text:
    STATE of Louisiana v. Louis WICKER.
    No. 80-K-1480.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Julie LeBlanc, Asst. Dist. Atty., for plaintiff-relator.
    Brian Begue, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   LEMMON, Justice.

The issue in this case is the applicability of the two-year prescriptive period provided in C.Cr.P. art. 578.

On April 16, 1973 defendant, while serving a five-year sentence for burglary, escaped from the custody of the Louisiana Department of Corrections.

Shortly thereafter, on April 25, 1973, the district attorney filed a bill of information charging defendant with the offense of simple escape. In 1974 Ohio police arrested defendant in that state and notified law enforcement officials in Louisiana. However, Ohio authorities released defendant after thirty days elapsed without receipt of extradition papers from Louisiana. The proper documents arrived two days after defendant’s release. Given this opportunity, defendant kept his whereabouts unknown until he was again arrested in Ohio in June, 1979.

Defendant thereafter moved to quash the 1973 bill of information on the basis that the two-year period of prescription established in C.Cr.P. art. 578 had elapsed. The trial court quashed the bill, and this court granted the prosecution’s application for certiorari. 389 So.2d 393.

C.Cr.P. art. 579 provides:

“The period of limitation established by Article 578 shall be interrupted if:
“(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or “(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
“The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.”

The record clearly established that defendant, for the purpose of avoiding apprehension and/or prosecution for the escape, not only fled from the state, but also was outside the state and was absent from his usual place of abode within the state. See State v. Montgomery, 257 La. 461, 242 So.2d 818 (1970). Accordingly, the prosecution met its burden of proving interruption of the period of prescription that had begun to accrue when the bill of information was filed in 1973.

Defendant contends, however, that since under Article 579(2) his presence for trial could have been obtained by legal process (extradition) during his thirty-day detention in Ohio, prescription began to run anew in 1974 and accrued in 1976.

Even if we accept defendant’s contention that his detention in Ohio subjected him to extradition and terminated the existence of the cause of interruption of prescription, the interruption began anew when the detention ended and defendant again became a fugitive, thereafter remaining either outside the state or absent from his usual place of abode in this state for the obvious purpose of avoiding apprehension and prosecution.

Accordingly, the judgment of the trial court is set aside, the motion to quash the bill of information is overruled, and the matter is remanded for further proceedings.

Judgment Granting Motion to Quash Set Aside, Motion Overruled, and Case Remanded.

      . C.Cr.P. art. 578 provides for a prescriptive period of two years between the commencement of prosecution (here, the filing of the bill) and the commencement of trial in cases of non-capital felonies, such as simple escape from confinement in the custody of the Department of Corrections. R.S. 14:110.

      . Indeed, it is questionable that prescription ever runs on an escape charge until the escapee is apprehended or surrenders himself. That question, however, need not be answered in this case.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Christopher ARTIS.
    No. 80-KA-1659.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Allen W. Helm, Sam A. Smith, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Percy A. Ford, West Monroe, for defendant-appellant.
   CALOGERO, Justice.

Defendant Christopher Artis was charged by bill of information with simple burglary (R.S. 14:62) of the Texas Avenue Food Store in the city of Monroe. Following trial by jury, he was found guilty and sentenced to serve four years at hard labor. On appeal to this Court, defendant argues two assignments of error. Finding no merit in either of these assignments, we affirm the conviction and sentence of defendant.

Defendant’s first assignment of error is that the trial judge refused to give a special requested jury charge regarding identification testimony. An eyewitness to the crime identified defendant as the perpetrator. This witness was acquainted with defendant because defendant was a friend of the witness’ granddaughter and had visited with her at the witness’ home. The witness encountered defendant during the course of the crime and defendant spoke to the witness, in essence telling him that the activity was none of his business. Defendant’s requested jury charge is twofold: defendant asked that the judge charge the jury concerning the likelihood of misidenti-fication and the credibility of a witness who makes an identification. The judge’s general charge dealt extensively with the assessment of credibility of a witness and also informed the jurors that they should consider a witness’ ability to observe and the conditions under which the observation occurred. Defendant’s requested charge need not have been given because it was covered in the general charge. C.Cr.P. art. 807.

Defendant’s second assignment of error is that he received an excessive sentence. The trial judge sentenced defendant to four years at hard labor for a crime which carries a maximum sentence of twelve years. Before pronouncing sentence, the judge determined that defendant had been placed on probation for a juvenile offense and sent to the Louisiana Training Institute; had been paroled from L.T.I., whereupon he committed another offense for which his parole was revoked; and he had then been returned to L.T.I. Under these circumstances, we are not prepared to say that four years is an excessive sentence for the crime of simple burglary. C.Cr.P. art. 894.1.

Decree

For the above reasons we affirm defendant’s conviction and sentence.

AFFIRMED.


author: BOUTALL, Judge. BOUTALL, Judge.

text:
    Harry P. GAMBLE, Jr. v. Mrs. Rose Chapman GAMBLE.
    No. 10606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    On Rehearing Dec. 9, 1980.

      Charleton B. Ogden, II, New Orleans, for Harry P. Gamble, Jr., appellee.
    Windmeyer & Dinwiddie, Bruce W. Din-widdie, Metairie, for Mrs. Rose C. Gamble, appellant.
    Before BOUTALL, SCHOTT and JOHN T. HOOD (assigned), JJ.
   BOUTALL, Judge.

This appeal is from a summary judgment on a petition for partition by licitation, not only decreeing the partition and the proportions of ownership of the property, but also dismissing plaintiff’s exceptions, answer, and reconventional demand.

Plaintiff, Harry T. Gamble, Jr., filed a petition for partition by licitation of a piece of ground with improvements thereon, Municipal No. 1316 Henry Clay Ave., New Orleans, La., measuring roughly 48' by 130', against his former wife, Rose C. Gamble, alleging that the property was owned Vsths by him and Vsth by her. This suit was filed in the same proceeding wherein the parties had previously been decreed separated and then divorced. To this petition Rose Gamble filed the dilatory exceptions of prematurity and want of amicable demand, the peremptory exceptions of no cause of action and no right of action, and an answer denying that her ownership was only Vsth, but alleging that she owned a 50% interest because the property was purchased with and maintained by community funds acquired during the marriage, and asserting that the property was further subject to a contract executed between the parties which permitted her the use and possession of the property until the year 1998, praying for dismissal of suit and alternatively recognition of her ownership. At the same time she filed a reconventional demand for specific performance of the contract between the parties, and for damages for its breach. In response to these pleadings, the plaintiff filed an answer to the reconventional demand alleging that the contract was signed by him without consideration, that the terms of the contract were subsequently altered without his knowledge or consent, and that he had already specifically performed the contract up to its original date and terms, although he was not legally obligated to do so. At the same time, he filed a motion for summary judgment alleging that “the pleadings, actions heretofore taken in the above entitled and numbered proceedings, the document attached to defendant’s response to plaintiff’s petition, and documents on file in the Conveyance and Mortgage records of this Parish show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law; He prayed that summary judgment be rendered in favor of plaintiff as prayed for in his petition.

It is this motion for summary judgment and the resulting judgment which is the subject of this appeal. The trial judge (1) overruled the defendant’s exceptions; (2) dismissed the recon ven tional demand; (3) granted judgment in favor of plaintiff “as prayed”, ordered the property sold at public auction by an auctioneer; and (4) appointed a Notary Public to effect the partition between the parties.

The general rules governing the granting of summary judgment are succinctly set out in the case of Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978) at page 565:

“[3-6] It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

First we note that there does not seem to be any factual issue raised as to the indivisibility of the property such that it could be partitioned in kind or was subject to partition by licitation, and that portion of the judgment ordering a partition by licitation is justified. However, there is a dispute raised in the pleadings as to the ownership of the property. Plaintiff contends he owns Vsth undivided interest in the property and that Rose Gamble owns Vsth. As opposed to this Rose Gamble alleges in her answer that she owns a 50% interest because the property was purchased with and maintained by the community funds, acquired during the marriage. Besides the bare allegations contained in the petition and in the answer, there is no proof as to ownership. The motion for summary judgment makes reference to documents filed in the mortgage and conveyance records, but the record does not disclose that these documents were ever offered in support of the motion. We note that in the judgment rendered, the court made reference, following the description of the property, to four acts of acquisition of title, which would indicate that at least a A interest was acquired during the marriage. We are also told in brief, but not in the pleadings or by affidavit, that some sort of ante-nuptial agreement is filed in the records. We are not aware of what basis the trial judge concluded, in rendering judgment as prayed, that the ownership was Vsth to Harry Gamble and Vsth to Rose Gamble. As this record stands, that is a contested fact and the summary judgment determining the proportions of ownership is erroneous.

The largest issue in the case is the validity of the agreement of December 20, 1974, and its effect upon the rights of the parties. By that agreement, Gamble agreed to make a letter of intent dated July 9, 1974 legally binding, except that Rose Gamble and their son Ronald Gamble were granted use of the property sought to be partitioned, with its contents, until October 1, 1998. It was further provided that they could keep the rents from the basement apartment and also use some Mandeville property during this same period of time. There is a direct dispute between the parties as to whether the document had originally provided the date of October 1, 1978 when it was signed by the parties, and that it had been changed later to October 1,1998 without the knowledge or consent of Harry Gamble. Additionally, the document contains a sentence at the end thereof by which Harry Gamble agreed to give Rose Gamble $1,000 a month until 1990. There is a similar dispute as to whether that sentence was added after the signing of' the agreement. This agreement constitutes the major basis of the exceptions and the recon-ventional demand filed by Rose Gamble. The dispute as to the terms of that agreement makes it clear that summary judgment is not the proper remedy in this case, if the document has any legal effect.

Appellant contends that the document is null and void, because it is a contract between a husband and wife made at a time when they were still legally married, although separated. The facts show that a judgment of separation between the parties was signed July 11,1974, the document was made on December 20, 1974 and the parties were divorced by judgment signed August 2, 1978. Appellant urges that under the provisions of Civil Code Article 1790 the husband and wife are incapable of contracting, and that this document is not one of the permitted exceptions set out in Civil Code Article 2446. It should be additionally noted that Ronald Gamble did not sign the document, that at that time he was a minor in the legal custody of his mother, and did not attain the age of majority until March 19, 1977.

The purpose and intent of this document is not satisfactorily explained based upon the record presented to us. Each party merely states that the other induced the making of the agreement. The document itself gives no clue except that the only obligation imposed upon Mrs. Gamble is that the agreement would become null and void if Mrs. Gamble would begin any procedure to delay or prevent her husband from obtaining a divorce after July 11, 1975 on the grounds of one year separation. The agreement is certainly not one of the permitted contracts of sale specified in Civil Code Article 2446. It appears to be an agreement to pay additional alimony pen-dente lite and beyond divorce, provided Mrs. Gamble did not contest the divorce. However, the record shows that the parties had agreed to, and the judge had approved, a judgment of alimony and child support considerably less than this at the time of the judgment of separation. The judgment of separation was rendered against Mrs. Gamble, apparently on the grounds of cruel treatment, and thus seeming to prevent her obtaining post divorce alimony. It appears to us that the document could perhaps be characterized simply as an agreement to pay alimony and thus prohibited under Article 1790. See Russo v. Russo, 205 La. 852, 18 So.2d 318 (La.1944); Ward v. Ward, 339 So.2d 839 (La.1976); Sonnikson v. Whipple, 283 So.2d 504 (La.App. 1st Cir. 1973). At the same time, it appears to us that the document could be characterized as a donation inter vivos. We refer to the provisions of Civil Code Articles 1746 and 1752. This premise is supported in the document by the provisions that Mrs. Gamble shall not be required to account to Mr. Gamble or his heirs for any money or property which she has received from him by gifts or otherwise, and a further agreement that if she should remarry, the agreement would be null and void unless Mr. Gamble had died.

We do not feel compelled, on this appeal from motion for summary judgment, to decide the precise nature of the contract and its legal effect. That seems to us to be a matter of determination on the merits. It is sufficient for our purposes only that there be such doubt as to preclude the issuance of summary judgment. The summary judgment procedure should be used cautiously and not as a substitute for a trial on the merits. Any doubts as to the existence of a material factual issue are to be resolved against granting of summary judgment and in favor of trial on the merits to resolve those disputed facts. This is true even in cases in which the trial judge may feel that there is little or no likelihood of successful defense of the case by the defendant or of successful prosecution of her reconventional demand. In this case, those doubts can only be removed by the taking of additional evidence in order to establish the nature of the contract between the parties, as well as the extent of ownership in indivisión of the property sought to be partitioned.

Accordingly, we reverse the summary judgment granted plaintiff in all respects except only insofar as it may declare that the property is not susceptible of division in kind and orders partition by licitation. The costs of this appeal are assessed against appellee. The other costs to await final outcome of the case.

REVERSED IN PART, AFFIRMED IN PART.

ON REHEARING

Before BOUTALL, SCHOTT and BARRY, JJ.

BOUTALL, Judge.

Upon the application of both parties for a clarification of the judgment and for a rehearing, we granted rehearing and we now reinstate our original judgment.

In that judgment we affirmed that portion of the summary judgment appealed “insofar as it may declare that the property is not susceptible of division in kind and orders partition by licitation.” Both parties inquire whether “orders partition by licitation” means that the partition should proceed. We admit that these words have caused some confusion, but it was not our intention to hold that the partition should proceed to completion. We simply noted that there was no factual issue raised as to the indivisibility of the property (a house located on a city approximately 48 feet by 130 feet) and thus the property was subject to partition by licitation rather than in kind. To remove any doubt, we now hold that there can be no partition sale until further proceedings may be had.

We are led to this conclusion because we do not believe a fair appraisal and sale of this property at public auction can take place until there is a resolution of the problems posed by the contested agreement. This matter comes before us on appeal from a summary judgment. We pointed out that there was a contested issue of fact of ownership. What is of most importance here, however, is that we are not able to determine the effect that the contested agreement will have upon the salability of the property.

We point out that the agreement is not complete of itself. It begins: “I Harry P. Gamble, Jr. agree to and do hereby make said ‘ “Letter of Intent” ’ dated July 9, 1974 legally binding upon myself and my estate, except that Rose C. Gamble and our son Ronald P. Gamble may have use of the 1316 Henry Clay Ave., property * * * * etc. * *. There is no evidence as to what that “Letter of Intent” may contain. We notice that there is an ante-nuptial contract between the parties the contents of which are unknown. With these deficiencies in mind, we are compelled to consider Mrs. Gamble’s allegations in her reconventional demand which seem to raise an issue of fraud or estoppel:

“At all times pertinent hereto, plaintiff in reconvention was a layman and the judicially separated wife of defendant in reconvention, the latter being an experienced and practicing attorney at law, and the latter having induced the plaintiff in reconvention to enter into the contract sued upon herein.”
* * * * * #

While these allegations are vague, nevertheless this is a summary judgment proceeding and we must take notice of our remarks in the case of Sarpy v. Sarpy, 354 So.2d 572 (La.App. 4th Cir. 1977), which involved the legality of a donation made by an attorney to his wife. We said at p. 575:

“[7] This appeal is from a summary judgment. Whether or not Mr. Sarpy should be equitably estopped from asserting the nullity of the donations depends upon unresolved issues of material fact, and Mrs. Sarpy should be allowed an opportunity to prove, at the trial on the merits, the facts necessary to provide a basis for estoppel. We do not attempt to speculate on what facts will support an estoppel, because such a decision always depends upon the facts and circumstances of the particular case. Noting that some facts in the record suggest a basis for applying the doctrine of estoppel, we simply hold that summary judgment is not now appropriate.

For these reasons, as well as those stated in our original opinion:

1. We affirm the judgment appealed only insofar as it may declare the property susceptible of partition by licitation;

2. We set aside the balance of the summary judgment and remand the case for further proceedings.

AFFIRMED IN PART, SET ASIDE IN PART.


author: SWIFT, Judge.

text:
    AMERICAN DISCOUNT CORPORATION, Plaintiff-Appellee, v. Bernice F. GLOVER, Defendant-Appellant.
    No. 7797.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Marcia Finkelstein, Lafayette, for defendant-appellant.
    Paul J. deMahy, St. Martinville, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

The defendant, Bernice Glover, has appealed from a judgment holding her liable as an accommodation maker for the amount owed on a promissory note.

On September 16,1977, Lloyd A. Francois and his wife, residents of St. Martinville, St. Martin Parish, Louisiana, obtained a loan from American Discount Corporation (American), the plaintiff, to purchase a washer, dryer and refrigerator. Mrs. Glover, their next door neighbor, signed the note for $1,488.00 payable in monthly installments. It was secured by a chattel mortgage on the appliances.

In April, 1978, Mrs. Glover noticed that the Francois were loading their furniture and possessions into a truck bearing a Texas license plate. Mr. Francois told her they were moving back to Texas and she immediately notified Mr. Morral Roy, American’s manager.

Roy went to the Francois’ home and observed that the mortgaged appliances were being loaded on the truck. Mr. Francois confirmed the fact that he and his wife were returning to Texas, but said he was moving the appliances to his brother’s home in the community of Cade which is also St. Martin Parish. Mr. Roy told Francois he could not remove the mortgaged appliances from St. Martin Parish and the latter acknowledged he was aware of this. The Francois’ were not delinquent in their installments on the note at this time. However, their last monthly payment was made on June 29, 1978.

American was unable to locate the Francois or the mortgaged appliances thereafter and filed this suit against the defendant for the balance due on the note plus interest and attorneys fees. Mrs. Glover’s defense, that plaintiff’s refusal to prevent the removal of the appliances unjustifiably impaired the collateral and to that extent discharged her from liability, was rejected by the trial court. The judge found the following:

“1. The note was not in arrears at the time of the occurrence.
“2. The plaintiff was justified in accepting the makers (sic) explanation that he was moving the property to the home of his brother which was in the Parish of St. Martin.
“3. Said action was not a violation of his obligations under the contract.
“4. No action of the plaintiff unjustifiably impaired any right to which the surety was entitled.’’

On appeal Mrs. Glover asserts that the trial court erred in rejecting her affirmative defense under LSA-R.S. 10:3-606. She further contends that she was also discharged by LSA-C.C. Art. 3061, because she was a surety on the note and American’s actions made it impossible for her subrogation to the creditor’s rights, mortgages and privileges to be exercised.

As a party to the instrument Mrs. Glover is entitled to assert as a defense the provisions of R.S. 10:3-606, which in pertinent part reads as follows:

“(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
# sfc * * sfc ♦
“(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

We agree, however, with the trial judge that no action of the plaintiff unjustifiably impaired the collateral or any right to which the defendant was entitled.

At the time of their move the Francois were not in arrears on the note. American’s manager did attempt to discover where they were moving the appliances. But he did not have sufficient information to the contrary to dispute Mr. Francois’ response that the appliances were not leaving the parish. The manager reminded Francois that they could not take the mortgaged property out of St. Martin Parish and the latter seems to have agreed.

Since the law does not approve of self-help, any physical attempt to prevent Francois from moving the property certainly would have been inappropriate.

We are not convinced that on the basis of the information at hand the plaintiff was under a duty to seek sequestration or an injunction to prevent Francois from moving the appliances. Further, it was not established that American had sufficient time in this case to take effective legal action aimed at preventing the move.

We are convinced that American’s actions were reasonable in this instance and therefore did not unjustifiably impair the collateral or any rights to which the defendant was entitled.

This finding also disposes of the appellant’s argument that she was a surety and discharged under Article 3061 of our civil code. Even if this solidary accommodation maker was a surety entitled to the relief provided by this codal article, of which we have some doubt, under the present facts American did nothing to cause her subrogation to the creditor’s rights to become inoperative.

Glass v. McLendon, 66 So.2d 369 (La.App. 2 Cir. 1953), relied on by appellant, is readily distinguishable. In that case the creditor actually consented to the removal of the mortgaged furniture from Louisiana to Arkansas.

For the foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: LABORDE, Judge.

text:
    Succession of Mary Maude Greenlee OSTERLAND, Plaintiff-Appellant, v. Mary O. GATES et ux., Defendants-Appellees.
    No. 7804.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Rehearing Denied Jan. 2, 1981.

      McLure & McLure, Thomas C. McLure, Alexandria, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, C. Jerre Lloyd, Lake Charles, for defendants-appellees.
    Before FORET, STOKER, and LA-BORDE, JJ.
   LABORDE, Judge.

Alma O. Fey brought this suit as adminis-tratrix of her mother’s succession seeking collation of gifts and repayment of succession debts. Made defendants were Mary O. and Stanley Gates, Mrs. Fey’s sister and brother-in-law. Both defendants answered, generally denying collation was due and asserting prescription of the succession debt. Through later proceedings, Mrs. Gates further sought: to compel collation of gifts from Mrs. Fey, to offset any amounts she may be compelled to collate by showing that certain gifts received from her mother were intended as onerous or remunerative donations, and to recover $2,305 in currency. Following a trial, the trial judge found Mrs. Gates obliged to collate $49,890.91 and Mrs. Fey obliged to collate $4,545.38; both sums bearing interest from date of judicial demand until paid. Mr. Gates was found to be free from any collation obligation. The trial judge denied both Mrs. Gates’ claim that the gifts received were onerous or remunerative donations and her claim to the $2,305 in currency. The trial judge did not rule on Mrs. Fey’s succession debt claim. All parties appeal.

The salient facts are these: Mary Maude Greenlee Osterland, widow of Andrew John Osterland, died on February 2, 1973, leaving her two daughters, Alma Osterland Fey and Mary Osterland Gates, as heirs. During her lifetime, Mrs. Osterland purchased bonds in favor of her daughters as well as made gifts and loaned money to them. She also loaned money to one of her sons-in-law, Stanley Gates. This appeal focuses primarily on issues resulting from these purchases, gifts, and loans, which issues will be discussed separately in hopes of simplifying them.

At the outset we note that certain trial judge findings, either because they have not been appealed from or because they were stipulated on at the trial level, remain unchanged on appeal. These include the following: Mrs. Fey and Mrs. Gates must collate bonds received from their mother and issued in each of their names individually. Mrs. Gates need not collate $3,000 she withdrew from her mother’s account and used to pay her mother’s debts. Mrs. Gates, by proving she spent $993.98 on debts of her mother, is entitled to a credit in that amount on the total sums she must collate. Mrs. Fey must collate sums of checks received from her mother totaling $4,545.38.

THE GOVERNMENT BONDS WITH A SURVIVORSHIP PROVISION

During her lifetime, Mrs. Osterland purchased U.S. Government Bonds and had them issued jointly in her name and in the name of either Mrs. Fey or Mrs. Gates. These co-owner bonds featured a survivor-ship provision vesting full ownership in the surviving co-owner at the moment of the decedent co-owner’s death.

When Mrs. Osterland died, Mrs. Fey and Mrs. Gates, through the operation of the survivorship provision, became the sole owners of their respective co-owner bonds previously held in joint tenancy with their mother. At the trial level, both sisters sought to compel collation from each other for the value of the bonds each received. The trial judge held that the bonds passed immediately in full ownership to each surviving co-owner in accordance with federal law and without being subject to Louisiana’s law granting certain heirs the right to compel collation from their co-heirs. We affirm that part of the judgment recognizing each daughter as sole owner of the bonds, thus giving effect to federal law. However, for the reasons given below, we reverse that part of the judgment denying the collation claims and hold instead that a parent cannot use survivor bonds to circumvent Louisiana’s established laws granting collation rights to co-heirs coming to their parent’s succession.

We deal first with Alma Fey’s collation claim against Mary Gates for the value of the survivor bonds Mrs. Gates holds in full ownership as surviving co-owner. These bonds total $56,000 and include the following individual bonds:

AMOUNT ISSUE DATE
$25,000 May, 1972
5,000 April, 1972
5,000 July-May 1956
5,000 October, 1959
5,000 July, 1957
10,000 February, 1957
1,000 May, 1956
$56,000 TOTAL

Succession of Guerre, 197 So.2d 738 (La.App. 4th Cir. 1967) writ refused, 250 La. 933, 199 So.2d 926, dealt with an analogous situation. That case involved a father who died leaving his three children as forced heirs. During the father’s lifetime, he purchased a total of 50 U.S. Savings Bonds. Each of these bonds included a survivorship provision in favor of persons other than his forced heirs. The bonds were appraised at $42,779.60. The balance of the father’s estate was $8,941.35 making the total value of his estate $52,507.95. Obviously, the exclusion of the $42,779.60 represented by the survivor bonds in favor of these strangers would greatly reduce the legitime due his forced heirs. Conscious of the United States Supreme Court’s announcements in Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), and Yiatchos v. Yiatchos, 376 U.S. 306 84 S.Ct. 742, 11 L.Ed.2d 724 (1964), providing that under the federal treasury regulations the surviving co-owners of bonds are entitled to them unless their purchaser committed fraud or breach of trust tantamount to fraud, the court set about to discover whether the father had committed fraud or breach of trust amounting to fraud. It began by reviewing Louisiana’s forced heirship laws. The court found that these laws give a forced heir a constitutionally vested right of inheritance to no less than a fixed minimum portion of his parent’s property, the legitime, and also provide him with a remedy to proceed against donees of his parents seeking reduction of excessive donations which impinge upon his legitime. The court concluded that these were important state laws which would be circumvented by recognizing the strangers as sole owners of the bonds without. allowing an action of reduction. Emphasizing that an act can be wrong without meeting the rigid requirements of fraud, the court held that any attempt by a parent to breach a forced heir’s legitime rights by means of converting his estate into survivor bonds payable to a stranger is a breach of trust tantamount to fraud. The court then allowed the forced heirs to bring their action of reduction against the strangers in order to prevent a parent’s use of survivor bonds as a device to circumvent state law.

We have detailed the facts and holding of Succession of Guerre because we feel it is relevant to the disposition of this case. For example, Louisiana law presumes equality among co-heirs coming to their parent’s succession. Thus, gifts received from the parent, without the parent’s formal expression that they are given as an extra portion, are viewed as advancements which the heir may one day expect to receive from his parent’s succession. This presumption obliges an heir to collate his gifts and provides the co-heirs with a right to compel collation from the heir who seeks to avoid this obligation. We feel these collation laws are important state law. If we recognize Mrs. Gates as owner of these bonds totalling $56,000 without also recognizing Mrs. Fey’s collation claim, we would be allowing the very thing the court in Succession of Guerre sought to avoid, namely, a parent’s use of survivor bonds as a device to circumvent important state law. For these reasons, even though we agree with the trial judge that Mrs. Gates must be recognized as the sole owner of these survivor bonds in order to give effect to federal law, we nevertheless allow Mrs. Fey to seek collation of their sums in order to prevent use of survivor bonds as a device to circumvent important state law.

Next we deal with Mrs. Gates’ collation claim against Mrs. Fey for the value of the survivor bonds Mrs. Fey holds in full ownership as surviving co-owner. These bonds total $25,000. The trial judge found the bonds to be free from collation. Mrs. Gates did not, by way of answer to this appeal, ask us to modify, revise, or reverse the trial judge’s denial of her collation claim. However, relying on Bond v. Commercial Union Assurance Companies, 387 So.2d 617 (1980) we feel the issue is properly before us and we reverse.

The court in the Bond case announced the following principle:

“An appellee is required to answer an appeal only if he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant.... ”
******
“The party successful at the trial level cannot appeal the judgment to the Court of Appeal.”

Applying this principle to our case, we feel that Mrs. Gates was successful at the trial level. Even though her collation claim against Mrs. Fey concerning the $25,000 in government bonds was denied, she was successful in avoiding Mrs. Fey’s' collation claim concerning the $56,000 of government bonds she received as surviving co-owner. Mrs. Gates as the successful party at the trial level, need not appeal the denial of her $25,000 collation claim against Mrs. Fey in order that this court could hear that claim on appeal in the event her successful judgment was reversed. We conclude that it is just, legal, and proper on the record to decide Mrs. Gates’ collation claim against Mrs. Fey concerning the survivor bonds.

Adopting the same reasoning applied and the same result achieved in our earlier discussion of collation of sums received from survivor bonds, we hold that Mrs. Fey must collate these sums received from her mother as surviving co-owner.

THE CHECKS

During her lifetime, Mrs. Osterland issued several checks in favor of Mrs. Gates. Mrs. Fey sought collation of the sums of these checks totaling $18,884.89. Without articulating why, the trial judge ordered Mrs. Gates to collate these sums. Because he earlier excluded from collation other checks issued in a similar manner, finding that Mrs. Gates used those funds to pay debts of her mother, we assume the trial judge ordered collation here because he was unconvinced of Mrs. Gates’ use of any of these funds to pay her mother’s debts. Without such proof, the checks are considered as gifts subjecting them to collation. For the reasons which follow, we affirm the trial judge’s ruling.

In Succession of Browne, 176 So.2d 217 (La.App.2d Cir. 1965), the court announced that a daughter need not collate funds received from her mother when the daughter proves they were used for her mother’s benefit. To escape collation of these checks then, Mrs. Gates must prove they were used for her mother’s benefit.

We now review the evidence to see whether Mrs. Gates has proved use of these checks for her mother’s benefit. Mrs. Gates shows that after her father’s death, in a very real sense, her mother moved in with the Gates family. She had a bedroom and private bath in their home and she ate most of her meals with them. Yet in spite of these favorable circumstances for proving use of these funds for her mother’s benefit, Mrs. Gates failed to document any of their expenditures. Instead her testimony is filled with repeated assertions that she did not remember for what the funds were used. We contrast this testimony with other testimony which shows that Mr. Oster-land left Mrs. Osterland with sufficient funds to lead a good life and that she did indeed live a good life. She maintained a checking account, opened several savings accounts, purchased several bonds, et cet-era. Added to all of this is Mrs. Gates’ testimony that her mother paid her own way. (Tr.330).

Our review of the record supports the trial judge’s conclusion that the checks were gifts subject to collation.

THE SAYINGS AND LOAN CERTIFICATES

At the trial level, Mrs. Fey asserted a collation claim against Mrs. Gates involving two savings and loan association certificates totaling $20,000. After reviewing somewhat conflicting evidence, the trial judge was satisfied that Mrs. Fey proved these certificates were given to and received by Mrs. Gates and ordered collation. The trial judge was particularly impressed with a Louisiana Gift Tax return showing Mrs. Osterland as donor of these two savings and loan certificates and Mrs. Gates as donee. The trial judge also considered a letter from the Baton Rouge Savings and Loan Association confirming that Mrs. Ost-erland, as original owner, transferred the certificates to Mrs. Gates who was thereafter treated by the association as the new owner entitling her to receipt of the dividend checks.

Our review of the record indicates no manifest error in the trial judge’s ruling concerning these two savings and loan certificates. We affirm.

THE WATER WELL LOAN

Mrs. Fey introduced evidence showing Mrs. Gates borrowed $15,000 from her mother to purchase a water well and has repaid only $5,000. She alleged the unpaid $10,000 balance should be treated as a gift thus obligating Mrs. Gates to collate that sum. The trial judge felt the evidence supported Mrs. Fey’s allegations, noting Mrs. Gates’ failure to prove that any of the remaining balance was paid despite her repeated assertions that they were. The trial judge concluded that if this was a loan originally, it was later treated as a gift by both parties and is subject to collation. We agree.

The rule is well settled in Louisiana that a parent’s gratuitous remission of a debt owed by the child subjects that amount to collation. This is so because in releasing the child’s obligation, the parent has in effect made a donation of the original debt. That donation, made without formally expressing that it was given as an extra portion, subjects it to Louisiana’s collation laws.

We hold the evidence supports the trial judge’s conclusion that the $10,000 debt was remitted thus obligating Mrs. Gates to collate the sum.

INTEREST OR REVENUE

At this point, Mrs. Gates must collate in the sum of $105,890.91 and Mrs. Fey must collate in the sum of $29,545.38. We are now concerned with whether interest or revenue is due on these amounts subject to collation and if so, when do they commence to run? The trial judge felt collation of revenues would be improper because the gifts by Mrs. Osterland to her daughters were made in full ownership. However, he felt both daughters owed interest on these amounts which interest commenced running from date of judicial demand and continued until paid.

Mrs. Fey appeals urging error in the trial judge’s denial of “collation of the income from these checks (which should be legal interest) from the time of transfer until paid.” Mrs. Gates meets her argument with an assertion of no manifest error in the trial judge’s ruling and then in her answer to this appeal, Mrs. Gates asserts that Mrs. Fey is not entitled to any award of interest. In support of her latter assertion, Mrs. Gates cites LSA C.C.P. Art. 1921 which authorizes the court to award interest in the judgment as prayed for. Basing her argument on this article, she contends the trial judge erred in granting interest because Mrs. Fey, in her alternative prayer which was granted, made no judicial demand for interest.

The trial judge was correct in awarding interest. We feel Mrs. Fey’s specific request for “interest from date of decedent’s death until paid at 7% per annum and costs”, even though demanded only in her first prayer, is sufficient when coupled with her final prayer for “full, general, and equitable relief”.

We next consider whether the trial judge erred in awarding interest only from date of judicial demand.

We find no manifest error in the trial judge’s conclusion that Mrs. Osterland transferred property to her daughters in full ownership and his reliance on the Louisiana Supreme Court’s announcement in Clark v. Hedden, 109 La. 147, 33 So. 116 (1902) that no collation is due for revenues of property, the full ownership of which has been donated. For these reasons, the trial judge was correct in awarding interest only from date of judicial demand.

THE GIFTS AS REMUNERATIVE OR ONEROUS DONATIONS

Mrs. Gates sought to offset any amounts she must collate by claiming the gifts from her mother were intended as onerous or remunerative donations for services rendered by the Gates. The trial judge did not accept her argument as there was no proof that the Gates attached any conditions to the services rendered Mrs. Osterland, nor were they rendered with any expectation of being recompensed. For different reasons, we affirm.

While we agree the law allows persons to offset sums they must collate by proving gifts from a parent were made with onerous or remunerative donative intent, we hold Mrs. Gates has failed to prove her mother intended the gifts as either onerous or remunerative donations.

A brief reference to Mrs. Gate’s testimony illustrates her lack of proof. For example, Mrs. Gates testified that she did not think her mother gave her any money for taking care of her:

“Q. Now, dealing with the funds that she [Mrs. Osterland] would have given you, [Mrs. Gates] over and above these that she gave you and you did receive, were those monies given to you in consideration for the services you were rendering to her?
A. I don’t think so. I didn’t know whether she did or not.
Q. Why would she give you money then?
A. I don’t think she gave me any money for taking care of her (Tr .329-330)

Placing great emphasis on Mrs. Gates’ own admitted doubt of her mother’s intent to make an onerous or remunerative donation for services rendered, Mrs. Gates failed to prove any onerous or remunerative donations entitling her to offset amounts she must collate.

Mrs. Gates’ failure of proof distinguishes her case from the cases she cites in support of her argument, thus rendering them irrelevant to the disposition of this case.

THE COLLATION CLAIM AGAINST STANLEY GATES

At the trial level, Mrs. Fey sought to compel collation of sums from Stanley Gates. The sums are reflected in five checks issued by Mrs. Osterland and payable to Stanley Gates or to Gates, Inc. These checks include the following:

CHECK DATE
AMOUNT PAYEE ISSUED
$10,000.00 Gates, Inc. 11/14/56
10,000.00 Gates, Inc. 11/28/56
1,353.31 Stanley Gates 11/14/57
8,646.69 Stanley Gates 11/14/58
2,000.00 Gates, Inc. 06/30/60

Citing Succession of Browne, 176 So.2d 217 (La.App. 2nd Cir. 1965) and Succession of Nelson v. Wiegand, 224 La. 731, 70 So.2d 665 (1953), the trial judge denied Mrs. Fey’s collation claim against Mr. Gates.

Each of the cases cited by the trial judge involved collation claims asserted against a son-in-law. In both cases, the court denied the collation claims reasoning that collation is due only by descendant heirs and that since a son-in-law is not a descendant heir, he could not be made to collate. This same reasoning applies to Stanley Gates. Finding no manifest error, we affirm.

THE SUCCESSION DEBT CLAIM

Mrs. Fey sought recovery of a $20,000 debt she claimed Stanley Gates owed Mrs. Osterland and now owes her succession. This $20,000 debt is represented by two of the same checks listed above in our discussion of Mrs. Fey’s collation claim against Stanley Gates. Each check is for $10,000. One was issued on November 14, 1956, and one on November 28,1956. The trial judge found this to be a succession debt not at issue in a suit for collation. Consequently, he did not rule on this claim. We reverse. For the reasons stated below, we feel recovery of this $20,000 debt is properly at issue. However, because we find the debt has prescribed, we deny recovery.

Our first concern is whether recovery of this debt is at issue. Louisiana Code of Civil Procedure Article 2971 provides that except as otherwise provided by law, the rules of pleading applicable in ordinary proceedings apply to succession proceedings. Applying these rules, we find recovery of the $20,000 debt was placed at issue when Mrs. Fey, in paragraph 6 of her petition alleged that Mr. Gates obtained loans from Mrs. Osterland totaling $20,000, which loans were never repaid and Mr. Gates, in paragraph 6 of his answer, replied that any unpaid loans once owing to Mrs. Osterland were now prescribed. We feel these pleadings suffice to place collection of the $20,-000 debt properly at issue.

We now determine whether the claim for $20,000 is prescribed. Louisiana Civil Code Article 3538 provides that actions for payment of money lent prescribe in three years, unless the debt has been acknowledged in writing. If acknowledged, prescription is interrupted. Application of this code article to our facts leads to the conclusion that the loans in 1956 have long prescribed unless Mr. Gates has accomplished a written acknowledgment sufficient to interrupt prescription.

Mrs. Fey seeks to prove an acknowledgment by offering evidence of a bookkeeping entry documenting this debt. The circumstances surrounding this entry indicate that Mr. Gates entered the debt in his books in 1956 as an original bookkeeping entry. We hold that these circumstances fail to support the type of acknowledgment necessary to interrupt prescription. Instead, we view the entry as nothing more than a mere notation of a debt. It is directed to no one in particular and is made without any promise of Mr. Gates to pay it. Nor does it contain Mr. Gates’ signature.

Since the bookkeeping entry fails to accomplish a written acknowledgment, it also fails to interrupt prescription. See Wooden v. Hartford Insurance Company, 335 So.2d 742 (La.App. 2nd Cir. 1976) rehearing denied. Without an effective acknowledgment, the $20,000 debt has prescribed and is no longer collectable.

MARY GATES’ CLAIM TO $2,305

In paragraph 3 of her Opposition to Tableau of Distribution, Mrs. Gates contends that pursuant to a court order issued in her father’s succession, the sum of $2,305 in gold and silver certificates located in safe deposit box #388 in the Calcasieu Marine National Bank in Oakdale, Louisiana, was ordered removed from that box and delivered to her. Claiming this currency was never delivered to her and was instead removed by Alma Fey who still has it in her possession, Mrs. Gates prayed that she be recognized as owner of the $2,305 and that Alma Fey be ordered to deliver the sum to her. (Tr.166; 170) The trial judge denied Mrs. Gates’ claim finding the evidence insufficient to support it. For different reasons given below, we affirm.

At the trial level, Mrs. Gates’ counsel in his presentation of her opposition stated:

“... Your Honor, the Gates would like to amend their opposition to the tableau to delete paragraphs one, two, three, four, five, six, seven.... ” (Tr.357)

By deleting the very paragraph which set forth this claim to $2,305, we feel Mrs. Gates had forfeited any rights she may have had to recover the sum. For these reasons, we affirm the trial judge’s denial of Mrs. Gates’ claim to $2,305.

ADDITIONAL ATTORNEY’S FEES

On appeal, counsel for Mrs. Fey asks this court to increase the award of $9,973.07 in attorney’s fees granted at the trial level by an additional $9,973.07. The trial judge refused to award the additional attorney’s fees for handling the succession. We agree with the trial judge’s reasoning as well as with his result, and adopt, as our own, the following part of his opinion:

“The Court will not award additional attorney fees for handling the succession. While the Court does not doubt that attorneys for Alma O. Fey have earned such additional sums, the Court believes that this would exceed reasonable compensation. The cases cited by attorneys for Mary O. Gates (Gilmore, Daste, Benson, etc.) convince the Court that the previous amount awarded ($9,973.07) was a high award and should not be increased.”
“Another reason is that the attorneys expended much of their time and effort in an adversary proceeding in which their client, Alma O. Fey, was attempting to obtain a larger share of the succession assets by forcing her co-heir and sister, Mary O. Gates, to collate. This is contrasted with the usual administrative duties of the attorney handling a succession. It seems fair to the Court that Alma O. Fey should pay some of these attorney fees just as Mary O. Gates has paid or will pay for all legal services rendered in her behalf.”

Based on the above reasoning, we affirm the award of $9,973.00 to Mrs. Fey’s attorneys for handling the succession matters. An award of additional attorney’s fees is unwarranted.

DECREE

Accordingly, for the above reasons, the judgment of the trial court is reversed insofar as it failed to order collation of gifts received as surviving co-owner of U.S. Savings Bonds and it is ordered, adjudged and decreed that Mary O. Gates collate the sum of $56,000 representing her gift of U.S. Savings Bonds and that Alma 0. Fey collate the sum of $25,000 representing her gift of U.S. Savings Bonds. In addition, it is ordered, adjudged and decreed that the succession debt is prescribed. In all other respects, the judgment of the trial court is affirmed. Costs of the appeal are assessed one-half against Mary O. Gates and one-half against the Succession.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.


author: STOKER, Judge. STOKER, Judge,

text:
    Lee RUSHING, Jr., Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellants.
    No. 7691.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for defendants-appellants.
    Ford & Nugent, William M. Ford and Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

Plaintiff, Lee Rushing, Jr., instituted this workmen’s compensation action against John L. Pleasant, and his workmen’s compensation insurer, Insurance Company of North America, seeking benefits for total and permanent disability. Following a trial, judgment was rendered in favor of plaintiff awarding benefits for total and permanent disability, medical expenses, penalties and attorney’s fees. The insurer brings this appeal from the judgment rendered below. Plaintiff answered the appeal seeking an increase in attorney’s fees to $5,000.

Plaintiff was employed by Mr. Pleasant as a painter. On April 17, 1976, plaintiff fell from a stepladder onto a concrete walk. Plaintiff reported the accident to a fellow employee and continued working. Plaintiff worked the next day, but did not return to work the following Monday.

Several days after the accident, plaintiff sought treatment for his left knee at the Veterans Administration Hospital. He was diagnosed as having osteomyelitis in the knee, a degenerative knee condition. Approximately two months after the accident a surgical fusion of the knee was performed on plaintiff. Plaintiff has not returned to work since the surgery.

Following surgery, plaintiff requested workmen’s compensation benefits from his employer. Upon rejection of his claim, plaintiff instituted this action.

On appeal, appellant makes several assignments of error. Appellant contends the trial judge erred (1) in finding plaintiff’s disability was caused by a work-related accident, (2) in finding plaintiff totally and permanently disabled, (3) in finding defendants liable for penalties and attorney’s fees, and (4) in awarding excessive attorney’s fees. As noted above, the plaintiff seeks an increase in the attorney fees.

WAS PLAINTIFF’S DISABILITY CAUSED BY A WORK-RELATED ACCIDENT?

The medical testimony established that plaintiff as a result of the knee fusion cannot return to his former employment. The issue presented is whether plaintiff’s disability was caused by a work-related accident.

In his written reasons for judgment, the trial judge found that plaintiff sustained an injury by falling from a ladder at work. The judge also found that this trauma caused the flareup of the dormant osteo-myelitis condition which required the knee fusion surgery. Plaintiff testified that he fell from a ladder, striking and injuring his left knee. Plaintiff underwent knee surgery within two months of the accident.

A substantial question is posed as to whether plaintiff actually did suffer an accident, and if he did, whether it played any part in causing plaintiff to undergo the knee fusion. The defendant employer and his son, who was plaintiff’s foreman, gave testimony contrary to that of plaintiff and of Malcolm Tarver, another employee who was on the job where plaintiff alleges he was hurt. The trial court’s conclusions indicate that he accepted the testimony of plaintiff and Malcolm Tarver over that of defendant and his son. As this is a credibility evaluation in which there is no evidence in the record to establish that the trial court was clearly wrong, it must be affirmed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Dr. V. L. Davidson did not do the surgical procedure but testified that it was necessary to perform the surgical fusion on plaintiff because a pre-existing degenerative knee condition had been aggravated. Dr. Davidson was of the opinion that it was very probable that trauma had caused the aggravation. Dr. Ray J. Beurlot, Jr., a private practitioner in orthopaedics, was of a similar opinion.

Defendants presented no evidence of any other trauma which could have aggravated the condition. Under these facts, we cannot say that the trial judge committed manifest error in finding that plaintiff’s disability was caused by a work-related accident.

Appellant complains of the failure of the plaintiff to call the physician who actually did the fusion surgery, Dr. W. R. Eroche. Plaintiff had a long history of knee troubles and had undergone previous knee surgery. Appellant’s contention is that plaintiff’s problem necessitating the knee surgery was one resulting from gradual deterioration of the knee joint. Appellant argues that only by calling Dr. Eroche could it be shown that trauma had brought on the condition rather than deterioration. Appellant urges, therefore, that we must draw an inference adverse to plaintiff on the issue of causation under Vidrine v. Sentry Indemnity Company, 341 So.2d 558 (La.App. 3rd Cir. 1976), writ refused 343 So.2d 202 (La.1977).

In Vidrine this court stated that “the rule of evidence is that when the plaintiff is unable to provide a sufficient explanation as to why a treating physician’s testimony is not introduced, it is presumed that such testimony would be adverse to plaintiff’s cause.” The court referred to McCauley v. LaFleur, 213 So.2d 176 (La.App. 3rd Cir. 1968) and the cases cited therein. This presumption, however, is a rebuttable one. Bailey v. St. Paul Fire & Marine Insurance Company, 268 So.2d 697 (La.App. 1st Cir. 1972), writ refused, 270 So.2d 873 (La.1973). The circumstances ,of the Vidrine case are distinguishable from those here. Plaintiff’s knee surgery was done at the Veterans Administration Hospital in Alexandria, Louisiana. Dr. Eroche was a member of the staff of that hospital at the time he treated plaintiff and performed the operation. At the time of trial, he was no longer at that hospital. If Dr. Eroche was available to plaintiff, he was equally available to defendant. Under such circumstances this court has held that the presumption of Vidrine in inapplicable. Slocum v. American Casualty Insurance Company, 189 So.2d 299 (La.App. 3rd Cir. 1966) and Ellis v. Coleman, 309 So.2d 716 (La.App. 4th Cir. 1975). In this case we find no reason to apply an adverse presumption because of plaintiff’s failure to produce testimony by Dr. Eroche.

IS PLAINTIFF TOTALLY AND PERMANENTLY DISABLED?

The appellant contends that the trial judge erred in finding plaintiff totally and permanently disabled.

Under the Louisiana Workmen’s Compensation Law, a claimant is totally disabled only if a work-related injury produces total disability of the claimant to engage in any gainful occupation. LSA-R.S. 23:1221. Medical testimony established that plaintiff could not return to his former employment as a painter or engage in any employment requiring excessive climbing, moving, or kneeling.

Although plaintiff cannot again work as a painter, both Dr. Davidson and Dr. Beur-lot were of the opinion that plaintiff could do work which did not involve such activities and bodily functions. Dr. Beurlot did not elaborate on this question. Dr. Davidson, when pressed on the matter, gave the following testimony on transcript page 96:

“Q. All right. Do you feel like he can compete with a whole man in any job market?
BY MR. SPENCE: Your Honor, I object to that question. It’s outside the scope of qualifications of Dr. Davidson.
BY MR. FORD: Okay.
BY THE COURT: I’d be inclined to let him answer that. He obviously has not established an expertise in the safety/maintenance field or anything like that, but he’s entitled to give some opinion. You may answer, Dr. Davidson.
A. I think he probably ... in some job ... in some job markets I think he could be considered competitive. But these would be menial type jobs. Things like one of the fellows who sits and collects money at a service station where it’s a self-service station and everybody pumps their own gas. That sort of thing.
BY MR. FORD:
Q. All right. Would he be at a disadvantage in competing for any job which required any mobility at all?
A. Yes, sir, I think he would.”

Despite this medical testimony the trial court found that plaintiff was not only totally and permanently disabled as a painter, but was also disabled from performing any type of gainful employment “within the purview of his capabilities”. This holding was evidently not based upon considerations of pain as the medical testimony does not establish that working would cause pain. On the other hand, the evidence does establish that sitting at work would present something of a problem and probably cause discomfiture.

The issue presented by these facts is whether or not plaintiff is totally and permanently disabled or partially disabled under the 1975 amendments to LSA-R.S. 23:1221. The 1975 statutory revision of these concepts has been considered by this court and other circuits in a number of contexts. Among the cases which might be cited are LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977), writ denied, 351 So.2d 174 (La.1977); Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir. 1978), writ denied, 358 So.2d 645 (La.1978); Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3rd Cir. 1977), writ denied, 353 So.2d 1048 (La.1978); J. D. Armstrong v. Gulf States Fishing and Rental Tools, Inc., 338 So.2d 779 (La.App. 4th Cir. 1976), writ denied, 341 So.2d 894 (La.1977); Cullivan v. Fish Engineering and Construction Company, Inc., 354 So.2d 597 (La.App. 3rd Cir. 1977), writ not considered, 351 So.2d 254 (La.1978); Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3rd Cir. 1978), writ denied, 362 So.2d 1119 (La.1978); Turner v. American Mutual Insurance Companies, 375 So.2d 113 (La.App. 3rd Cir. 1979), writ granted, 376 So.2d 1271 (La.1979); Mayes v. Louisiana-Pacific Corporation, 379 So.2d 46 (La.App. 3rd Cir. 1979), writ denied, 381 So.2d 1232 (La.1980), and Goodwin v. Stathes, 381 So.2d 1327 (La.App. 4th Cir. 1980).

The problems with which we are faced are pointed up by the Cullivan, Ashworth, Turner and Goodwin cases. Here we are limited to the testimony of the physicians who testified, both of whom expressed the opinion that plaintiff can do some kind of work. At the same time, it is quite clear that plaintiff is extremely handicapped physically. Dr. Davidson indicates that the kind of employment open to plaintiff is quite limited. The record reveals little about plaintiff other than that he was fifty-one years old at the time of trial, has the equivalent of a high school diploma, has been a painter since 1948 and has no other training or skill. As an adult Rushing has limited his work to painting.

Manifestly the trial court concluded, despite the two physicians’ testimony, that plaintiff was not actually capable of engaging in any gainful occupation for wages. Under the circumstances the trial court evidently concluded that the medical testimony did not realistically appraise the plaintiff’s physical ability to perform work for which there might be opportunity for employment. Such a decision might well rest on the fact that legal disability to engage in any gainful work and disability from a medical perspective are not necessarily the same. In view of plaintiff’s obviously limited physical capabilities, we cannot say that the trial court was clearly wrong in finding plaintiff totally and permanently disabled and entitled to compensation benefits under LSA-R.S. 23:1221(2). Cf. Fazande v. Continental Grain Company, 363 So.2d 1253 (La.App. 4th Cir. 1978). Consequently, the trial court’s holding in this regard will be affirmed.

PENALTY’S AND ATTORNEY’S FEES

The trial court awarded plaintiff statutory penalties and attorney’s fees in the amount of $2,500. The defendant-appellant insurer assigns as error on this appeal the awarding of any attorney’s fees, and alternatively, complains that the amount is excessive.

Plaintiff answered this appeal asking for an increase to $5,000.

Before this court, the appellant contends that where there is a genuine dispute as to the occurrence of an accident or the causal relationship between the accident and disability, the insurer is not arbitrary in requiring a judicial determination of the claimant’s entitlement to compensation.

The appellant does not complain of the award of penalties and attorney’s fees on the ground that there was an issue as to whether plaintiff was totally or partially disabled. Moreover, where a claimant is at least partially disabled, an employer is liable for penalties and attorney’s fees in failing to commence compensation payments. Fazande v. Continental Grain Company, supra, and Melerine v. Brown & Root Inc., 284 So.2d 809 (La.App. 4th Cir. 1973).

As recently stated in Henley v. F. G. Sullivan, Jr., Contractor, 385 So.2d 497 (La.App. 1st Cir. 1980):

“L.S.A.-R.S. 22:658 provides that a 12% penalty and attorney fees may be imposed only when failure to pay is ‘arbitrary, capricious, or without probable cause.’ This statute being penal in nature must be strictly construed and the burden is on the claimant to prove that failure to pay was arbitrary, capricious or without probable cause. Gauthier v. Employers National Insurance Co., 316 So.2d 769 (La.App. 1st Cir. 1975).”

The evidence is in hopeless confusion as to when the employer, John L. Pleasant, Sr., was first notified that plaintiff was making a claim for workmen’s compensation. Admissions by plaintiff himself clearly show that he led his employer to believe that his injury was of no consequence and that he did not contemplate making a claim for compensation. See particularly Transcript pages 112 through 117. Plaintiff admitted that he had never at any time notified Pleasant that he had what he considered to be a workmen’s compensation claim. Tr. 117. He also testified that he never advised Pleasant that he needed medical attention for his knee prior to the time he was hospitalized in the Veterans Administration Hospital. Tr. 117. Plaintiff claims he telephoned Pleasant from the hospital but admits that he had no purpose in calling him other than that he wanted Pleasant to know he was in the hospital. Tr. 116. Pleasant denies that plaintiff called from the hospital. Tr. 148. Although plaintiff admittedly did not think much of his injury initially (Tr. 114) and he clearly did not make a claim at an early date, John L. Pleasant, Sr. notified the appellant insurer within five days of the accident that plaintiff claimed to have had an accident. Tr. 38. We are inclined to believe plaintiff did not further press the matter until his attorney asserted a claim on his behalf.

Irrespective of the lack of any notice or demand by plaintiff personally, formal demand was made on John L. Pleasant, Sr. by letter from plaintiff’s counsel dated August 3, 1978, and received by Pleasant several days later. Plaintiff’s suit was filed on January 18, 1979, against Pleasant and his insurer, the appellant here. The hospital records pertaining to plaintiff from the V. A. Hospital were supplied to defendants on January 26, 1979, and further demand by letter from plaintiff’s counsel was sent on February 13, 1979.

No compensation or other benefits have ever been paid by defendants.

In essence appellant relies on the principles that the existence of a serious issue of fact will justify refusal to pay compensation benefits and that employers and their insurers are not to be penalized for taking their case to court for judicial resolution of a close factual question. Thompson v. Natchitoches Parish Hospital Service Dist., 335 So.2d 81 (La.App. 3rd Cir. 1976), writ denied, 338 So.2d 298 (La.1976); Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974).

Although the trial court found for the plaintiff on both of the factual issues raised by the appellant which are urged as justification for refusal to pay compensation to plaintiff, we view these two issues as having given defendants probable cause for denying compensation. The trial court’s finding of the occurrence of accident on the job is based largely on plaintiff’s own testimony. In addition, the testimony of plaintiff’s co-worker Tarver shows the accident was reported to him shortly after it occurred and that Tarver saw the plaintiff’s knee that night and noted evidence of injury to the knee. While it is well established that a plaintiff may establish the occurrence of an accident by his own testimony, there was a very serious credibility issue to be resolved by the court. Moreover, plaintiff’s own admission at the trial discloses that even as of the date of his hospitalization he was not pressing a claim for compensation and that early after the accident he did not view his injury as significant. Plaintiff also led his employer to believe he was not making a compensation claim.

With respect to the causation question the conclusion of the trial judge that there was causation must rest upon the testimony of Rushing’s physicians to the effect that trauma to the knee sustained in falling from a ladder could have aggravated Rushing’s pre-existing condition. While this is legally sufficient to permit a finding of causation, there is no way of relating the necessity of the knee fusion directly to the accident. The issue is a serious one and is sufficient in our opinion to constitute probable cause to withhold payment of compensation and to absolve defendants from the charge that they were arbitrary and capricious in doing so.

For these reasons we hold that the imposition of penalties and award of attorney’s fees was not appropriate. Accordingly, we affirm the judgment of the trial court in all respects except for the award of penalties and attorney’s fees. The judgment of the trial court is reversed in that regard and penalties and attorney’s fees are denied.

AFFIRMED IN PART AND REVERSED IN PART.

STOKER, J., concurs in the result and assigns written reasons.

STOKER, Judge,

concurring.

Although I authored the principal opinion in this case, I would favor a remand for evidence on plaintiff’s employment capabilities and possibilities. This is the same position taken by Judge Watson (now Justice Watson of the Louisiana Supreme Court) in Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3rd Cir. 1978), writ denied, 362 So.2d 1119 (La.1978).

In my opinion we are faced in this case with a problem pointed up by the Cullivan, Ashworth, Turner and Goodwin cases cited in the principal opinion. Here we are limited to the testimony of the two physicians who testified, both of whom expressed the opinion that plaintiff can do some kind of work. At the same time, it is quite clear that plaintiff is extremely handicapped physically. Dr. Davidson indicates that the kind of employment open to plaintiff is quite limited. The record reveals little about plaintiff other than that he was fifty-one years old at the time of trial, has the equivalent of a high school diploma, has been a painter since 1948 and has no other training or skill. As an adult Rushing has limited his work to painting.

In assuming, as the trial court did, that plaintiff cannot engage in any gainful occupation for wages it may be, perhaps, that we are being unfair to defendant-appellant. By the same token, it would be unfair to plaintiff to assume that he can earn meaningful wages because of the bare assertions of the medical experts in this case. We really know little about plaintiff’s present capacities and less about job opportunities which might be open to him considering whatever capacities he may have. In this respect, I consider the record to be incomplete. The Cullivan, Turner, and Goodwin cases cited in the principal opinion indicate the kind of evidence appropriate in such cases.

In Ashworth v. Elton Pickering, Inc., supra, the plurality of three judges was concerned by factors of realistic earning capacity, the worker’s real capabilities and economic opportunity in which to exploit them. Two judges dissented on the ground the medical evidence was alone sufficient to require a holding that the injured worker, Ashworth, was only partially disabled. Judge Watson concurred in the result with the statement that he “would favor a remand for evidence on plaintiffs employment capabilities and possibilities.”

While I would regret the delay and additional expense which the litigants would be required to undergo, I feel that a remand in this case would be more appropriate. Although this is a workmen’s compensation case in which certain liberal rules apply, the plaintiff still has the burden of proof to show what he claims by a preponderance of evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Where plaintiff claims he is totally and permanently disabled, his burden of proof includes a showing by a preponderance of evidence that he is in fact disabled from engaging in any gainful occupation for wages. In a given case, if plaintiff should establish a prima facie case on this point, then it is up to the defendant to adduce countervailing evidence. Dusang v. Henry C. Beck Builders, Inc., et al., 389 So.2d 367 (La.1980).

The Cullivan, Turner and Goodwin cases illustrate the kind of evidence which may be brought to bear upon the issues involved here. I believe that such considerations should be made in order to give effective force to the 1975 legislative redefinitions of total and permanent disability and partial disability. The considerations underlying and involved in such issues as are before us are extensively treated by Malone and Johnson in Volume 13 of the Louisiana Civil Law Treatise entitled Worker’s Compensation Law and Practice, Second Edition, 1980, beginning at Section 276 at page 619. I feel these references would suffice to guide counsel and the trial court in the considerations which they would be engaged in on a remand. While such considerations call upon the ingenuity of counsel and theirs is the primary responsibility for producing whatever evidence might be appropriate, in circumstances such as are presented in this case the trial court itself could call its own experts if it felt such expert testimony was appropriate and needed. LSA-C.C.P. art. 192.

In essence what I am suggesting is that in a case such as the one before us, evidence should be brought forth upon which the trier of fact can make the kind of considerations suggested by Malone and Johnson. In Dusang v. Henry C. Beck Builders, Inc., et al., supra, the Louisiana Supreme Court referred to the “odd lot” doctrine recommended by Malone and Johnson. The Supreme Court stated that, while it had not adopted the “odd lot” doctrine explicitly, elements of the doctrine have appeared in certain of its opinion’s decisions. The Supreme Court then proceeded to apply the “odd lot” concept in Dusang, a case which involved substantial pain.

For the foregoing reasons it would be my preference to remand this case for the taking of further evidence on the issues of plaintiff’s employment capabilities and reasonable possibilities for employment in work for which he might be qualified.

      . Act No. 583 of the Louisiana Legislature of 1975.

      . A significant difference between LSA-R.S. 23:1221(2), total disability, and LSA-R.S. 1221(3), partial disability, is that in case of the total disability the disabled employee is paid compensation “during the period of such disability,” whereas in the case of partial disability the employee is paid for a maximum number of weeks only. For accidents occurring after September 1, 1977, the maximum is 450 weeks. Where partial disability compensation is awarded and the employee actually earns a wage during his disability, the wages actually earned are taken into account as provided in LSA-R.S. 23:1221(3).

      . In Dusang v. Henry C. Beck Builders, Inc., et al., supra, the Supreme Court summarized the “odd lot” doctrine as proposed by Malone and Johnson as follows:
      “Under this doctrine a claimant is considered totally disabled if his injury makes him an ‘odd lot’ in the labor market-in other words, if he can hold various jobs periodically, but the kind of work he can do is so limited that a reasonably stable market for it does not exist. An ‘odd lot’ claimant need not be absolutely helpless to qualify for total disability status. If the claimant can prove that his physical condition, his mental capacity, his education, training, age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the ‘odd lot’ category. The employer or insurer must then show that some form of suitable work is regularly and continuously available to the claimant in the area where he resides.”


author: SAMUEL, Judge. REDMANN, Judge,

text:
    Kevin Roy SCALES v. STATE of La., State of La., Dept. of Hwys., ABC Architectural Firm and Engineers A & B.
    No. 11292.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.
    Writ Granted Feb. 6, 1981.
    Silvestri, Marinaro, Massicot & Davis, John P. Massicot, New Orleans, for Kevin Roy Scales, plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, Raymond G. Jones, New Orleans, for Pepper & Associates, Inc., defendant-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

This is a devolutive appeal from a judgment maintaining an exception of prescription and dismissing plaintiff’s suit against the appellee, Pepper and Associates, Inc. The matter is now before us solely on our ex proprio motu rule to show cause why the appeal should not be dismissed.

The judgment appealed from was signed by the trial judge on January 17, 1980. Appellant timely filed a motion of appeal, but the trial judge did not sign the order of appeal until after the expiration of the delay for taking the appeal as provided by Article 2087 of the Code of Civil Procedure. The question presented is whether the appeal should be dismissed because the order was not signed timely.

Appellant argues he filed his appeal timely, and he should not be penalized because the clerk did not present the motion and order to the trial judge for signature until after the expiration of appeal delay. We understand the practice in this trial court is for the clerk to present such orders to the trial judge accompanied by the pertinent record, and in this proceeding the record was not available because another appeal was pending in the same case.

Code of Civil Procedure Article 2161 provides:

“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant.” (emphasis ours). LSA-C.C.P. Art. 2161.

This court previously has stated an appeal must be dismissed when the appellant’s order of appeal was signed by the trial judge after the delay for taking an appeal had expired. The basis for this was that the responsibility for obtaining the necessary order of appeal and furnishing the required bond rests solely with the appellant.

In recent years the caseloads imposed upon the trial courts of this state have increased dramatically. As a consequence, trial judges have been obliged to restrict their availability in an effort to adequately keep dockets current. Counsel are no longer afforded almost unlimited access to trial judges as they once were in the past. In many courts, particularly in the trial court here, a more rigid procedure has been adopted, either formally or informally, by which counsel apparently are required to submit orders for signature through the clerk or his employees. To the extent this practice has been adopted, counsel have lost the ability, or at least most of the ability, to control the destiny of their cases.

Noting that an appeal bond is no longer required in this devolutive appeal, and specifically restricting our action to what is now before us, a devolutive appeal, we now conclude that when a motion for appeal has been timely filed with the clerk, the failure of the trial judge to sign the motion until after the delay for appeal has passed does not automatically result in a dismissal of the appeal, since such an irregularity is no longer imputable to the appellant. In so holding, anything to the contrary in the prior jurisprudence of this circuit is overruled.

In Fidelity B. & T. Co. of Slidell v. Pinewood Country Cl., the First Circuit dismissed an appeal in which the order of appeal had not been timely signed by the trial judge. Then, in the recent case of Hall v. Board of Sup’rs, Southern University, the First Circuit held that when a motion for appeal is timely filed, failure of the trial judge to sign the order of appeal within the allowed appeal delays is not an error or defect imputable to the appellant. However, in the more recent case of Traigle v. Gulf Coast Aluminum Corp., that circuit overruled Hall.

As we agree with Hall and hold contrary to Traigle, there exists a conflict between the First and Fourth Circuits, a conflict which the Supreme Court should resolve.

For the reasons assigned, our rule to show cause why the appeal should not be dismissed is recalled and vacated.

RULE TO SHOW CAUSE RECALLED AND VACATED.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

The result in Succession of Rolland, La.App. 4 Cir. 1975, 360 So.2d 213, was correct because the “appellant” had no right of appeal because she herself petitioned for the exact judgment the trial court rendered. See C.C.P. 2085; State ex rel. Moore Planting Co. v. Howell, 1916, 139 La. 336, 71 So. 529; Barbara Inc. v. Billelo, 1947, 212 La. 937, 33 So.2d 689; Salassi v. Salassi, 1952, 220 La. 785, 57 So.2d 684. See also cases holding consent judgment not appealable, such as Priestly v. Chapman, 1912, 130 La. 480, 58 So. 156; Lallande v. Jones, 1859, 14 La.Ann. 714; Brand v. Jones, 1840, 15 La. 449; Barnwell v. Harman, 1819, 6 Mart. 723.

The result in Thomas v. Berman, La.App. 4 Cir. 1975, 308 So.2d 797, was also correct under the law at that time because failure to file bond timely deprived the court of appeal of “jurisdiction.” Bond is no longer required, and Thomas does not control.

C.C.P. 2121 does provide that “[a]n appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” The correct interpretation, however, must be that only a timely filing of the motion for appeal is essential to prevent the judgment’s becoming definitive. Otherwise, a hardheaded judge could defeat an appeal by simply refusing to sign an order of appeal even when ordered to do so by the Supreme Court-which could not itself grant an order “from the court which rendered the judgment,” in the words of C.C.P. 2121. Obviously C.C.P. 2121 is simply providing a road-map, which tells the lawyer where to go to take an appeal, and if the trial judge recal-citrantly refused to sign the order an appellate court could grant the order and could grant it after the time for applying for an order had passed.

C.C.P. 5051 obliges a liberal construction of procedural rules, which it declares “are not an end in themselves.” As long as an appellant files a proper motion with a proper order, the appellant is entitled to have the trial judge sign the order as a matter of right, and if the judge does not do so it should in equity be considered as done anyway.

      . The pending appeal was from a prior summary judgment dismissing a defendant other than the appellee in this appeal,

      . Succession of Rolland, La.App., 360 So.2d 213; Thomas v. Berman, La.App., 308 So.2d 797.

      . In compliance with one of our internal rules, this action has been submitted to our entire court and a majority has approved. Boutall, J., dissents, being of the opinion the appellant must make a reasonable effort to secure a signature timely, and agreeing with Traigle v. Gulf Coast Aluminum Corp., La.App., 391 So.2d 1290.

      . La.App., 250 So.2d 577.

      . La.App., 387 So.2d 643.

      . Supra, note 3.


author: SARTAIN, Judge.

text:
    Mrs. Margaret RIVERS et al. v. MACCO, a division of Schlumberger Technology Corp. et al.
    No. 11637.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.

      Alvin G. Baham, Gretna, for plaintiffs-appellees.
    Law Offices of James J. Morse, Michael F. Grennan, New Orleans, for defendants-appellants.
    Before BOUTALL, SCHOTT and SAR-TAIN, JJ.
   SARTAIN, Judge.

The defendant-employer and its insurer appeal from a judgment of the district court which awarded workmen’s compensation death benefits to the surviving widow and minor son of Willie Rivers. We clarify the award as to death benefits, amend the same as to funeral benefits, and affirm.

The two issues presented are: (1) causal relation between decedent’s death and his employment, and (2) the scope of the award.

The deceased, Willie Rivers, had been employed by Maceo for a number of years as a sales and service representative, but had been made shop foreman a few months prior to his death. On February 17,1978 he arranged with his supervisor to deliver a load of mandurals to Macco’s Houston plant.

On the morning of February 17, 1978 the deceased, with the help of fellow workers, loaded a Maceo trailer with the mandurals and went home to pick up his wife who was to accompany him to Houston. He told her he had felt some discomfort when loading the trailer, but insisted that he felt well enough to go to Houston. Once there he unhitched the trailer and pushed it up over a curb until he could deliver it the following day. He was unable to eat dinner and later that night or early the next morning he began experiencing extreme chest pains and vomited. He eventually agreed to go to the hospital and the following day after tests in the emergency room he went into fibrillation. He was admitted to the ICU with the diagnosis of myocardial infarction. He was recovering well when he was found dead in his hospital bed on March 5, 1978. The cause of death was cardiac arrest.

The trial judge found that the death was the result of an initial myocardial infarction brought about by strenuous activity performed by Mr. Rivers on February 17,1978, while in the course of his employment. Specifically, he found that the process of the myocardial infarction actually began with the loading of the valves, that the symptoms persisted during the trip to Houston, and that the process was aggravated by pushing the trailer over the curb.

A heart attack or similar cardiovascular occurrence is an “accident” within the meaning of the definitions in R.S. 23:1021 (1), (6). If the “accident” occurs in the course of one’s routine and normal duties the act applies upon the showing of a causal relation between the employee’s injuries (death) and his employment. Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975). The plaintiff must establish this causal connection by a preponderance of the evidence. The testimony as a whole must show that more probably than not an employment “accident” occurred and that it had a causal connection to the disability (death). Prim v. City of Shreveport, 297 So.2d 421 (La.1974).

The determination of a causal relationship between a worker’s employment and death is a question of fact for the trial judge. On appellate review this factual finding should not be disturbed when there is evidence before the court which, upon its evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings unless those findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

In the instant case this court cannot conclude that the trial judge was clearly wrong in his determination of a causal relationship between Mr. Rivers’ employment and his death. Indeed, a careful review of the record reveals ample evidence to sustain the trial judge.

Initially, there is an abundance of essentially unconflicting medical evidence establishing a causal relationship between the activities performed by Mr. Rivers on February 17, 1978 and the subsequent heart attack and death. Dr. C. H. Heider, the doctor who treated Mr. Rivers when he was admitted to the hospital and supervised his treatment during the two weeks following admission, felt that the onset of the acute symptoms of myocardial infarction was related to Mr. Rivers’ activities of the previous day. He based that opinion on the autopsy record, information he obtained from Mr. Rivers concerning previous pain upon physical exertion, and information he had received from Mrs. Rivers.

Dr. Sidney Jacobs, a specialist in internal medicine with a sub-speciality in pulmonary diseases, concurred in Dr. Heider’s conclusion. He was further of the opinion that most heart attacks can be traced to just such a cause once a detailed history can be obtained.

The only contrary evidence does not detract from either Dr. Heider’s or Dr. Jacob’s testimony. Dr. John Phillips, an expert in cardiology who examined the record, felt that based on the hospital record alone the infarction was not related to activity. However, Dr. Phillips modified his opinion when asked about the effect of activities similar to those engaged in by Mr. Rivers the day prior to the heart attack. He felt, based on this additional information, that he would lean toward the conclusion that the attack was related to the previous physical activity. Thus, the record contains ample support for the trial judge’s conclusion of causation.

Further, the fact that this conclusion was ultimately based on Mrs. Rivers’ testimony does not detract from its validity. In workmen’s compensation cases the ordinary rules of evidence are relaxed and courts are not bound by rules of evidence or technical procedures. R.S. 23:1317. In view of said statutory provisions hearsay testimony is admissible in a suit for workmen’s compensation benefits within discretionary limits. Montgomery v. Delta Concrete Products, 290 So.2d 769 (La.App. 1st Cir. 1974).

Here the defendant strenuously objects to Mrs. Rivers’ testimony because it contains the uncorroborated statements of Mr. Rivers concerning his physical activities and symptoms and is further contradictory in her own recollection of events. Defendant contends that the admission of this testimony exceeds the discretionary limits of trial court. After a thorough review of the record we cannot agree. The discrepancies and inconsistencies upon which defendant relies do not bear on the substance of Mrs. Rivers’ testimony or the conclusion which can be drawn from the record as a whole.

The medical history compiled by Dr. Heider contains reference to Mr. Rivers’ comment that he had been experiencing pain upon exertion in the few months preceding his death. Dr. Jacobs noted that a myocardial infarction, particularly in cases where the patient had experienced pain upon exertion previously, rarely occurs without some precipitating event. Thus, Mrs. Rivers’ testimony about her husband’s distress when loading the truck is consistent with other evidence presented. Further, the record reflects that Mr. Rivers was a strong man in apparent good physical health. The fact that none of his coworkers observed anything unusual does not detract from Mrs. Rivers’ testimony.

The trial judge is given great discretion in matters of credibility. In the instant case the trial judge obviously believed Mrs. Rivers’ testimony was accurate and truthful. Based on the support we find in the record and considering the great discretion allowed the trial judge in credibility determinations, we find no error in the admission of or reliance upon Mrs. Rivers’ testimony.

Before reaching the award it is necessary that we dispose of the contention of the defendants that plaintiff has failed to prove the amount of decedent’s weekly wages. The judgment reflects the same to be $334.14. The record is not specific on the amount of decedent’s weekly wage as of the date of his death (March 5, 1978). There is in the record a copy of decedent’s W-2 Form for 1977 which reflects that his annual income from the defendant was $18,163.34. It is apparent from the testimony that during the course of the trial a dispute arose over the relevancy of his earnings for 1977. There is testimony in the record that decedent’s earnings in 1978 were generally the same as 1977. While the specific weekly earnings are not shown there is a statement by the defendants in their pretrial brief that they would stipulate to the fact that decedent’s average weekly earnings at the time of his death were |334.14. In order to eliminate the necessity of and the delays occasioned by a remand we find no error on the part of the trial judge in accepting the figure of $334.14.

Appellants object to the wording of the judgment insofar as the same awarded, without limitation, Mrs. Rivers and her son total compensation benefits of 46.25% of $334.14. While 46.25% of a deceased worker’s weekly wages is the scheduled benefit for a surviving widow and one child under R.S. 23:1233, this benefit is subject to the maximum limitation provided for in R.S. 23:1202. Henderson v. Travelers Ins. Co., 354 So.2d 1031, 1032 (footnote 1) (La.1978); Stubbs v. Parish of East Baton Rouge, 343 So.2d 258 (La.App. 1st Cir. 1977); 25 Loy.L. Rev. 341, 358 (1979). For a compensible disability or death occurring after September 1,1977 the maximum rate is determined by Louisiana Department of Labor, Employment Security Division. The maximum weekly benefit on the date of decedent’s death in the instant action (March 5, 1978) was $130.00. The judgment as presently worded provides benefits in excess of the maximum limitation. The judgment should be amended accordingly.

Appellants also object to the wording of the judgment which condemned them to pay for “all costs and all funeral, burial and hospital expenses.” This provision in the judgment should also be amended to reflect the $1,500.00 limitation for funeral expenses provided for in R.S. 23:1210.

With respect to the hospital expenses, it is noted that the defendant-employer provided his employees with additional hospital insurance with another insurer and without contribution on the part of said employees. 80% of the medical expenses incurred on behalf of Mr. Rivers was paid by that insurer and Mrs. Rivers paid Appellants argue that they should only be answerable to Mrs. Rivers for the 20% of these expenses paid by her. We disagree. There is no evidence in the record that the funds derived from the hospital policy was the property of the employer so as to entitle the employer and/or its worker’s compensation insurer to any credit. It is more reasonable to assume that the hospital policy was of the standard type naming the employee or his widow as the beneficiary. Under these circumstances we fail to see how the employer’s second insurer (workmen’s compensation) can claim any credit, particularly in the absence of any type of coinsurance provision in its policy or any showing that the hospital insurer is entitled to subrogation for the sums it paid to Mrs. Rivers. the remaining 20%.

Lastly, appellants contend that the expert witness fees and deposition costs are excessive. On the record before us we cannot conclude that the witness fees therein provided are excessive. As to the deposition costs, appellants may still contest the same in the trial court on a rule to fix costs.

For these reasons the judgment of the trial court is amended to limit the amount of weekly compensation benefits to Mrs. Rivers and her minor son and funeral expenses in accordance with the provisions of R.S. 23:1202 and 1210, respectively. The judgment as amended is affirmed at appellants’ costs..

AMENDED AND AFFIRMED.

      . $334.14 X 46.25% = $154.54.