testified that an individual engaged in labor has a more accelerated or aggressive course of osteoarthritis.

Dr. Robert Applebaum, a neuro-surgeon, first examined plaintiff on April 11,1979 on complaints of pain in the lower back and left leg. Plaintiff dated his problem to approximately one and one-half months previously when he had noticed a gradual onset of pain in his lower back. According to Dr. Applebaum, plaintiff denied any particular injury. A lumbo-myelogram performed on April 18, 1979 showed a predominant defect at the L4-5 interspace corroborating this physician’s diagnosis of a herniated disc on the left side. Dr. Applebaum performed a lumbar laminectomy on April 19, 1979 and removed a free disc fragment compressing on the nerve root. According to this physician, the “trigger mechanism” setting off this rupture would have occurred sometime very close to the onset of plaintiff’s discomfort and pain. Applebaum testified that daily activities divorced from any work could supply sufficient stress to herniate a disc, but he acknowledged that the act of a man with degenerative arthritis in his lower back engaging in manual labor and pulling cable overhead could cause a herniated disc. Based on the history he had received from plaintiff, however, Dr. Ap-plebaum was of the opinion that his herniated lumbar disc was not related to his employment.

Dr. Russell Grunsten, an orthopedic surgeon, saw plaintiff on August 21, 1979 on referral from Dr. Applebaum. Plaintiff related to this physician that pulling on cable in his work had seemed to aggravate pain in the left lower extremity and that an episode of pulling cable in January, 1979 had been the “precipitating episode.” Dr. Grunsten’s examination indicated nerve root damage at the L5 level and he subsequently performed a fusion operation after Dr. Applebaum removed a second disc fragment. Dr. Grunsten was of the opinion that a 57-year old person engaged in physical activities involving pulling cable at the limit of his strength and standing on a ladder would be prone to sustain a ruptured disc. Although Dr. Grunsten said it was possible that plaintiff could have had some disc damage from the shoveling incident in his yard in September, 1978, he was of the opinion that pulling on the cable, or “whatever occurred in January or February” was the more likely cause of the rupture.

JOB-RELATED INJURY

It is undisputed that plaintiff has suffered a herniated disc at the L4-5 level, which has resulted in two operations for removal of disc fragments and a spinal fusion. At issue, however, is whether plaintiff’s back problem was job-related.

Having considered the conflicting testimony, both lay and expert, in the record before us, we cannot say that the trial judge’s finding that plaintiff suffered a job-related accident resulting in impairment of his back is clearly wrong or manifestly erroneous. The trial judge simply chose to believe plaintiff’s version of the incident and the testimony of Dr. Grunsten, rather than the testimony of plaintiff’s co-workers and the opinions of the other physicians. As we noted in Gurry v. Allied Metals, Inc., 379 So.2d 871 (La.App. 4th Cir. 1980) and Newell v. New Orleans Public Service, Inc., 402 So.2d 246 (La.App. 4th Cir. 1981), the testimony of an employee may establish a work-related disabling accident where such testimony is corroborated by other credible evidence. Even though the reviewing court may be of the opinion that other evaluations and inferences are as reasonable, we cannot disturb the trial court’s reasonable evaluations of credibility and reasonable inferences of fact. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979). Under the circumstances, we conclude the record supports the trial judge’s conclusion that the event triggering the herniation of plaintiff’s lumbar disc was job-related.

SOCIAL SECURITY OFFSET

We reject defendant’s contention that plaintiff’s compensation award is subject to the Social Security “offset” provisions of LSA-R.S. 23:1225, which reads:

“§ 1225. Reductions when federal benefits payable
The benefits provided for in this Subpart B for injuries producing permanent total disability shall be reduced when anyone is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. Section 423; provided that this reduction shall be made only to the extent that the amount of the combined federal and workmen’s compensation benefits would otherwise cause or result in a reduction of the benefits payable under the federal old age, survivors, and disability insurance act pursuant to 42 U.S.C. Section 424a and in no event will the benefits provided in this Subpart together with those provided under the federal law exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. Section 424a.

Added by Acts 1978, No. 750, § 1.”

It is clear that the reduction provided for in this statute pertains only to “benefits provided for in this Subpart B for injuries producing permanent total disability. ...” (emphasis ours). The award in our case was not for permanent total disability. The trial court’s judgment provides, in pertinent part:

“3 — The Court finds as a conclusion of fact that the plaintiff was partially disabled for a period not to exceed one hundred (100) weeks;
4 — The Court finds as a conclusion of law that the plaintiff is entitled to benefits as provided for total/temporary disability for a period not to exceed one hundred (100) weeks.”

It is clear from the trial judge’s conclusions that plaintiff was not found to be permanently and totally disabled. The social security offset provisions of LSA-R.S. 23:1225, therefore, simply do not apply to our case.

NATURE OF AWARD

LSA-R.S. 23:1221 provides for a schedule of compensation benefits for various injuries including those producing “temporary total” disability [LSA-R.S. 23:1221(1)], “permanent total” disability [LSA-R.S. 23:1221(2)], “partial” disability [LSA-R.S. 23:1221(3)], and, the loss of various body members [LSA-R.S. 23:1221(4)]. LSA-R.S. 23:1221(4)(p) further provides:

“(p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per cen-tum of wages during one hundred weeks.”

Although he did not specifically articulate in his findings and decree or cite the statute by number, because an award was made for 100 weeks, we interpret the trial judge’s findings to mean that plaintiff was entitled to compensation under LSA-R.S. 23:1221(4)(p) for the serious and permanent impairment of his back. As noted in Fentress v. Danel-Ryder, Inc., 225 So.2d 765 (La.App. 3rd Cir. 1969), the basis of an award under this section is not disability; it is rather a limited award for a permanent residual of a work-injury that does not produce disability but will seriously hinder the employee for the rest of his life. In Fen-tress, an award under LSA-R.S. 23:1221(4)(p) was allowed a worker for a nondisabling residual back pain that resulted in a permanently weakened back. Similarly, in our case, plaintiff is entitled to benefits under this provision.

In making an award under LSA—R. S. 23:1221(4)(p), the trial court has much discretion in determining the weekly amount due for the 100 week period, subject to the statutory maximum of 66%% of wages during 100 weeks. Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2d Cir. 1980), writ denied, 385 So.2d 793 (La.1980). In fixing compensation for impairment of function, the award is not restricted to a medical percentage of disability. Ventress v. Danel-Ryder, Inc., supra.

In our case, the trial court’s judgment did not fix a percentage of plaintiff’s wages to be awarded, but merely rendered judgment “in an amount provided by the Louisiana Workmen’s Compensation Laws, for a period not to exceed one hundred (100) weeks”, which was to be paid in a lump sum. We sense the trial judge’s clear intention in the judgment, however, that plaintiff be awarded the statutory maximum of 66%% of his wages during the 100 week period. Moreover, the record supports such a conclusion. Although no medical expert quantified the percentage of plaintiff’s back disability, it is clear that he has suffered a serious impairment. Under the circumstances, we cannot say that an award of 66%% of his weekly wage for 100 weeks under LSA-R.S. 23:1221(4)(p) is unsupported by the record.

We find no statutory authority, however, for awarding plaintiff’s compensation in a lump sum. See Lott v. Brennan’s House of Printing, Inc., 359 So.2d 746 (La.App. 4th Cir. 1978); and, Sewell v. W. Horace Williams Co., 12 So.2d 33 (La.App. 1st Cir. 1943). Accordingly, we reverse and set aside the judgment insofar as it awards a lump sum plus interest and recast it to award plaintiff the sum of $230.00 per week, for 100 weeks, plus legal interest on each payment from the date due, until paid.

MEDICAL EXPENSES

We likewise reject defendant’s contention that plaintiff’s claim for medical expenses has prescribed under LSA-R.S. 23:1209. Defendant argues that plaintiff’s petition contains no claim for medical expenses, that plaintiff offered no evidence of medical expense at trial and that no medical payments have been made to interrupt prescription.

Paragraphs IV, V, and VI of plaintiff’s petition for compensation benefits specifically state the injury required extensive medical treatment and hospitalization expenses which defendant refused to pay. Moreover, the expert testimony clearly supports a conclusion that medical and hospital expenses were incurred. Under these circumstances, we cannot say plaintiff has failed to seek reimbursement for medical expenses. The claim was asserted in the timely filed petition. Plaintiff’s claim for medical expenses, therefore, has not prescribed.

The trial court's judgment provided for medical payments as follows:

“This Court finds that the plaintiff is entitled to be re-imbursed all medical expenses related to and growing out of this accident from February 13, 1979, thru January 15, 1981.”

In a “Motion to Amend Judgment as to Specific Amount of Medical Expenses Awarded Thereby”, plaintiff averred that counsel were unable to stipulate as to the total amount of medical expenses and sought to complete the record concerning the specific medical expenses due. The trial judge dismissed this motion for amendment, but provided that the motion was “subject to be reopened subsequent to review by the court of appeals, if appropriate”. Because we affirm the trial court’s finding of a job-related injury and hold that the claim for medical expenses has not prescribed, and because the record is silent on the amount of medical expenses incurred, we are compelled to remand the matter to the trial court solely for the determination of the specific amount of medical expenses incurred by plaintiff as result of his com-pensable injury.

DECREE

Accordingly, we affirm that part of the judgment decreeing entitlement to benefits for one hundred (100) weeks and for reimbursement for medical expenses, but recast the judgment more specifically as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, PAUL A. BOURGEOIS, and against the defendant, SOUTH CENTRAL BELL TELEPHONE COMPANY, ordering defendant to pay plaintiff the sum of $230.00 per week for a period of one hundred (100) weeks, with legal interest on each payment from the date due until paid.

The matter is now remanded solely for a determination of the specific amount of medical expenses incurred. In all other respects the judgment is affirmed.

AFFIRMED AND REMANDED.

      . These witnesses were Warren R. Punkey, Sr., James Hedrick, Michael D. Haggerts, an installation manager, and Steven R. Comiskey, plaintiffs supervisor.

      . Plaintiff experienced relief following his first operation in April, 1979, but began to experience pain again in July-August, 1979.

      . The second disc fragment was not a new rupture, but rather an outgrowth of the earlier herniation.

      . Plaintiff testified he was earning approximately $345.00 per week at the time of his injury. 66%% of $345.00 is $230.00.

      . A claimant is entitled to interest on past due compensation benefits. See Thomas v. Pepsi Cola Gen. Bottlers, Inc., 359 So.2d 283 (La.App. 4th Cir. 1978); Ray v. Superior Iron Works and Supply Co., Inc., 284 So.2d 140 (La.App. 3rd Cir. 1973); Straughter v. Cesco, Inc., 262 So.2d 126 (La.App. 1st Cir. 1972).

      . LSA-R.S. 23:1209 reads as follows:
      “§ 1209. Prescription
      In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”


author: DOMENGEAUX, Judge. SWIFT, Judge, STOKER, Judge, CUTRER, Judge,

text:
    William D. BROWN, Plaintiff-Appellee, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellant.
    No. 8445.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 16, 1981.
    Stockwell & Associates, John S. Bradford, Lake Charles, for defendant-appellant.
    Baggett, McCall, Singleton & Ranier, Ho-, mer C. Singleton, Lake Charles, for plaintiff-appellee.
    Raggio, Cappel, Chozen & Berniard, Christopher M. Trahan and G. Michael Bourgeois, Lake Charles, for defendant-ap-pellee.
    Before DOMENGEAUX, CUTRER, SWIFT, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit. There is no dispute as to the amount of compensation and medical expenses awarded to the plaintiff.

William David Brown (Brown) is self-employed. He had been engaged in the business of repairing homes and other structures in the Lake Charles area for about two years. His work consists principally of general carpentry, roofing and painting. Brown usually performs the work himself but, at times, he hires other workers to assist him. At the time of the accident referred to hereinafter there were approximately six men on his payroll as helpers or journeymen. Since his advent in the repairing business he had been performing intermittent work for Mr. Peyton Coving-ton, an attorney, who owned rental property. When a problem developed with any of Mr. Covington’s rental property, he would usually call Brown who would perform the work needed to repair or maintain it. Mr. Covington would pay Brown as per the invoice prepared by Brown upon completion of each job.

Approximately six months prior to April 25, 1979, Mr. Covington had noticed that the roof of his building which he used as a law office was leaking in areas around two bathrooms and the chimney. He called Brown to repair the roof. Brown recommended that a type of roofing cement be applied to the areas and on April 25, 1979, he began applying the roofing material which was also furnished by him. In the process of performing this work he fell from the edge of the roof to the ground breaking his leg. This injury resulted in eight weeks of disability and $6,897.55 in medical expenses.

Brown brought suit against Covington’s insurer, State Farm Fire & Casualty Company (State Farm), to recover workmen’s compensation benefits. State Farm denied liability on the ground that the work being performed by Brown was not a part of the trade, business or occupation of Mr. Coving-ton. State Farm also filed a third party demand against St. Paul Fire & Marine Insurance Company (St. Paul), the insurer of United Craftsmen, Inc. United Craftsmen, Inc. was a corporation owned by Brown of which he was a sole shareholder. The basis for the third party action by State Farm is that Brown was an employee of the corporation at the time of the accident.

The trial court rendered judgment in favor of the plaintiff, Brown, and against State Farm. The third party demand against St. Paul was dismissed. Brown was awarded $141.00 per week for the eight weeks he was temporarily and partially disabled, and $6,897.55 for medical expenses. Brown’s claim for attorney’s fees and penalties was denied.

From this judgment State Farm appeals seeking reversal of the judgment or, alternatively, a right of indemnification against St. Paul. St. Paul answers denying responsibility. Brown answered seeking affirmance and also recognition of a claim for attorney’s fees and penalties.

The principal issues involved in this appeal are whether Brown’s services to attorney Covington in repairing the roof to the latter’s office building was a part of Cov-ington’s trade, business, or occupation, and whether or not plaintiff Brown is entitled to compensation notwithstanding pronouncements of the Supreme Court in the case of Lushute v. Diesi, 354 So.2d 179 (La.1977).

State Farm contends that plaintiff Brown did not perform services arising out of and incidental to Covington’s trade, business, or occupation as an attorney. The facts show that the workmen’s compensation policy issued by State Farm was to the law partnership of Covington and Babin and covered the office personnel of those attorneys.

State Farm contends that it is the “office personnel” who are the employees that are part of Mr. Covington’s trade, business, or occupation.

The trial court noted that plaintiff was in fact an independent contractor but further determined that he was covered under the workmen’s compensation act because the work performed by him was part of Mr. Covington’s trade, business, or occupation. The trial court’s finding makes Mr. Coving-ton the principal of plaintiff in accordance with La.R.S. 23:1061. We feel that in so holding, the able trial judge evaded the rationale of Lushute v. Diesi, supra, and thereby erred.

In order to find plaintiff entitled to compensation benefits under the facts of this case, we would have to ignore and disregard the reasoning of the Supreme Court in the Lushute v. Diesi case, supra. In that case, Lushute’s widow sued Diesi for workmen’s compensation benefits resulting from the death of her husband who was killed while repairing an air conditioning system at Diesi’s restaurant. The Supreme Court dismissed plaintiff’s suit on the ground that the decedent was not performing work which was a part of the trade, business, or occupation of Diesi.

The Supreme Court in referring to La. R.S. 23:1021(6) stated:

“We therefore conclude that an independent contractor is covered under the workmen’s compensation law only when a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is a part of the principal’s trade, business or occupation.” (Emphasis added).

In connection with the above principal, the Supreme Court found that Lushute was an independent contractor, and that just prior to the accident therein he was performing a substantial part of his work time in manual labor carrying out the repairs of the air conditioning system at the restaurant.

The high court then felt, however, that Lushute’s repairing of the air conditioning system at the restaurant was not part of the trade, business, or occupation of the restaurant owner. The court concluded that Lushute was not an independent contractor entitled to coverage under the workmen’s compensation act, and therefore his widow was not entitled to compensation benefits.

In the case before us for consideration, the leaks in Mr. Covington’s office building had been in existence for some six months and were in the vicinity of or over the two bathrooms and the chimney. Plaintiff was under a contract to repair that roof. Mr. Covington is an attorney and the building in question served as an office for his law practice.

Following Lushute we would agree with the trial judge that the plaintiff here was an independent contractor and that just prior to the accident of April 25, 1979, he was performing a substantial part of his work time in manual labor carrying out the repairs of Mr. Covington’s roof. But unlike the opinion of the trial judge, we feel that we cannot escape the consequences of Lu-shute. Lushute dictates to us that if an air conditioning system in this day and age is not a necessary part of a restaurant owner’s trade, business, or occupation, then certainly a leaky roof near the bathrooms and chimney of an attorney’s law office and the repair thereof, likewise, cannot be considered as a part of the attorney’s trade, business, or occupation. To hold otherwise would be to find a distinction without a difference between the facts in Lushute and those here.

Accordingly, following our high court’s rationale in Lushute, we find it necessary to reverse the judgment of the trial court which awarded compensation benefits to plaintiff against Mr. Covington’s insurer, State Farm.

An issue which is no longer viable in view of the conclusion reached hereinabove is whether defendant — plaintiff in reconvention — State Farm would be entitled to indemnification from third party defendant, St. Paul Fire & Marine Insurance Company. Inasmuch as State Farm is relieved of liability herein, its third party action against St. Paul becomes moot. Although the trial court dismissed State Farm’s third party action against St. Paul for other reasons, our conclusion herein mandates an affirmation of that action.

It follows, from all of the above, that plaintiff’s answer to the appeal seeking attorney fees and penalties should be and is hereby rejected.

For the above and foregoing reasons the judgment of the district court which awarded compensation benefits to plaintiff and taxed trial court costs against defendant State Farm Fire & Casualty Company, is hereby reversed and plaintiff’s suit is ordered dismissed.

In all other respects the judgment of the trial court is affirmed.

All costs, at trial and on appeal, are assessed against plaintiff-appellant, William D. Brown.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

SWIFT, J., concurs and assigns written reasons.

STOKER, J., concurs and assigns written reasons.

CUTRER, J., dissents with written reasons.

SWIFT, Judge,

concurring.

I agree with the majority decision and believe there is an additional reason why the work performed by the plaintiff was not a part of attorney Covington’s business. The plaintiff’s services were neither essential to his occupation nor were they substantial and recurring. See 13 La. Civil Law Treatise, Workers’ Compensation Law and Practice, Second Edition, Malone and Johnson, § 94, page 207. I am convinced the legislature never intended that an occasional repair by a carpenter, painter, plumber, electrician or appliance repairman to a building owned and used by one in a business no way related to such repair work should give rise to liability of the owner under our workmen’s compensation law.

STOKER, Judge,

concurring.

I concur in the result reached by the majority in the case.

Section 1021 of the Louisiana Workmen’s Compensation Law (in its definition of independent contractor) grants a contractor an employee’s benefits under the workmen’s compensation law but without creating an employment relationship. LSA — R.S. 23:1021(5). The independent contractor is entitled to benefits under the same conditions as an employee. These conditions are provided in Section 1035 of the compensation law. The conditions are that the individual be injured while performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation. There is no statutory requirement that those services be “a part” of the employer’s business. However, in Lushute v. Diesi, 354 So.2d 179 (La.1977), the Louisiana Supreme Court merged Section 1021(6), now Subsection 5, with Section 1061 relative to statutory employers and employees. The latter requires that the work being done be “a part” of the statutory employer’s trade, business or occupation. Under Lushute an independent contractor claiming worker’s compensation from his principal must satisfy Section 1061 and establish that the work being performed is “a part” of the trade, business or occupation of the principal in like manner as if he were an employee of the principal.

In Lushute the Supreme Court tested whether Lushute’s work in servicing the air condition system in Diesi’s restaurant was a part of Diesi’s trade, business or occupation on the basis of whether the work being done was necessary or not. In this case both the majority and dissenting opinions are quite persuasive in approaching the rights of plaintiff, William D. Brown, on this basis. I do not feel the Lushute case laid down an exclusive approach. It is possible to determine the issue by answering the question of whether the independent contractor was injured while performing services which the principal customarily performed. In this case plaintiff was not performing legal services which is the occupation of defendant’s insured, attorney Covington. Moreover, roof repair is not customarily performed as a part of a law practice and certainly is not performed on a continuing basis. Reeves v. Louisiana and Ark. Ry. Co., 282 So.2d 503 (La.1973); Duplechin v. Pittsburg Plate Glass Co., 265 So.2d 787 (La.App. 3rd Cir. 1972); Moak v. Link-Belt Co., 229 So.2d 395 (La.App. 4th Cir. 1969), modified on other grounds, 257 La. 281, 242 So.2d 515 (1970); Hudson v. Aetna Cas. Ins. Co., 299 So.2d 499 (La.App. 4th Cir. 1974), cert. denied, 302 So.2d 20 (La.1974); and Rapattoni v. Commercial Union Assurance Co., et al., 378 So.2d 953 (La.App. 3rd Cir. 1979). Therefore, plaintiff is not covered under the worker’s compensation law.

Any other construction of the words “a part of” as relates to a trade, business or occupation would result in any business of any nature, however small, being liable for compensation to either statutory employees of independent contractors who perform manual labor no matter what relationship the work engaged in may have to the nature of the principal’s business, trade, or occupation.

CUTRER, Judge,

dissenting.

I respectfully dissent. The majority opinion holds that the principles enunciated in Lushute v. Diesi, 354 So.2d 179 (La.1978) applies to this case. The majority opinion holds that:

“... Lushute dictates to us that if an air conditioning system in this day and age is not a necessary part of a restaurant owner’s trade, business, or occupation, then certainly a leaky roof near the bathrooms and chimney of an attorney’s law office and the repair thereof, likewise, cannot be considered as a part of the attorney’s trade, business, or occupation. To hold otherwise would be to find a distinction without a difference between the facts in Lushute and those here. ...”

With this interpretation of Lushute I urgently disagree. Lushute holds as follows:

“.. . A properly functioning air-conditioning system, although desirable from the viewpoint of customer comfort and satisfaction, is not necessary for the operation of a restaurant. The service rendered by decedent at the time of the accident was not a part of the restaurant business but was merely incidental thereto.”

The Supreme Court is explicitly ruling that since the air conditioning system is not necessary to the restaurant business any repair of such system by Lushute would not be a part of the restaurant business. This rule leads us to the further logical conclusion that if the air conditioning system had been necessary to the restaurant business, then Lushute would have been performing work that was part of the restaurant business. In summary, the Supreme Court is simply holding that if a necessary component part of a business building is being repaired, the repairman would be performing a part of the business and would be entitled to workmen’s compensation. If such component (or system) is not necessary to the business, such repair work would not be a part of the business.

As we apply Lushute to the facts at hand, we must conclude that Brown was performing work that was a part of the trade business or occupation of Covington. The repair work by Brown was being performed on the roof of the office building. The roof of this office building is not only a desirable component part of, but is an absolute indispensable necessity to, the operation of the business office. Therefore, the service rendered by Brown at the time of the accident (repair of the roof) was a part of the office business of Covington. Lushute, supra. As such, Brown would be entitled to workmen’s compensation benefits. I come to this conclusion not by distinguishing this case from Lushute, but by following the clear ruling of the Supreme Court in that case.

Having come to the conclusion that Brown was performing work as part of the trade, business or occupation of Covington, the remaining issues arising out of State Farm’s third party demand against St. Paul would have to be decided. Also, we would have to decide the issue of whether penalties and attorney’s fees should be awarded.

WHETHER LIABILITY RESTS WITH STATE FARM OR ST. PAUL

State Farm contends that (1) Brown was an employee of United Craftsmen, Inc. at the time of the accident; thus, St. Paul, as the corporate insurer, is liable for compensation payments; or (2) St. Paul, having issued a policy before the accident to United Craftsmen, Inc., is estopped from denying liability to Brown.

The contention that Brown as an employee of United Craftsmen, Inc. at the time of the accident is without merit. Brown had been doing maintenance work for Mr. Cov-ington for approximately three years before the accident on April 25,1979. For approximately one and one-half years before the accident, Brown had been operating under the unincorporated name of United Craftsmen. In the Spring of 1979, Brown decided that he would incorporate his business. Mr. Covington and Mr. Babin were performing the legal work for such incorporation. As had been customary over the past three years, Mr. Covington called Brown to repair the roof of his office. At the time the contract of employment was entered into, both Mr. Covington and Brown were fully aware that the process of the incorporation had not been completed and such corporation was not in existence. Brown also stated that he knew he was not incorporated when the accident occurred. The record simply does not support the contention that either party had any intention of contracting with or for a corporations

The articles of incorporation were filed with the Secretary of State on May 21, 1979, approximately one month after the accident. Under the provisions of LSA— R.S. 12:25 a corporation comes into existence as of the time the articles are filed with the Secretary of State of Louisiana. The corporate entity came into being May 21, 1979. Thus, we conclude that the employment contract was between Mr. Coving-ton and Brown, individually. United Craftsmen, Inc. was not a party to same.

State Farm’s contention that St. Paul is estopped from denying liability is also without merit.

The cases cited by State Farm in this regard are not applicable to the facts at hand. The cases cited deal generally with situations where a person contracts with an entity which he acknowledges to be a corporation, incurs obligations in favor of a corporation and later tries to deny corporate existence to escape liability. In those cases the courts have held that such person is estopped from denying the corporate existence to escape liability.

In the case at hand, United Craftsmen, Inc., was never a party to the employment contract. St. Paul is not estopped from denying liability for compensation payments which obligations were never incurred by its insured, United Craftsmen, Inc.

State Farm further contends that United Craftsmen, Inc., ratified the contract of employment after it came into existence. The record does not reflect any facts that would show any such ratification. This argument lacks merit. I would affirm the trial court’s judgment dismissing State Farm’s third party demand against St. Paul.

PENALTIES AND ATTORNEY’S FEES

I would also award penalties and attorney’s fees for the following reasons.

The substantial issues in this case emanate from the fact that two insurers were in a dispute as to which would be liable for compensation payments. We have consistently held that:

“A dispute between two insurers as to which one owes compensation benefits is not justifiable grounds for withholding these benefits. The battle is between the two insurers and should not be waged at the expense of the injured workmen."

Joyner v. Houston Gen. Ins. Co., 368 So.2d 1149, 1153 (La.App. 3rd Cir. 1979). See also: Jones v. Liberty Mutual Ins. Co., 402 So.2d 287 (La.App. 3rd Cir. 1981); Carney v. Liberty Mutual Ins. Co., 277 So.2d 175 (La. App. 3rd Cir. 1973).

For these reasons, I would amend the trial court judgment by allowing penalties and attorney’s fees and, as amended, I would affirm.

      . The named Covington in the law firm is the same person who owns the office building from which plaintiff fell and injured himself.

      . The actual owner of the restaurant was a corporation known as Little Capitol of Louisiana, Inc.

      . It has been suggested that Slocum v. Lamartiniere, 369 So.2d 201 (La.App. 3rd Cir. 1979) should apply here so as to allow benefits to plaintiff Brown. Slocum is distinguished. There it was determined that the defendant grocer Lamartiniere in effect was engaging in a second trade, as a contractor, in building a new grocery store, and for the reasons stated therein found that Slocum, the carpenter, was covered in workmen’s compensation.

      . Despite critical reviews, this holding of Lushute v. Diesi, supra, has not been reconsidered by the Louisiana Supreme Court. For critical analyses of the fusion of R.S. 23:1021(5) (formerly Subsection Six) and R.S. 23:1061 see the dissenting opinion of Justice Calogero in Lushute v. Diesi, supra, at page 183; 39 La. Law Review 893 (1979); 40 La. Law Review 742 (1980); and Malone and Johnson, 13 Louisiana Civil Law Treatise (Worker’s Compensation), Section 78, particularly at page 145.

      . This is apparently the position of Justice Ca-logero and Professors Malone and Johnson. They take the position that the Sections 1021 and 1061 of the compensation law are not relevant to the inquiry presented in this case and the only section relevant is Section 1035 which provides in pertinent part: “The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer’s trade, business, or occupation, * * * ”, Even under such a test plaintiff in this case would not be entitled to recover. Realistically, it cannot be said that the leaks in the roof of attorney Covington’s building and the repair work performed to correct them arose out of or were incidental to Covington’s law practice.

      . Latiolais, Administratrix v. The City Bank of Louisiana, 33 La.Ann. 1444 (La.1881); New Prytania Market Association v. Beoubay, 185 So.2d 531 (Orl.La.App. 1939); Universal C.I.T. Corporation v. J. W. Love, 264 So.2d 281 (La. App. 1st Cir. 1972); Painting Systems, Inc. v. Mildred Popkins, 376 So.2d 584 (La.App. 4th Cir. 1979); Tulane Improvement Company v. S. A. Chapman & Company, 129 La. 562, 56 So. 509 (1911); North American Contracting Corporation v. Gibson, 327 So.2d 444 (La.App. 3rd Cir. 1975).


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Larence J. ELLIS v. FLUOR CONSTRUCTORS, INC., et al.
    No. 12767.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 1981.
    Rehearing Denied Jan. 21, 1982.
    Esmond Phelps, II and Dodge Hobson, New Orleans, for relator.
    David Morgan, New Orleans, for respondent.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

In this worker’s compensation case we granted a writ of certiorari in order to consider a judgment of the trial court overruling an exception of prematurity filed by plaintiff’s employer and its insurer. The issue is whether the plaintiff, who has been paid full compensation benefits since the date of his accident on June 13, 1979, and for whom defendants have paid in excess of $30,000 in medical expenses, has not been furnished the proper medical attention because of defendants’ refusal to pay a bill for $65 to a urologist in connection with plaintiff’s alleged sexual dysfunction, and bills totaling $402 to an internist for treatment for diabetes, so that defendants’ exception of prematurity brought under LSA — R.S. 23:1314 was properly overruled by the trial court.

Following his injury on June 13, 1979, plaintiff had symptoms of disc disease which prompted his orthopedic surgeon to hospitalize him and conduct myelographic studies. When these studies proved negative plaintiff was treated conservatively for his back problems. In August plaintiff became gravely ill and upon being hospitalized was found to have necrosis of the bowel, which necessitated a resection consisting of the removal of part of his intestines. At the end of 1979 he continued to have difficulty with his back, and although additional studies did not indicate disc disease the orthopedic surgeon was convinced that plaintiff had a herniated disc.

At the time plaintiff was hospitalized for the bowel resection, he was found to be suffering with diabetes mellitus and was treated for this condition by Dr. Persand, an internist. Plaintiff incurred bills of $402 for treatment of his diabetes by Dr. Per-sand.

Over the period of time while plaintiff was being treated by Dr. Garoutte, the orthopedist, and Dr. Leonard, the urologist, he complained about a gradual inability to have sexual intercourse. In May, 1980, Dr. Leonard referred plaintiff to another urologist, Dr. Merlin, who specialized in sexual dysfunction problems and who described the tests he wanted to perform on plaintiff to determine if he was sexually impotent or not. Although Dr. Merlin charged only $65 for his initial interview of plaintiff he explained that his diagnostic studies would come to approximately $2,340, including his own and the hospital bill. He explained that such studies would reveal if plaintiff was physically capable of intercourse or not but even if he were shown to be physically capable the question of psychological impotency would still have to be considered.

The trial judge initially overruled defendants’ exception of prematurity based upon the pleadings and the medical reports and correspondence with the physicians. On the application of defendants for supervisory writs we previously set aside this judgment with the following statement:

“We conclude that the plain language of this statute requires that the judge have a separate hearing of the facts of failure to render medical attention for sexual dysfunction and diabetes before proceeding with the merits of the case. Only then may the exception of prematurity be dismissed, if the facts so justify.”

Thereupon depositions of all of the doctors were taken as was the testimony of plaintiff. The trial court then overruled defendants’ exception of prematurity a second time and stated in his opinion that the sexual dysfunction and diabetes had been proved by a preponderance of the evidence to be caused by the accident. It is from this second judgment overruling defendants’ exception that we have exercised our supervisory jurisdiction, granted a writ of certiorari and reviewed the entire record in order to determine the validity of the judgment of the trial court.

With respect to the diabetes, we are satisfied that there is no evidence in the record to relate this problem to the plaintiff’s accident. The medical testimony is directly to the contrary, that diabetes melli-tus is not caused by trauma, so that the defendants properly refused to pay Dr. Per-sand’s bills for treatment of plaintiff’s diabetes. However, the sexual dysfunction problem is more complicated and not so easily disposed of.

Defendants rely almost exclusively on the fact that plaintiff complained about problems with sexual intercourse to his physician a month before the accident sued on occurred. However, plaintiff testified that his problem was minor at that time but gradually following his accident worsened and reached a point after the operation in December, 1980, when the discs were removed that he was totally impotent. Dr. Merlin, the expert on this problem, did not gainsay a definite opinion as to causation because he never reached the point where he was able to perform his tests in the first place and would not assume that plaintiff was sexually impotent without performing such tests. However, he left open the distinct possibility that whatever impotence plaintiff had before the accident could have been aggravated by his disc problems. Dr. Leonard, the urologist, who first treated plaintiff, testified that he could not find any organic cause for plaintiff’s complaints about sexual dysfunction but that such a condition could result from the anxiety experienced by plaintiff as a result of the multiple surgical procedures to which he had been subjected. Asked by defendants’ attorney if his opinion would be different if he were told that plaintiff had complained about sexual dysfunction one month prior to the accident, he answered that it could still have caused his impotence as a “psychogenic problem.”

Finally, Dr. Merlin, the acknowledged expert on the problem of sexual dysfunction, was asked how the condition could be related to the accident if plaintiff complained of sexual impotency before the accident. He answered that if he complained of the same identical problems before he would have to say that the problem existed prior to the accident. However, the trial judge had the benefit of plaintiff’s own testimony, which he apparently accepted as true, that his problem before the accident was relatively minor but became progressively worse until he became totally impotent after the last operation for removal of the discs. This disposes of Dr. Merlin’s comment that only if the problem was the same before and after the accident would he not relate the problem to the accident.

We are not unmindful of the testimony by Dr. Merlin as well as other physicians that diabetes causes impotency in fifty percent of the male patients and that diabetes causes a gradual onset of sexual impotency. However, the trial judge was charged with the primary duty of weighing this evidence in the light of all the other evidence elicited from the doctors, and we cannot say that he is clearly wrong in concluding that plaintiff’s condition was caused by the accident, or at least was aggravated by the accident and the medical procedures which resulted therefrom.

We are not unsympathetic with defendants because there is the possibility that plaintiff’s problem is not related to the accident and this may not be known until a great deal of money is spent on tests and treatment. The initial determination as to whether plaintiff is organically impotent or not is not easily made. In fact, this is all Dr. Merlin will know for $2,340. If organic impotency is established further testing will determine, hopefully, whether the condition is related to the accident or not. On the other hand, if Merlin’s tests rule out organic impotency, plaintiff may still be psychologically impotent and only further testing would determine relationship to the accident.

We are confronted with a plaintiff who admittedly had some problem of sexual dysfunction before the accident and who now says he is impotent. Since the accident he has undergone drastic surgery for the removal of over two feet of his intestines, several hospitalizations in which myelo-grams were performed, surgical removal of two discs, and catherization of the urethal canal to eliminate blockage caused by strictures following his bowel surgery. He has undergone intense suffering and a conglomeration of medical procedures involving the lower part of his body in general and the genito urinary organs in particular.

Once the court believes that he now has this problem which he did not have before the accident and Dr. Merlin says he can’t venture any opinion without testing the conclusion follows that plaintiff is entitled to such medical treatment as Merlin can provide, albeit that it may later be revealed that plaintiff’s impotency is entirely unrelated to the accident. This same problem often occurs. A plaintiff says his back hurts but medical tests are negative. He continues to complain and convinces a judge that he is hurt. He continues to receive treatment which his employer thinks is unnecessary. No one can say for certain that he is malingering and yet he may be. Nonetheless, under our imperfect system of justice the employer pays. The same problem often occurs where causation is at issue.

Unfortunately for defendants, their employee has convinced the trial court that he suffers with a condition which is commonly known to be a mixture of physical, psychological and emotional components and which is extremely difficult to diagnose and treat. Because we cannot say the trial judge was clearly wrong, we recall our writ and decline to exercise our jurisdiction any further at this time.

REDMANN, Judge,

dissenting.

R.S. 23:1314 provides that

the question of whether or not such allegations ... of failure to render [the proper] medical attention ... is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.

The statute thus provides against the patent unfairness of obliging an employer, already paying all due benefits and medical attention, to pay the legal fees and other expenses of trial of the basic disability claim that is already being paid. The statute tells this court that they must “determine” whether the required allegation “that the employee has not been furnished the proper medical attention” is “justified.”

This employer has already furnished over $30,000 of medical attention. It is unreasonable to conclude that plaintiff’s allegation of failure to provide medical attention is justified under our circumstances.

Unless plaintiff’s impotence was caused by the accident, the employer is not obliged to pay for its medical treatment. The record establishes that plaintiff sought medical help for less-than-total impotence a month before the accident; that plaintiff is a male diabetic; that his diabetes mellitus is not related to the accident; and that one of every two male diabetics is rendered totally impotent by his diabetes. Of the 50%-plus of male diabetics who do have impotence, it is far more probable than 50% as to any one of them that diabetes caused his impotence. That establishes, as more probable than not, that plaintiff’s impotence is caused by his diabetes because diabetes explains both the prior, less-than-total impotence and its normal progress into total impotence, as occurs in half of. all male diabetics. No doctor ventures an opinion that it is more probable, or even equally probable, that the accident caused plaintiff’s total impotence. Thus plaintiff has not proved his allegation of failure to provide proper medical attention. Indeed, plaintiff concedes as much because his request is for $2,340 of tests that may (or may not!) help determine whether the cause of his impotence is this accident instead of the diabetes.

Proper appellate review obliges us to reverse the trial judge’s inference on causation that is not a permissible inference from the undisputed evidence in the record, Carter v. Avondale Shipyards, Inc., (La.1981):

Sufficiency of evidence is a question of law, not of fact. In civil eases the essential elements of the claim, including causation, must be proved by a preponderance of the evidence. The evidence is sufficient to constitute a preponderance when the proof, taken as a whole, establishes that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Ins. Co., [262 La. 721,] 264 So.2d 621 (1972).
When, as here, there is no dispute in the evidence, the trial court does not truly perform a credibility function, and without resolving conflicts in proof the trial court simply determines as a matter of law whether the fact or causation at issue was shown to be more probable than not. On appellate review in such cases the manifest error rule is not applicable, since there was no determination of credibility or weighing of conflicting evidence by the trial court.3 The reviewing court simply applies the same “more probable than not” standard to the undisputed record evidence and determines as a matter of law whether the evidence is sufficient to constitute a preponderance.
3 [Footnote the supreme court’s] When there is conflicting evidence, great weight must be accorded to the trier of fact in the proper performance of factfinder’s function of weighing evidence and resolving conflicts. In such a case a reviewing court determines sufficiency by viewing the evidence in the light most favorable to the prevailing party and then determining whether the evidence, thus viewed, constitutes a preponderance.

The trial court should be reversed and suit for workers’ compensation benefits already being paid should be dismissed.

      . Presumably a large portion of male diabetics are not impotent so that among those who are impotent (like plaintiff) the percentage whose impotence is caused by diabetes must be much greater, and probably on the order of 85%. To illustrate, the 50% testimony tells us that diabetes causes 50 of 100 male diabetics to become impotent. Presumably, among the other 50 of that 100, there may be a few who are impotent from other causes, but probably 40 or 45 are not impotent. Thus we would have a total of say 55 to 60 impotent, and diabetes caused 50 out of those 55 or 60. Thus the probability of any impotent male diabetic’s impotence’s being the result of his diabetes is 50 out of 55 or 60 or 83% to 91% (rather than 50 out of 100 or 50%).
      The fact that our plaintiff suffered from partial impotence before his accident makes it even more probable that he is among those 83 to 91%, rather than among the small percentage who are impotent from such other causes as an accident.