author: CULPEPPER, Judge. SWIFT, Judge, DOUCET, Judge,

text:
    L. C. WEAVER, Plaintiff & Appellee, v. Jackie Roy HAILEY, et al., Defendants & Appellants.
    No. 8702.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 1982.
    Rehearing Denied July 21, 1982.

      Gahagan & Gahagan, M. F. Gahagan, Natchitoches, for plaintiff & appellee.
    Watson, Murchison, Crews & Arthur, R. Raymond Arthur, Natchitoches, for defendants & appellants.
    Before CULPEPPER, CUTRER, SWIFT, STOKER and DOUCET, JJ.
   CULPEPPER, Judge.

This is a petitory action. The plaintiff, L. C. Weaver, claims ownership by record title of one acre of land of which defendants, the Haileys, are in possession. The Haileys filed an answer alleging ownership by the acquisitive prescriptions of 30 years and 10 years of the 40 acres in which plaintiff alleges the one acre in dispute is located. But defendants prayed only that plaintiff’s demands be rejected. They did not file a reconventional demand for recognition of their ownership. The district judge recognized the Haileys as the owners of the 40 acres less and except the one acre in dispute, and he recognized the plaintiff, L. C. Weaver, as owner of the one acre. The defendants appealed.

The substantial issues are: (1) Did the plaintiff sustain his burden of proving ownership by record title to the one acre in dispute? (2) Since defendants have not prayed for recognition of their ownership by acquisitive prescription and have not filed a reconventional demand, is the issue of their ownership before us? (3) If the issue of defendants’ ownership is before us, have they proved acquisitive prescription of 10 years as to the one acre in dispute?

PLAINTIFF’S EVIDENCE

Plaintiff’s proof of his record title consists of the following:

(1) A cash sale from Robert Richard to H. L. Weaver recorded on August 27, 1946 conveying property described as “beginning at a point on the north line of SW V* of SW Vi sec. 26 Tp 12 Rg 7 on the west side of the Creston-Ashland highway and running west 35 yards thence south 70 yards thence east 35 yards to the highway thence north to point of beginning containing one-half acres more or less.”
(2) An act of correction from Robert Richard to H. L. Weaver dated and recorded in October of 1980, correcting the description of the 1946 sale to read as follows: “... beginning at a point on the North line of the Southwest Quarter of the Southwest Quarter of Section 26, Township 12 North, Range 7 West, Natchitoches Parish, Louisiana, on the West side of Cre-ston-Ashland Highway; thence run West 35 yards; thence run South 140 yards; thence run East 35 yards to said highway; thence run North 140 yards to the point of beginning.”
(3) A cash sale from Herman L. Weaver to L. C. Weaver dated October 30, 1980 and recorded on June 26, 1981 conveying the one acre as described in the October, 1980 act of correction.

L. C. Weaver testified that immediately after his brother, H. L. Weaver, purchased the property in 1946, they organized a club, apparently for the purpose of hunting and fishing on nearby Black Lake, and they built a small club house on the one acre. In 1949 they sold the building and it was moved from the land.

L. C. Weaver also testified that when Mr. E. D. Mallett, defendants’ author in title, built the fence around Mallett’s property in 1952, the fence included the one acre on which the club house had been located. Weaver admitted that the fence built by Mallett in 1952 was maintained by the Hai-leys after they purchased their property from Mallett in 1953, and that the fence is still on the same lines.

Herman L. Weaver, who originally purchased the one acre from Robert Richard in 1946, testified that he left the State of Louisiana during the 1950s and returned during the 1960s, at which time he talked to Mr. and Mrs. Lee Roy Hailey about their fence enclosing his one acre. He says he went to see Mrs. Lena Hailey again in 1979 and asked her to move the fence, since it had been there almost 30 years. In 1980, they obtained from Robert Richard the correction deed described above, and Herman sold the property to his brother, L. C. Weaver.

L. C. Weaver testified that during the latter part of 1980 he and Jackie Roy Hai-ley discussed a lease of the one acre by Weaver to Hailey. Weaver had his attorney draw a written lease, but Hailey, on the advice of his attorney, refused to sign. Jackie Roy Hailey’s version of this lease incident is that when he was clearing his land to plant Christmas trees during 1980, he learned that the Weavers were claiming one acre, although he didn’t know the location of the one acre, and he decided to try to lease it. However, he was later advised by his attorney not to sign a lease.

DEFENDANTS’ EVIDENCE

The defendants have abandoned their claim by the acquisitive prescription of 30 years. They claim ownership by the acquisitive prescription of 10 years based on a sale from Elvin Dale Mallett to Lee Roy Hailey and his wife, Lena V. Hailey, dated April 1, 1953 and recorded on April 23,1953, conveying the following described property:

“Southwest Quarter of the Southwest Quarter of Section 26, Township 12 North, Range 7 West, less one acre, being 39 acres more or less in Ward 2, Natchi-toches Parish, La. with all improvements thereon, including house furnishings and 17 goats;”

In February of 1952, Mr. E. D. Mallett employed Lynn Boyd Weaver to “run the lines” of the SW/4 of the SW/4 of said Section 26. Lynn Boyd Weaver was not a surveyor, but he had experience running lines for lumber companies. He testified that on February 29, 1952 he blazed the lines of the approximately 40 acres. At the trial, Weaver identified a sketch of his field notes, filed in evidence, purporting to show the lines he blazed around the 40 acres. He said he ran the lines from corners marked by iron pipes placed there by a licensed surveyor. During his testimony, Weaver drew on the sketch his estimate of the location of the Ashland-Creston highway, running generally across the north and the east lines of the 40 acres, so as to place approximately 7 acres east of the highway and 32 acres west of the highway. Weaver also said that Mallett did not tell him to exclude one acre, and that he knew nothing about the location of the one acre, so he did not show it in his field notes.

Lynn Weaver also testified that during 1952 Mr. E. D. Mallett built a fence on the lines which he had blazed. Other evidence in the record shows that actually only the 32 acres west of the highway were fenced by Mallett in 1952. The 7 acres east of the highway were not fenced.

Mrs. Lena Hailey Thompson testified that she was married to Lee Roy Hailey when they bought 39 acres from E. D. Mallett in 1953. She stated that at the time of the purchase neither she nor her husband knew that their deed excepted one acre, that before they bought the land Mr. Mallett showed them on the ground the location of the fence around the 32 acres west of the highway and showed them the unfenced 7 acres on the east side of the highway, and stated to them that was the property they were buying. She testified she did not learn until “a year or so” after they purchased the land that H. L. Weaver claimed one acre.

The evidence shows that immediately after Lee Roy Hailey and his wife purchased the land from Mallett in 1953 they moved into the home on the 32 acres and Mrs. Lena Hailey Thompson and her children, defendants in the present suit, have lived there and maintained the fence around the 32 acres ever since.

The evidence also shows that a judgment of recognition and possession in the Succession of Lee Roy Hailey, dated March 25, 1974, recognizes Lena Viola Hailey as the surviving spouse in community, and Jackie Roy Hailey, Raymond Terry Hailey, Mark Lavelle Hailey and Ruth Ann Hailey as the only children of Lee Roy Hailey, deceased, and places them in possession of the property as described in the 1953 deed from Mal-lett. The defendants in the present suit are Jackie Roy Hailey, Ruth Ann Hailey and Lena Viola Hailey, who apparently purchased the interests of Raymond Terry Hai-ley and Mark Lavelle Hailey.

DID PLAINTIFF PROVE OWNERSHIP?

The first issue is whether the plaintiff in this petitory action against defendants in possession sustained his burden of proving ownership by record title. This is the first case to reach the appellate courts since the adoption, effective January 1, 1980, of the following articles of our Civil Code on PROTECTION OF OWNERSHIP:

“Art. 531. Proof of ownership of immovable
One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.
(Acts 1979, No. 180, § 1, eff. Jan. 1,1980.)
Comments
(a) One who claims the ownership of an immovable adversely to another in possession has the burden of proof of his claim. When the defendant is in possession of the immovable property, the plaintiff discharges this burden by proving that he has acquired the ownership of the immovable he claims. When the defendant is not in possession, the plaintiff discharges this burden by proving that he has a better title than the defendant. The defendant is in possession when he and his ancestors in title have had corporeal possession for at least one year or civil possession for the same period of time preceded by corporeal possession. See Yiannopou-los, Civil Law Property § 133 (1966).
(b) Article 3653(1) of the Louisiana Code of Civil Procedure declares that the plaintiff in the petitory action, in order to recover, “must make out his title”. The word “title” in this article means ownership. A plaintiff in a peti-tory action thus makes out his title when he proves his ownership of the immovable. Ownership of immovable property may be acquired by an unbroken chain of transfers from a previous owner or by acquisitive prescription. See Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974); Tenneco Oil Co. v. Houston, 364 So. 1056 (La.App. 2d Cir. 1978). In a sense, proof of acquisition of ownership in one of these manners establishes ‘a title good against the world’.”

“Art. 532. Common author

When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

(Acts 1979, No. 180, § 1, eff. Jan. 1,1980.)

Comments

(a) The text of Article 3653 of the Louisiana Code of Civil Procedure seems to indicate that when defendant is in possession the plaintiff may not recover upon proof of a more ancient title from a common author because this is not proof of ownership but merely proof of a better title. See Maraist, The Work of the Louisiana Appellate Courts for the 1974-1975 Term, 36 La. L.Rev. 572 (1976); Tenneco Oil Co. v. Houston, 364 So.2d 1055 (La.App. 2d Cir. 1978). Nevertheless, certain courts relying on the comment accompanying Article 3653 of the Louisiana Code of Civil Procedure and the intent of the redactors not to change the prior law, have held that a plaintiff in a petitory action is entitled to judgment recognizing his ownership against a defendant in possession upon proof of a more ancient title from a common ancestor.

Article 532 follows this line of jurisprudence. It declares that when the titles of the parties are traced to a common author, he is presumed to be the previous owner. Accordingly, plaintiff may recover against another in possession upon proof that his title is the more ancient from the common ancestor. Of course, the judgment is not res judicata as to third persons.”

LSA-C.C.P. article 3653(1), referred to in Comment (b) under Civil Code article 531 above, was amended by Act No. 256 of 1981 as follows:

“Art. 3653. Same; proof of title; Immovable
To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
When the titles of the parties are traced to a common author, he is presumed to be the previous owner. Amended by Acts 1981, No. 256, § 1.
Comment
The 1981 amendment to this Article does two things: (1) It adds the word “therein” after “real right”. See Comment (c) under Art. 3651, supra. (2) It brings the procedural law, relative to proof of ownership of immovables, in line with the substantive law contained in Civil Code Articles 531 and 532.”

Before the 1979 amendments to the Civil Code and the 1981 amendment to the Code of Civil Procedure, as set out above, it is clear the controlling jurisprudential rule was that stated in Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974), i.e., that the plaintiff in a petitory action against a defendant in possession must prove ownership good against the world regardless of defendant’s lack of title. Under that rule, the plaintiff in the present case has not sustained his burden of proving title good against the world. He has deraigned his title only back to the 1946 sale from Robert Richard to H. L. Weaver. He has not deraigned his title back to the sovereign, nor has he proved title back to a common author, nor has he proved ownership by acquisitive prescription.

The only question is whether the legislature intended to overrule Pure Oil v. Skinner, supra, when it adopted Civil Code articles 531 and 532 in 1979 and amended Code of Civil Procedure article 3653(1) in 1981. We have no difficulty in concluding that the legislature did not intend to overrule Pure Oil Company v. Skinner.

An understanding of the legislative intent in making these changes begins with the difference between the words “ownership” and “title.” Ownership is defined in the Civil Code as follows:

“Art. 477. Ownership; content
Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.
(Acts 1979, No. 180, § 1, eff. Jan. 1,1980.)
Comments
(a) This provision is based on Articles 488 and 491 of the Louisiana Civil Code of 1870. It does not change the law.”

The word “title” is not defined in our Codes. It is used in different senses. A. N. Yiannopoulos, Louisiana Civil Law Treatise, Vol. 2, Property, 2d Ed., Section 192, at page 518 discusses C.C. article 531 as revised in 1979 and explains the different uses of the word “title”:

“The first sentence of Article 531 of the Louisiana Civil Code has the same meaning as Article 3653(1) of the Louisiana Code of Civil Procedure which declares that the plaintiff in the petitory action, in order to recover, must “make out his title”,110 if the court finds that the defendant is in possession of the immovable property or of the real right. The word “title” is used in Louisiana legislation and jurisprudence in at least three different senses. It may mean an act translative of ownership, such as a sale, donation, or exchange;111 it may mean an instrument evidencing ownership or another real right, such as a partition or a judgment; 112 or it may simply mean ownership of a thing or a valid claim to a real right other than ownership.113 Thus, an act of sale or an act establishing a predial servitude is a title; a judgment recognizing one’s ownership or other real right is likewise a title; and the owner of a thing or a person entitled to a real right has title to the thing or to the real right. It is apparent that the word “title” in Article 3653(1) of the Louisiana Code of Civil Procedure means ownership or a valid claim to a real right other than ownership. A plaintiff in a petitory action thus “makes out his title” when he proves his ownership of the immovable property or that he is entitled to the real right he claims.114”

In footnote 111, Prof. Yiannopoulos cites Louisiana Civil Code article 495 of 1870 as an example of the use of the word “title” to mean an act translative of ownership, such as a sale, donation or exchange. The text of article 495 makes it clear that “title” as used there is not the same as “ownership.”

“Art. 495. He who has once acquired the ownership of a thing by one title, cannot afterwards acquire it by another title, unless it be to supply a deficiency in the first title.
On the other hand, nothing prevents a thing due to a person, under one title, from being also due to him under another; as for example, when a thing has been sold, and is afterwards bequeathed to the same person by the owner. (As amended by Acts 1871, No. 87)
CC-852.”

In 1974, the Louisiana Supreme Court in Pure Oil Company v. Skinner, supra, decided that the word “title” in C.C.P. article 3653(1) meant “ownership.” The court held that the plaintiff in a petitory action against a defendant in possession was required to prove a perfect record title back to the sovereign, since he had not proved ownership by acquisitive prescription. No common author was involved. The only missing link in the plaintiff’s record title was between the years 1858 and 1874. Chief Justice Summers wrote a strong dissent, joined by Justice Marcus, in which he took the position that the redactors of the Code of Civil Procedure of 1960, and in particular Henry G. McMahon, did not intend the word “title” to mean “ownership.” Nevertheless, the majority in Pure Oil v. Skinner held to the contrary.

Following Pure Oil Company v. Skinner, supra, a question arose in the Courts of Appeal as to whether the common author rule was still viable. Clayton v. Langston, 311 So.2d 74 (La.App. 3rd Cir. 1975) held that where both plaintiff and defendant in a petitory action traced their record titles to a common ancestor, this satisfied the Pure Oil v. Skinner requirement of proof of title “good against the world.” Tenneco Oil Company v. Houston, 372 So.2d 1194 (La.App. 2d Cir. 1979), affirmed on other grounds, 372 So.2d 1194 (La.1979), held to the contrary that proof of title back to a common author did not satisfy Pure Oil Company v. Skinner. It became clear that legislation was needed to solve the common author problem, and to make it clear that the word “title” in LSA-C.C. article 3653(1) actually meant “ownership.”

From this explanation, it is clear that when the legislature adopted in 1979 Civil Code article 531, requiring that the plaintiff in a petitory action against a defendant in possession must prove that he has acquired “ownership from a previous owner,” it intended to retain the rule in Pure Oil Company v. Skinner, not overrule it. The intent was to require that such a plaintiff prove he had acquired “ownership from a previous owner,”, i.e., an owner who had a perfect record title back to the sovereign, or ownership by acquisitive prescription. Article 532 solved the common author problem, by stating that “when the titles of the parties are traced to a common author, he is presumed to be the previous owner.”

If there was any doubt as to the legislative intent in adopting articles 531 and 532 in 1979, such doubt was put to rest when the legislature followed by adopting in 1981 the amendment to Code of Civil Procedure article 3653(1), which removed the troublesome clause “make out his title,” and inserted instead the provision that the plaintiff must “prove that he has acquired ownership from a previous owner or by acquisitive prescription.” This amendment to the Code of Civil Procedure was necessary to conform to the new Civil Code articles 531 and 532.

Our conclusion as to the intent of the legislature is supported by A. N. Yiannopoulos, Louisiana Civil Law Treatise, Vol. 2, Property, 2d Ed., Section 192 at page 517:

“Defendant in possession; proof of ownership. Article 531 of the Louisiana Civil Code, as revised in 1979, declares: “One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.” 106 This provision is new but does not change the law. It is directly applicable to claims of ownership of immova-bles, and, by analogy, to claims of other real rights in immovable property.
Ownership of immovable property may be acquired either by an unbroken chain of transfers from a previous owner or by acquisitive prescription of ten or thirty years.107 A real right other than ownership may be acquired by virtue of a grant from the owner of the immovable burdened by the right, by a valid chain of transfers from a person who acquired such a real right, or by acquisitive prescription.108 In a sense, proof of acquisition of ownership or other real right in one of these manners establishes a title good against the world.109”

Also supporting our view is the Comment, 55 Tul.L.Rev. 192 (1980).

We are aware that the Comments under Civil Code articles 531 and 532, adopted in 1979, did not appear in Act No. 180 of 1979, are not part of the articles, and were added pursuant to the joint rules of the senate and house of representatives. Nevertheless, we find these comments correctly imply the intent of the legislature was to retain the rule in Pure Oil Company v. Skinner, supra, not to legislatively overrule it.

Having reached this conclusion, it is clear that in the present case the plaintiff has not sustained his burden of proving ownership.

DEFENDANTS’ FAILURE TO PRAY OR FILE A RECONVENTIONAL DEMAND FOR RECOGNITION OF OWNERSHIP

As stated above, the defendants filed an answer alleging ownership by 10 years acquisitive prescription, but they prayed only that plaintiff’s suit be dismissed. Moreover, they did not file a re-conventional demand. There is a procedural problem as to whether we can recognize defendants’ ownership, even if they have proved it. In Clayton v. Langston, 311 So.2d 74 (La.App. 3rd Cir. 1975), we decided in a similar case that under LSA-C.C.P. article 862 we could render judgment granting “the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contained no prayer for general and equitable relief.” Under the authority of Clayton v. Langston, we could render judgment in the present case recognizing defendants’ ownership of the one acre in dispute if they have proved it.

DEFENDANTS’ PROOF OF OWNERSHIP BY TEN YEARS ACQUISITIVE PRESCRIPTION

LSA-C.C. article 3479 provides that a party claiming ownership by the acquisitive prescription of 10 years must prove four conditions:

Art. 3479. To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
1. Good faith on the part of the possessor.
2. A title which shall be legal, and sufficient to transfer the property.
3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
4. And finally an object which may be acquired by prescription.”

In the present case the defendants were in the required good faith. Mr. and Mrs. Lee Roy Hailey believed they were acquiring ownership of the property described in their deed from Mallett in 1953. Since they were in good faith at the time of their purchase of the property, it is of no consequence that they subsequently learned H. L. Weaver claimed one acre. Bishop Homes, Inc. v. Devall, 336 So.2d 313 (La.App. 1st Cir. 1976).

There is a serious question as to whether condition # 2 of article 3479 is satisfied. The title, i.e., the act of sale, by which Mr. and Mrs. Lee Roy Hailey acquired in 1953 describes the property as the “SW/4 of the SW/4 of Section 26, Township 12 North, Range 7 West, less one acre, being 39 acres, more or less.” The question is whether the act of sale transfers the one acre excepted. The trial judge reasoned that since Mr. Lynn Weaver testified the SW/4 of the SW/4 of said Section 26 is a regular section containing approximately 40 acres, the sale of the 40 acres “less one acre, being 39 acres, more or less” did not convey the one acre in dispute.

We have found the case of Harrill v. Pitts, 194 La. 123, 193 So. 562 (La.1940), which was a petitory action by plaintiffs claiming ownership of 108 acres by record title against defendants in possession claiming ownership of the 108 acres by 10 years acquisitive prescription. The act of sale on which defendants relied conveyed 120 acres but reserved 12 acres which were not described. Plaintiffs contended that since the reserved 12 acres could not be located, the sale did not convey the 108 acres. Citing many cases from common law jurisdictions, the court applied the rule that where a tract of land is conveyed less and except a smaller tract which is not adequately described, the benefit of the insufficient description goes to the grantee, under the general rules that a conveyance should be given effect if possible, and that insuffi-ciencies in descriptions are construed against the grantor who drew the act. The court held the act of sale to the 120 acres conveyed the 108 acres in dispute, although there was nothing in the sale to show where the excepted 12 acres were located. However, the court also considered extrinsic evidence, other deeds of record, to show the location of the 108 acres.

In the later case of Blevins v. Manufacturers Record Publishing Company, 235 La. 708, 105 So.2d 392 (1958), the plaintiff in a petitory action claimed ownership of 408 acres by record title originating with a sale of a fractional section of land less and except the 408 acres which were not adequately described. The defendant claimed the 408 acres by record title from a common author. In the original opinion the Supreme Court applied the rule from Harrill v. Pitts, supra, that where a tract of land is conveyed less and except a smaller tract which is not adequately described, the grantee shall have the benefit of the defect, and the larger tract is conveyed. Three justices dissented on the grounds that if Harrill v. Pitts is good law, it does not apply to the plaintiff in a petitory action who must rely on the strength of his own title and not on the weakness of his adversary. On rehearing in Blevins, the majority did not rely on the rule from Harrill v. Pitts, but relied instead on a subsequent correction deed adequately describing the excepted acreage.

We find no other case which has followed the rule in Harrill v. Pitts, supra. From the majority and dissenting opinions in Blevins v. Manufacturing Record Publishing, supra, it is apparent that the Supreme Court had some doubts as to the Harrill v. Pitts rule and was reluctant to extend it to a situation where the excepted acreage rather than the larger tract was at issue. We conclude that even if the Harrill v. Pitts rule is still viable, we would have to extend it to apply it in the present case. As stated above, the rationale for the Harrill v. Pitts rule is that a conveyance should be given effect if possible, and that an insufficiency in the description of a reserved or excepted tract of land should be construed against the grant- or who drew the act. In the present case, the defendants are the successors in title of Lee Roy Hailey, who was the grantee in the 1953 sale from Mallett, which sale inadequately described the excepted one acre. However, the evidence does not show that plaintiff is the successor in title of any grantor against whom the deficient description should be construed. Moreover, the present case differs from Harrill v. Pitts in that here the excepted acreage is at issue, not the larger tract.

We also note that there is a serious question as to whether the one acre in dispute could be described with sufficient certainty to render judgment recognizing defendants as owners thereof. There is no survey in the record showing that the fence is located on the boundary lines of the SW/4 of the SW/4 of said Section 26 and along the west side of the Ashland-Creston highway. Thus, there may be a question as to whether the one acre in dispute, as described in plaintiff’s petition, is actually located inside defendants’ fence around their 32 acres.

As to that portion of the trial court judgment which recognizes the defendants as the owners of 39 acres, we note that the 39 acres is not in dispute, and its ownership should not be adjudicated in these proceedings.

DECREE

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that judgment be rendered herein in favor of defendants and against the plaintiff dismissing plaintiff’s suit. All costs in the trial and appellate courts are assessed against the plaintiff-appellee.

REVERSED AND RENDERED.

SWIFT, J., dissents in part and assigns written reasons.

DOUCET, J., dissents and assigns written reasons.

SWIFT, Judge,

dissenting in part.

Being of the opinion that the rule of Harrill v. Pitts, 194 La. 123, 193 So.2d 562 (La.1940), is applicable, I respectfully dissent from the refusal to recognize the defendants’ ten year prescriptive title to the one acre tract claimed by the plaintiff in this suit. Otherwise, I agree with the majority’s decision.

DOUCET, Judge,

dissenting.

I respectfully dissent on the grounds that plaintiff established all that was required to sustain his petitory action. The majority imposes a burden of proof which is unwarranted under the law as presently written.

The trial court and majority properly reject defendants’ plea of ten years acquisitive prescription as defendants do not have a deed translative of title to the disputed property. Indeed, defendants’ deed expressly excepts the acre claimed by plaintiff. Thus the requirement of just title as to the disputed tract is not met. See: Ryder v. Lacour, 322 So.2d 243 (La.App. 3rd Cir. 1975) writ refused 325 So.2d 274; Fiorello v. Knecht, 334 So.2d 761 (La.App. 4th Cir. 1976) writ denied 338 So.2d 300.

As to defendants’ assertion that plaintiff did not meet the burden of proof required in petitory actions, the trial judge was of the opinion that plaintiff had proven beyond any doubt that his ancestor in title purchased the one acre tract in question in 1946 and he in turn purchased same from his ancestor in title. LSA-C.C. Art. 531 provides that one who claims the ownership of an immovable against another in possession must prove that he acquired ownership from a previous owner or acquisitive prescription to obtain a judgment in a petitory action recognizing his ownership. This article is new. Accord: LSA-C.C.P. Art. 3653 (as amended Acts 1981 No. 256).

Appellants contend, and the majority agrees, that what Art. 531 really means is that the plaintiff herein must establish an unbroken chain of valid transfers from the sovereign — a title good against the whole world, without regard to the title of the party in possession. Admittedly the comments following Art. 531 purport to retain the “good against the world” standard set forth in Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974), however it is axiomatic that the comments form no part of the law. When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit. LSA-C.C. Art. 13.

Courts must take the law as they find it. As the meaning of Art. 531 is clear and unequivocal we must expound and administer it as written, as to do otherwise we would be assuming a legislative function. Giving the words used in Art. 531 the meaning they are ordinarily understood to have, plaintiff sustained his burden of proof by establishing that he acquired ownership from a previous owner. Thus the title of defendant would not be at issue until plaintiff met this burden. As plaintiff sustained his burden and defendants had no title the trial judge’s ruling in this regard was correct. Furthermore, appellant’s interpretation, that what Art. 531 really means is that plaintiff must establish title good against the world, leads to the questionable result of the land belonging to nobody as defendants clearly have no title and cannot claim ownership via acquisitive prescription.

Equally applicable to this case is the recent decision of the Louisiana Supreme Court in Badeaux v. Pitre, 382 So.2d 954 (1980) wherein plaintiff, under similar circumstances was held to have met the burden of proof required in petitory actions:

“Although it be true that the plaintiff in a petitory action, must succeed on the strength of his own title, and not on the weakness of his adversary’s yet, when the latter has no title at all, he cannot, as a trespasser, take advantage of any defect in the former’s muniments of title. In such cases, a title apparently good, is all that is required to maintain the petitory action. Zeringue v. Williams, 15 La.Ann. 76.” (emphasis added)

With respect to appellant’s contention that the trial court erred in finding plaintiff to be owner of the entire one acre, rather than one-half thereof, I observe that by a correction deed the property description may be corrected, as between the parties, to reflect their true intent, and such reformation relates back to the date of the original deed provided there be no prejudice to third persons. Blevins v. Manufacturers Record Publishing Company, 235 La. 708, 105 So.2d 392 (1957). For reasons aforementioned, the defendants are not third persons such that they would have relied upon the public records to their detriment. I conclude the trial judge’s ruling in this regard was correct.

I find merit in appellant’s final assignment of error. The opinion of the trial court indicates that defendants claimed the entire forty acres, however, they did not pray for recognition of ownership of said land, nor did they file a reconventional demand. They merely asserted acquisitive prescription as a defense with respect to the disputed acreage. Accordingly, this is the only portion of the trial court’s judgment which should be reversed.

For the reasons assigned, I respectfully dissent.

      . Art. 531 Proof of ownership of immovable One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.

      . Indeed these comments were not included in the house bill (Acts 1979, No. 180) but were added later. Furthermore, Section 6 of Acts 1979, No. 180 provides “The article headnotes, the Expose de Motifs and the Comments in this Act are not intended to be considered as part of the law and are not enacted into law by virtue of their inclusion in this Act.”


source: Caselaw Access Project

author: DUFRESNE, Judge.

license: Public Domain

text:
    Roger W. NORRIS v. STATE FARM FIRE AND CASUALTY COMPANY, R. J. Marchand and John Slaughter, d/b/a Camelot Apartments.
    No. 5-32.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Rehearing Denied July 13, 1982.

      E. Ross Buckley, Jr., Buckley & Ward, New Orleans, for defendants, appellants.
    Robert Young, Young, McMahon & Le-vert, New Orleans, for plaintiff, appellee.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   DUFRESNE, Judge.

This matter arises from a lawsuit filed on behalf of Roger W. Norris, plaintiff-appel-lee against State Farm Fire and Casualty Co., R. J. Marchand and John Slaughter, d/b/a Camelot Apartments, defendants-appellants. The lawsuit sought monetary damages as compensation and/or reimbursement for property that was stolen from appellee’s apartment in the Camelot Apartments. Additionally, the lawsuit sought damages for mental anguish. The trial court in a bifurcated proceeding rendered judgment on the liability issue only, holding that Camelot Apartments, as owner, was responsible for damages to the ap-pellee.

Thereafter, at the trial for damages, judgment was rendered in favor of the ap-pellee in the amount of forty-five thousand dollars ($45,000.00).

The appellants have appealed both sus-pensively and devolutively from that judgment.

On appeal, there are two basic issues before us:

1.) Whether State Farm Insurance Company is entitled to a credit of $21,-200.00 because of an alleged payment made by Aetna Casualty and Surety Company to the appellee.
2.) Whether the award of $2,500.00 for “mental anguish” to appellee is proper.

Regarding the first issue, the appellants argue that since the appellee has received $21,200.00 from Aetna, his own insurance company, the trial court’s judgment should be accordingly reduced. Aetna had obtained a subrogation and notified State Farm of this; however, Aetna did not institute its own separate action for recovery nor did it intervene in this case. Further, the record reveals that the defendants-appellants did not except to the nonjoinder of an indispensable party.

Assuming, but not deciding, if Aetna had asserted its claim by separate suit or intervention, the defendants would have been liable to Aetna for the amount paid to the appellee. The collateral source rule has been established in Louisiana.

In Hall v. State Department of Highways, 213 So.2d 169, La.App., the court held as follows:

“While a tort feasor is entitled to credit for payments made through insurance procured by the tort feasor himself, Gunter v. Lord, [242 La. 943] 140 So.2d 11, the plaintiff’s tort recovery is not diminished because of payments made through insurance of other collateral sources independent of the wrongdoer’s procuration or contribution, Gunter v. Lord, at 140 So.2d 16.”

The Collateral Source Rule is applicable in this case and accordingly, the appellants’ claim for a credit of $21,200.00 was properly rejected by the trial court.

The second issue concerning the award of $2,500 for mental anguish to ap-pellee we feel, is correct. Although the appellee was not present when his apartment was burglarized, the fact that the entry was made with some type of “pass key” had to give the appellee some reasonable fear and apprehension. Additionally, the plaintiff’s original petition seeks damage for “mental anguish, inconvenience and harassment”. The amount of the award was stipulated to and the award by the trial judge was within his discretion and we find no abuse thereof.

For the reasons hereinabove expressed, the judgment appealed from is affirmed.

AFFIRMED.


author: GRISBAUM, Judge.

text:
    TERRYTOWN PROPERTIES, INC., Westbank Revival Center Corporation, and Joyce D. Meyer v. PARISH OF JEFFERSON.
    No. 5-28.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Rehearing Denied July 13, 1982.
    Odom B. Heebe, Bernhardt C. Heebe and H. Gordon Hartman, New Orleans, for plaintiff s-appellees.
    H. A. Vondenstein and Ronald J. Gillen, Gretna, for defendant-appellant.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   GRISBAUM, Judge.

This case comes to this court on appeal from a judgment by the Twenty-Fourth Judicial District Court which overturned the Jefferson Parish Council’s decision denying rezoning of property located at the northwest and southwest corners of the intersection of Behrman Highway and Carol Sue Avenue. The trial court ordered a mandatory injunction rezoning the property and found that the Jefferson Parish Council was arbitrary and capricious when it turned down plaintiffs-appellees’ petition to have the zoning ordinance amended.

Plaintiffs-appellees Terrytown Properties, Inc., Westbank Revival Center Corporation, and Joyce D. Meyer filed a Zoning Ordinance Amendment Form, Map Change, in April 1979 for this property to be rezoned from Single Family Residential (R-l) to General Commercial (C-2). After a public hearing and review of the recommendation of the Planning Zoning Board, the Jefferson Parish Council denied the rezoning classification. Terrytown Properties, Inc., Westbank Revival Center Corporation, and Joyce D. Meyer filed suit in the Twenty-Fourth Judicial District Court for a mandatory injunction requiring the Parish Council to rezone the property from R-l, Single Family Residential, to C-2, General Commercial. The trial court judge ruled the Jefferson Parish Council’s denial of the rezoning amendment was arbitrary and capricious and ordered a mandatory injunction requiring the Council to rezone the property in the following manner:

LOTS 16,17,18,19 and 20, SQUARE 128, TERRYTOWN SUBDIVISION NO. 8, be rezoned from R-l, Single Family Residential, to C — 1, Neighborhood Commercial;
LOT 15, SQUARE 128, TERRYTOWN SUBDIVISION NO. 8, from R-l, Single Family Residential, to R-2, Two-Family Residential;
LOTS 1, 2, 3 and 4, SQUARE 135, TER-RYTOWN SUBDIVISION NO. 8, from R-l, Single Family Residential, to C-l, Neighborhood Commercial;
LOT 5, SQUARE 135, TERRYTOWN SUBDIVISION NO. 8, from R-l, Single Family Residential, to R-2, Two-Family Residential;
LOTS 57-A and 58-A, SQUARE 135, TERRYTOWN SUBDIVISION NO. 8, to remain R-l, Single Family Residential.

On appeal, the appellant, the Parish of Jefferson, contends that the Council was reasonable in its rejection of plaintiffs-ap-pellees’ request to change the present zoning classification of their property and that, therefore, the trial court erred in substituting its views for those of the parish governing body as to the wisdom of or need for a change in the zoning regulations. The plaintiffs-appellees, Terrytown Properties, Inc. et al, on the other hand, contend that the trial court’s decision was correct because a refusal to rezone the property by the Council was arbitrary, capricious, a denial of equal protection and due process under the laws of the State of Louisiana and the Constitution of the United States of America.

The issue on appeal is whether the trial court was correct in reversing the decision of the Jefferson Parish Council to retain the current zoning of the property as R-l, Single Family Residential.

The fundamental principle upon which to analyze this issue lies in the separation of powers between the legislative, executive, and judicial branches of government. The power of the Jefferson Parish Council to adopt and amend zoning regulations is derived from the police powers vested in it through La.R.S. 33:4721 et seq. In order for the judicial branch to take part in a zoning decision (i.e. substitute its view for those of the parish governing body as to the wisdom of or the need for a change in the zoning regulations), it must conclude that there has been an abuse of discretion or an excessive use of power. See Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659, 672 (La.1975); Hardy v. Mayor and Bd. of Aldermen, etc., 384 So.2d 143, 148 (La.App. 3rd Cir. 1977).

Moreover, the zoning ordinance designating this property in question R-l is presumed to have been adopted by the Jefferson Parish Council for valid purposes. The burden is on the party or parties attacking the ordinance, in this case Terrytown Properties, Inc., Westbank Revival Center Corporation and Joyce D. Meyers, to overcome this presumption of validity. Four States Realty, supra; Hardy, 348 So.2d 143, 148.

In general the criteria for judicial review of zoning ordinances was set forth in Folsom Road Civic Assoc. v. Parish of St. Tammany, 407 So.2d 1219, 1222 (La.1981) which states:

“The authority to enact zoning regulations flows from the police power of governmental bodies and is valid if it bears a rational relation to the health, safety and welfare of the public .... Zoning ordinances are presumed to be valid and whoever attacks the constitutionality of an ordinance must show an abuse of discretion or an excessive use of power....” (Emphasis added)

Specifically, the exercise of the governing body’s police power to deny an amendment of these zoning regulations will be upheld unless it is shown that there has been an abuse of discretion or excessive use of power, or that the action taken was arbitrary or unreasonable or that it bears no relation to the health, safety, or general welfare of the public. See Four States Realty, supra; Kirk v. Town of Westlake, 373 So.2d 601, 602-03 (La.App. 3rd Cir. 1979); Hardy, supra; Meyers v. City of Baton Rouge, 185 So.2d 278, 281-82 (La.App. 1st Cir. 1966). We adopt the test for invoking judicial action set forth in Kirk, 373 So.2d 601, 604. Plaintiffs-appellees must not only show the merits of their requested zoning change (a change from R-1, Family Residential, to C-2, General Commercial) but also demonstrate that the current zoning of the property is unreasonable, arbitrary, and discriminatory under all attending circumstances.

This court finds that this two-fold burden of proof has not been met by the plaintiffs-appellees; therefore, we reverse the trial court’s mandatory injunction requiring rezoning of this property. We are not satisfied that the plaintiffs have shown the merits of their requested change from R-l, Single Family Residential, to C-2, General Commercial. While testimony at the trial of various experts indicated a preference for non-residential use, none of the plaintiffs’ experts could testify that C-2, General Commercial, was a favorable designation for the property. Plaintiffs’ expert, Mr. Hugh Ford, Planning Director, when asked about his recommendation for zoning the property commercial stated at Tr. 8-9:

“First of all, the request for was (sic) C-2, and I felt that I could not recommend C-2. I did recommend a C-l classification because the property across the street, to the east on the other side of Behrman Highway is zoned C-l, and I did not give it any consideration as to other types of non-residential ...”

Plaintiffs’ expert in city planning, Mr. Louis Bisso, stated that some of the property in question should be changed to R-2 (Multi-Family) and the rest to non-residential use; however, he did not explicitly designate C-2 as the preferred use. Responding to a question as to his recommendation he stated:

“... [I]n my report, I did not get into C-l or C-2 or any other. I used the word non-residential use. As a consultant, I don’t like to get specifically into the type of commercial, but I certainly do not think it should be residential so I prefer to say non-residential zoning.” Tr. 31.

In contrast, defendant’s expert, Frank Rodriguez, a city planning consultant, testified there was no need for commercial zoning in the area in question. He found that 22.5 percent of the property in this area was already zoned commercial. According to Mr. Rodriguez, ordinarily there should only be 7 percent to 12 percent of the property zoned commercially.

Even if we should conclude that plaintiffs have shown the merits of a change to C-2, General Commercial, we do not feel they have born the burden of proof required for a trial court to be able to substitute its views for those of the parish governing body. The hearing minutes as well as trial testimony indicate great public opposition to the proposed amendment. While the trial judge in his reasons for judgment quoting Jemison v. City of Kenner, 277 So.2d 728 (La.App. 4th Cir. 1973) minimized the importance of this opposition, we feel this opposition should not be minimized. The facts of Jemison are distinguishable. In Jemison, the court was convinced that the municipal governing body’s decision denying the rezoning classification request was based substantially on objections of “some” of the voters residing in the area. The court recognized that the interests of the electorate should be considered but felt that those interests alone could not be the basis for a zoning decision when there were sound reasons to the contrary. Thus the court found the test of reasonableness was not met. In the instant case, however, there was substantial opposition from the residents of the area as well as planning reasons for the denial. Certainly it is proper for the Council to have considered the neighborhood residents’ reaction to the proposed amendment. The enabling statute La.R.S. 33:4721 states that it is the purpose of zoning regulations to promote public health, safety, morals, convenience, order, prosperity, and general welfare of the community. The residents of the area are in a position to have knowledge of how such a proposed change would affect the quality of life of the area. In addition, as defendant’s expert Franklin R. Rodriguez testified, since 1958 the Council has denied all requests for commercial zoning on the west side of Behrman Highway between Holmes and Peters Streets in order to provide a “buffer” zone. While the wisdom of this planning decision may be questioned by some planning experts, the “plan” indicates that refusal of plaintiffs’ request to make this corner commercial has a rational basis. In light of the opposition from the neighborhood, as well as the Council’s design to maintain a separation between the commercialization on the east side of Behrman Highway and the residential nature on the west side of Behrman Highway, we find the record is not void of reasons for the Council’s denial of this zoning amendment. Neighborhood opposition and a plan to keep one side of Behrman Highway free of commercial development provide a proper basis for their decision.

Perhaps the trial court’s plan for rezoning is in fact the most “enlightened.” However, we find that the plaintiffs have not carried their burden of proving that (1) their C-2 designation had merits as opposed to other commercial or residential designations; and that (2) the Council’s action had no rational basis, i.e., was arbitrary and capricious. Since the plaintiffs did not carry their burden, the trial court had no authority to substitute its view as to the best plan for zoning the area. The importance of the separation of powers and the concomitant limitation on judicial review was aptly stated in Kirk, 383 So.2d 601, 604-05:

“Judicial review of the propriety or wisdom of municipal authorities in exercising their police power by creating zoning ordinances is quite a serious and difficult undertaking because of the often far reaching consequences of such action. Judicial power will be brought to bear only when there has been an abuse of discretion or an excessive use of power, or when it can be shown that the action taken by the authorities is unreasonable or arbitrary; or does not bear a satisfactory relationship to the public health, safety, or morals.”

CONCLUSION

Since the plaintiffs have not carried their burden, we find that the trial court erred in granting a mandatory injunction requiring rezoning of the property in question.

The judgment of the District Court is reversed, judgment hereby rendered in favor of defendant, Jefferson Parish, and plaintiffs’ suit dismissed. All costs of the suit and of this appeal are assessed to plaintiffs-appellees.

REVERSED AND RENDERED.

      . Mr. Rodriguez referred to this area as “over-commercialized.” Tr. 75.

      . Tr. 75. Moreover, the record is void of any evidence that this persistent denial has historically been arbitrary and capricious.

      . The trial court in his reasons for judgment found that Behrman Highway would not act as a buffer zone and thought it a “better” decision to rezone the block according to the Planning Department’s recommendations.


text:
    Rayfield WHITE, Sr. v. JOHNS-MANVILLE SALES CORPORATION, a/k/a Johns-Manville Products Corporation.
    No. 5-242.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Rehearing Denied July 13, 1982.

      Gertler & Gertler, David Gertler, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz, New Orleans, for defendant-appellant.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a workers’ compensation suit in which plaintiff, Rayfield White, Sr., was awarded benefits for permanent total disability pursuant to La.R.S. 23:1221(2) in the amount of One Hundred Forty-Eight and no/100 dollars ($148.00) per week commencing June 30, 1980, with legal interest thereon from date due until paid. Past due medical expenses in the amount of One Thousand Eight Hundred Thirty-Three and 10/100 dollars ($1,833.10) and future medical expenses were also awarded by the trial court. From this judgment, defendant, Johns-Manville Sales Corporation, appeals claiming the trial court erred in (1) awarding any benefits to plaintiff because he did not suffer a compensable occupational disease under Louisiana Workmen’s Compensation Act, La.R.S. 23:1031.1; in (2) finding plaintiff is in the “odd-lot” category and denying defendant an opportunity to prove that substantial employment opportunities exist for plaintiff; and finally in (3) determining the date of compensation from the date the disability was discovered, June 30, 1980, rather than from the date of last injurious exposure which would be 15 to 20 years prior to the date in which the alleged disease manifested itself.

We affirm the trial court’s judgment.

The record reflects that Rayfield White, Sr. at the time of trial was a 53 year old man with a fifth grade education who had worked for Johns-Manville Sales Corporation (hereinafter known as Johns-Manville) in Marrero, Louisiana for approximately 33 years (from June 1948 until June 1980). During those years he worked in various departments of Johns-Manville including the transite pipe plant where he was exposed to asbestos fibers and silica, the asbestos shingle plant where he was exposed to asbestos fibers, and the roofing plant where he was exposed to silica. During his years of employment he used respirator masks intermittently. After experiencing shortness of breath in May 1980, Mr. White was examined by Dr. Morton Brown who performed chest X-rays. According to Dr. Brown, Mr. White’s X-rays indicated evidence of emphysema, interstitial reaction, and pleural plaques along the chest walls. In June 1980, Mr. White was hospitalized for five days to undergo further testing by Dr. Brown. Dr. Brown diagnosed Mr. White’s condition as interstitial fibrosis (commonly known as asbestosis when asbestos is the substance causing the fibrosis) and found that Mr. White also had pleural plaques along the chest walls. Dr. Brown recommended that Mr. White not return to work. Mr. White stopped working in July 1980. In August 1980, Mr. White was hospitalized after complaining of chest pains. Dr. Charles Steiner, a cardiologist, diagnosed Mr. White’s condition as primary car-diomyopathy, a disorder of the heart muscle wherein the heart muscle is dilated. After treatment of this condition, Dr. Steiner set no limitations on Mr. White’s activities.

At the request of Johns-Manville, Mr. White was examined by Dr. Hans Weill in November 1980. Dr. Weill found that Mr. White had pleural plaques along the lateral chest wall and diaphragmatic plaques. These plaques were both calcified and un-calcified. Dr. Weill attributed these plaques to asbestos exposure. However, Dr. Weill did not find evidence of interstitial fibrosis (asbestosis).

Meanwhile Mr. White had made demand for workmen’s compensation payments from Johns-Manville in August 1980. When this demand was refused by Johns-Manville, he filed suit on September 11, 1980.

The central issue is whether Rayfield White is unable “to engage in any gainful occupation for wages” within the meaning of La.R.S. 23:1221(2) (Supp.1975) and therefore should be awarded compensation for permanent total disability. In order to answer this question this court must decide:

(1) Whether Rayfield White has interstitial fibrosis (asbestosis);
(2) If White does have interstitial fibrosis, whether plaintiff has made a pri-ma facie case that he should be included in the “odd-lot” category;
(3) If plaintiff has made out a prima facie case that he fits within the “odd-lot” category, may this case be remanded in order that defendant, Johns-Manville, may present evidence that work is available to plaintiff; and finally,
(4) What is the appropriate time for determination of the rate of compensation for recovery benefits under the Louisiana Workmen’s Compensation occupational disease statute, La.R.S. 23:1031.1.

After listening to the testimonies of both plaintiff’s and defendant’s experts, reading depositions of defendant’s experts, and reviewing hospital and Johns-Manville’s medical records of Mr. White which were introduced into evidence, the trial judge answered the first issue by concluding that Ray-field White was suffering from asbestosis, an occupational related disease whereby the inner lining of the lungs scars due to exposure to asbestos dust. In addressing the first issue of whether plaintiff suffers from the occupational disease of asbestosis, we are guided by Canter v. Koehring Co., 283 So.2d 716 (La.1973) which sets forth the standard by which this court must review the trial judge’s factual finding that Mr. White suffers from asbestosis. The court in Canter, 283 So.2d 716, 724 stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.”

According to Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978), “manifestly erroneous” means “clearly wrong.” After review of the entire record, we do not find the trial judge’s conclusion that Rayfield White is suffering from asbestosis as clearly wrong. It is true that there is conflicting testimony in which the trial court chose to believe one expert’s opinion over another expert’s opinion as to Mr. White’s lung condition. Dr. Morton Brown, an expert in pulmonary diseases, testified that Mr. White’s X-rays revealed clear evidence of interstitial fibrosis. Based on the existence of the fibrosis, the pleural plaques, and Mr. White’s history of exposure to asbestos, Dr. Brown made a diagnosis of asbestosis. Moreover, Dr. Brown’s testimony is not the only evidence upon which the trial court could have based its finding that Mr. White had contracted asbestosis. Plaintiff introduced into evidence a report from a radiologist from West Jefferson Hospital which stated:

“There are chronic lung changes noted with calcification of the left diaphragm. The possibility of pneumoconiosis should be considered.” (Plaintiff’s Exhibit # 10)

Also important are the notations of Johns-Manville’s own company physician. (Defendant’s Exhibit # 1) The employees of Johns-Manville were annually sent for physical examination which included chest X-rays read by Johns-Manville’s physicians. In 1962, Mr. White was X-rayed at Johns-Manville; the notation “slight reticulation suggestive of early asbestosis” was written on Mr. White’s medical report. This medical record made in 1962 by Johns-Manville’s own physician finding “slight reticulation suggestive of early asbestosis”, as well as Dr. Brown’s testimony and the findings of the radiologist from West Jefferson Hospital, provide a foundation upon which to base the trial court’s conclusion that Mr. White has asbestosis, and, thus, this conclusion is not “clearly wrong.”

Defendant Johns-Manville claims that the trial court has ignored its expert, Dr. Hans Weill, a specialist in pulmonary diseases, especially asbestosis related diseases, who specifically found no evidence of pulmonary fibrosis (asbestosis), and the depositions of Dr. Steiner who found Mr. White suffered from cardiomyopathy and put no limitation on Mr. White’s activity and Dr. Grimstad, a specialist in internal medicine with a sub-speciality in pulmonary diseases, who never personally saw Mr. White but evaluated his pulmonary function tests and found that Mr. White was normal. We disagree. The trial court has merely performed the common functions of a trier of fact by evaluating the conflicting testimony and by making determinations as to the weight to be given to evidence and the credibility attributed to the testimony of the witnesses since the trier of fact is in the best position to evaluate witnesses and other evidence. The trial court has permissibly resolved in plaintiff’s favor the conflicting evidence as to whether asbestosis is present. Billiot v. Bourg, 338 So.2d 1148, 1151-52 (La.1976). Moreover, we cannot find, after careful review of the entire record, that this determination is clearly wrong.

This brings us to a discussion of whether plaintiff has made out a prima facie case that he fits within the “odd-lot” category as set forth by the Louisiana Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). Under the odd-lot doctrine a claimant may be considered totally disabled if due to his injury he is considered ‘odd-lot’ in the competitive labor market. This means that although he may be capable of holding various jobs from time to time, the kind of work he can perform is so limited in quality, dependability, or quantity that a reasonable stable market for his work does not exist. Oster, 390 So.2d 1318, 1323-24 explained the test for determining whether a claimant fits within this category in the following manner:

“. .. [H]e must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.’ Reese v. Preston Marketing Assoc., 274 Minn. 150, 142 N.W.2d 721, 723 (1966). If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ ”

The trial court applied the above test to Mr. White’s situation. He was impressed that Mr. White was a 53 year old man with only a fifth grade education who, during his entire work history, had only performed jobs requiring physical labor. These individual characteristics of Mr. White, coupled with the fact that he was found to have asbestosis which can be debilitating and progressive in nature and pleural plaques which increase one’s risk to cancer and mesothelioma, prompted the trial court to find that plaintiff had made a prima facie case for classification in the odd-lot category. We cannot find that the trial court was clearly wrong in the categorization. We, too, conclude that Mr. White has established a prima facie case for odd-lot categorization. The burden then shifts to Johns-Manville to show that jobs are available to provide Mr. White with “a gainful occupation.” Oster, supra.

At the trial the defendant, Johns-Man-ville, failed to rebut that Mr. White is permanently disabled to engage in a gainful occupation for wages by introduction of evidence as to job opportunities available to Mr. White. Defendant requests this court to remand this case on this issue to allow it opportunity to present testimony of a qualified vocational rehabilitation expert who could demonstrate that work opportunities are available to Mr. White.

La.C.C.P. Article 2164 is the authority for an appellate court to remand an action to the trial court for consideration. This article states in part:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal

The jurisprudence has interpreted La.C.C.P. Article 2164 to empower an appellate court to remand a case for the introduction of additional evidence to prevent a miscarriage of justice. However, such a procedure should be sparingly exercised. Herbert v. Traveler’s Indemnity Co., 255 La. 645, 232 So.2d 463, 464-65 (1970); Jones v. LeDay, 373 So.2d 787, 789 (La.App. 3rd Cir. 1979); Bidwell v. Binnings Construction Co., 228 So.2d 240, 242 (La.App. 1st Cir. 1969).

To support its request for a remand, defendant cites Turner v. American Mutual Insurance Co., 390 So.2d 1330 (La.1980). Turner, however, can be distinguished. In Turner, the “odd-lot” categorization became important after the trial on the merits. The Supreme Court remanded Turner two days after its decision in Oster which adopted the odd-lot doctrine. In the instant case, the odd-lot doctrine had been established for over a year when this case went to trial. Defendant should have been fully cognizant that the odd-lot status of Mr. White would be an issue in the case. Ample opportunity was afforded defendant to present evidence since the trial was continued twice as an open case. Defendant was also given opportunity after trial to submit a post-trial memorandum on the issue of the odd-lot doctrine, but it failed to avail itself of that opportunity. Defendant cannot now be allowed a remand to present further evidence that it could have presented at trial had it chosen to do so. See B. Stern Co. v. Perry, 246 So.2d 246, 250 (La.App. 1st Cir. 1971). Accordingly, we deny defendant’s request for a remand on the issue of job availability for Mr. White.

The last issue to be considered is the correct compensation rate to be awarded to plaintiff. Defendant contends that the trial court erred by utilizing the compensation rate at the date of disability, which was June 1980. Defendant argues that the proper rate to be used is the rate in existence at the date of “injury” or last injurious exposure. This date would be Mr. White’s last exposure to the conditions causing his occupational disease.

After analysis of the occupational disease provision, La.R.S. 23:1031.1 and occupational disease cases, we have come to the conclusion that the date of disability is the correct time in which to determine the compensation rate. Prior to 1952, Louisiana’s Workmen’s Compensation Act recognized recovery for injury caused by an “accident.” Louisiana courts interpreting the Act denied recovery when the plaintiff’s affliction was attributable to an occupational disease rather than an “accident.” Malone & Johnson, Workers’ Compensation, § 219 in La. Civ.L.Treatise 458 — 162 (2nd ed. 1980). They noted a distinction between the onset of an occupational disease and a single event accident or injury. Occupational diseases are not the result of any one single event — there is no “accident” or “injury” in the typical sense of these terms. Instead, an occupational disease is the result of a series of events often imperceptible in nature which are eventually evidenced in the manifestation of a disability. See Cannella v. Gulf Refining Co. of La., 154 So. 406 (La.App.Orl.1934); Freiss v. Lone Star Cement Co., 161 So. 209 (La.App.Orl.1935); Glover v. Fidelity & Casualty Co., 10 So.2d 255 (La.App. 2nd Cir. 1942). Moreover, the distinction between an occupational disease and an “accident” led the Louisiana legislature in 1952 to enact an occupational disease provision, La.R.S. 23:1031.1; thus, for purpose of Louisiana’s Workmen’s Compensation Act, an occupational disease is not the same as an “accident.” The time, therefore, for determining the compensation rate for an occupational disease should not necessarily be analogized to the time for determining the compensation rate for an accident.

In accident cases the date of injury can be pinpointed. However, an occupational disease is not an “injury” that is susceptible of such precise determination since occupational diseases in general are progressive diseases that develop over a long period of time. The symptoms of an occupational disease usually appear gradually with the victim’s condition becoming worse over time. It increases almost imperceptibly as time goes on until finally the point of disability is reached. Moreover, the exact date for the inception of the disease is medically indefinable since there is no single moment of sudden injury as contrasted with the date of manifestation which can be pinpointed and therefore lends itself to less speculation. Malone & Johnson, Workers’ Compensation, supra § 219. According to Cannella, 154 So. 406, 408:

In occupational disease, any one exposure is inconsequential in itself, but the continual absorption is the factor which brings on the disease. In such cases, he can be held injured only when the accumulated effect of the deleterious substances manifest themselves. (Emphasis added)

Thus the time of the manifestation of the disease is logically the correct time in which to award compensation. The trial court did not err when it awarded Mr. White One Hundred Forty-Eight and no/100 dollars ($148.00) per week, the compensation rate at the time of disability, i.e., when the disease manifested itself.

In summary, this court finds that the trial court was not clearly wrong in finding that Rayfield White had asbestosis thus there has been no manifest error warranting a reversal of this conclusion. We also find that Mr. White has made a prima facie case that he fits within the odd-lot category set forth in Oster and that defendant, Johns-Manville Sales Corporation, has not carried its burden of showing there are steady jobs available to plaintiff. Therefore, we hold that the plaintiff is entitled to an award of total permanent disability benefits. The correct compensation rate for purposes of the occupational disease provision of the Louisiana Workmen’s Compensation Act is at the time of disability; i.e., the time the disease manifests itself which in this case would be June 30,1980.

For the reasons assigned, we affirm the judgment of the trial court against defendant, Johns-Manville Sales Corporation, and tax Johns-Manville Sales Corporation with all costs of these proceedings.

AFFIRMED.


author: REDMANN, Chief Judge. PER CURIAM.

text:
    Mary A. BUTLER v. Ruth Daniels REDDICK a/k/a Ruth Daniels Riddick.
    No. 12347.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.

      Clarence F. Favret, Jr., Favret, Favret, Demarest & Russo, New Orleans, for plaintiff-appellant.
    Bruno, Bruno & Blouin, Jerry L. Blouin, Frank S. Bruno, New Orleans, for defendant-appellee.
    Before REDMANN, C. J., and GARRISON and BYRNES, JJ.
   REDMANN, Chief Judge.

The question on this appeal is whether a manual gift is established by proof that the now deceased donor transferred funds from a New York bank to a joint account in a New Orleans bank in the names of himself or defendant and that defendant reduced those funds to cash in her possession prior to decedent’s death, when defendant’s testimony is the only direct proof of donative intent, although certain other circumstances add to the credibility of defendant’s testimony.

Those other circumstances include that defendant was the mother of decedent’s first wife; that when decedent came to New Orleans after his mother’s death defendant went to the airport to pick him up and decedent’s aunt (plaintiff) refused to go to the airport; decedent elected to stay at defendant’s home; defendant took care of decedent; when decedent had to go to the VA hospital in Gulfport defendant drove him there and thereafter drove there weekly to visit him. All of those circumstances are of a nature that would allow contradiction, yet they were not contradicted. They do afford some added credibility (in addition to the trial judge’s intuitive evaluation) to defendant’s basically self-serving and not readily verifiable or contradictable testimony that decedent told her from the outset and at all times that he wanted her to have the money; and that “most of the time” (but not the last, when the bulk of the account was withdrawn) when defendant went to the bank to withdraw money, decedent went with her for the ride; at the time of the last withdrawal decedent was in the hospital but repeated that he wanted her to have the money.

It is true that, after decedent left the hospital in 1976, he went to stay with his aunt, plaintiff in this matter. It is also true that on the bank signature card, following the typed names “JOHNSON, George A. or Ruth D. Riddick,” there is a handwritten annotation “(To buy property)” and defendant had no recollection concerning that annotation (nor was it shown when it was written).

We cannot, however, say that the trial judge erred in his credibility evaluation. Appellant cites earlier cases that suggest the unattractiveness of credibility decisions that affect a joint account, and surely the mere establishment of a joint account does not establish donative intent. But, as we understand the supreme court in Succession of Miller, 405 So.2d 812 (La.1981), donative intent may be established by testimony and circumstances similar to those here present.

We note that Miller involved a joint account “payable to either or survivor.” “Or survivor” might suggest a testamentary intent, although invalid for want of proper form, but we could not read those added words to show inter vivos donative intent. We cannot distinguish Miller from the present case, save as to the specific bits of evidence that lent credibility to the Miller donee’s testimony. We therefore follow Miller.

Affirmed.

On application for rehearing

PER CURIAM.

Plaintiff’s application for rehearing complains of our failure to address her argument that it was error for the trial judge to refuse to permit her to testify that decedent, on the day before his death, expressed surprise and dissatisfaction on learning of defendant’s withdrawal of decedent’s money from the joint account. Our view was that, irrespective of the admissibility of that testimony, the trial judge’s credibility evaluation gave credence to defendant and not to plaintiff, and would have discredited that testimony. The result would have been the same. Our original opinion noted “the unattractiveness of credibility decisions that affect a joint account ... [whose] mere establishment does not establish donative intent.” We are not free, however, to disregard Miller, and plaintiff’s attempted distinction of Miller does not satisfy us that we may insist on a form for donations inter vivos that Miller holds unnecessary.

Rehearing is therefore refused.

      . Defendant has died subsequent to the trial court’s judgment and her heirs are substituted for her in this appeal.

      . Defendant made eight withdrawals totalling about $4,000 from November 1974 to May 1975, when she withdrew the remaining nearly $47,000.


author: GULOTTA, Judge.

text:
    Kay Fowler DEAN v. Douglas DEAN.
    No. 12950.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.
    Bussoff & Waldrup, Dorothy F. Waldrup, New Orleans, for plaintiff-appellee.
    Roy A. Raspanti, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

The defendant-husband, appealing, claims a $3,000.00 per month alimony pendente lite award for the plaintiff-wife and three minor children, ages six, four and two-and-a-half, is excessive. We affirm.

The record discloses the husband’s earnings after taxes were stipulated at $90,-000.00 annually based on a before-tax income of $179,222.00; the wife’s monthly expenses for the support of herself and the minor children to permit her to continue in a life style commensurate with the husband’s income total $6,130.00; the husband’s monthly expenses total $1,200.00; and the community has an outstanding indebtedness of $42,000.00, but there is no outstanding mortgage on the newly constructed, impressive and large family home. Under the circumstances, we find no abuse of the trial court’s discretion in the amount awarded. See Barnett v. Barnett, 405 So.2d 630 (La.App. 3d Cir. 1981); Guinn v. Guinn, 405 So.2d 620 (La.App. 3d Cir. 1981); Vidrine v. Vidrine, 402 So.2d 793 (La.App. 3d Cir. 1981); Shepard v. Shepard, 334 So.2d 745 (La.App. 3d Cir. 1976); Bernard v. Bernard, 300 So.2d 499 (La.App. 3d Cir. 1974); Nelson v. Nelson, 311 So.2d 268 (La.App. 1st Cir. 1974); Thomas v. Thomas, 281 So.2d 471 (La.App. 4th Cir. 1973); Mouton v. Mouton, 372 So.2d 771 (La.App. 4th Cir. 1979).

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


text:
    Mr. & Mrs. Hezzie HOLDEN v. CLEARVIEW DODGE SALES, INC., et al.
    No. 13004.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied July 16, 1982.

      Mentz & Gorrell, Henry A. Mentz, Jr., Hammond, Simon, Peragine, Smith & Red-fearn, Christopher M. Guidroz, New Orleans, for plaintiffs-appellants.
    Lobman & Carnahan, Burt K. Carnahan, Metairie, for Clearview Dodge Sales, Inc.
    McGlinchey, Stafford & Mintz, William F. Bologna, New Orleans, for Chrysler Corp.
    Turner & Young, Emile L. Turner, Jr., New Orleans, for Fleetwood Enterprises, Inc.
    Liskow & Lewis, Anne E. Tate, New Orleans, for General Elec. Credit Corp.
    Johnston & Duplass, Gary M. Zwain, New Orleans, for Allstate Ins. Co.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Plaintiffs filed this suit in redhibition following the destruction by fire of their 1978 Dodge Jamboree motor home.

Named as defendants were Fleetwood Enterprises, Inc. (Fleetwood), manufacturer of the coach, Chrysler Corporation, manufacturer of the chassis, and Clearview Dodge Sales, Inc. (Clearview), the dealer-seller.

Petitions of intervention were filed by Allstate Insurance Company (Allstate), the Holdens’ casualty insurer, seeking reimbursement for fire insurance proceeds paid to the Holdens, and by General Electric Credit Corporation (GECC), the holder of the Holdens’ chattel mortgage and promissory note, seeking the unpaid balance of the purchase price of the vehicle. In a supplemental and amended petition, plaintiffs also seek recovery against Bellefonte Underwriters Insurance Company, Clearview’s insurer, based on a claim of negligent repair by Clearview prior to the fire.

Judgment was rendered in favor of the Holdens and against Fleetwood only, for $28,634.26, representing the cost of the vehicle, less unearned finance charges. This amount was reduced by judgments in favor of GECC for $11,387.40, the unpaid balance of the note, and in favor of Allstate for the sum of $11,250.00 on Allstate’s intervention in reimbursement for funds paid to plaintiffs for the fire damage. Plaintiffs’ net award of $5,996.86 equals the total amount paid on the note by plaintiffs ($1,093.16) plus the value of their trade-in vehicle ($4,903.70), made as a down-payment on the purchase of their motor home. Plaintiffs’ claims against Chrysler, Clearview and its insurer, Bellefonte, were dismissed. The trial court later amended the judgment to award plaintiffs attorneys’ fees in the amount of $3,750.00 against Fleetwood only, and to set experts’ fees at $150.00 for each expert.

Fleetwood, appealing, contends plaintiffs have failed to establish the existence of a defect at the time of manufacture of the vehicle, and are therefore not entitled to recover the return of the purchase price and attorneys’ fees. Alternatively, if plaintiffs are entitled to recover, according to Fleet-wood, recovery is limited to $12,500.00, the stipulated cash value of the vehicle at the time of the fire.

Plaintiffs, appealing, seek an increase in the amount of attorneys’ fees awarded, expenses incurred for expert fees in preparation for trial, and legal interest on their down payment from the date of purchase.

Allstate has answered the appeal, seeking an increase in the judgment in its favor from $11,250.00 to the sum of $12,500.00. GECC has also filed an answer to the appeal, seeking interest stipulated in the note instead of judicial interest awarded by the trial judge. Also, in answer to Fleetwood’s appeal, Clearview seeks attorneys’ fees against Fleetwood.

Plaintiffs purchased their new motor home from Clearview on September 19, 1978, and took delivery in early October. Except for minor problems, which were corrected by Clearview’s service department, plaintiffs operated the vehicle without incident during November.

On December 7, 1978, on a weekend trip, a “flash fire” occurred in a “monitoring panel” in the coach portion of the vehicle. The motor home was returned to Clearview where the burned monitoring panel was replaced and a wire that had been cut by a fastening staple was repaired. The vehicle was returned to plaintiffs in early February, 1979.

The Holdens experienced no further problems with the monitoring panel or the vehicle during limited operation over a ten-day period. However, at approximately 4:30 p. m. on February 14, 1979, Holden connected the vehicle to house current through a “converter” on the mobile home for the purpose of charging the batteries and operating the refrigerator. The converter is designed to convert 110V house current to the 12V motor home current. During the early morning hours of February 15, the motor home was destroyed by fire emanating from the coach area of the vehicle. This suit followed.

In written reasons, the trial judge concluded that the fire was caused by a defect in the “converter” but that plaintiff had failed to prove the defect had existed at the time of the sale. Accordingly, the court awarded judgment under a “products liability theory” rather than in redhibition. The trial judge then awarded plaintiffs the total cost of the vehicle less the refund due them for unearned finance charges.

CAUSATION

It is Fleetwood’s contention that the fire emanated from the monitoring panel earlier repaired by Clearview and not from a factory installed defective converter. However, the trial judge found the fire was caused by the defective converter and the record supports that conclusion.

J. Allen Bennett, an expert in the origin and cause of fires, stated the fire had originated in the converter located just above floor level in the left side of the coach portion of the vehicle behind the rear dual wheels. Photographs demonstrate (according to Bennett) a V-shaped burn pattern on the left side of the vehicle that comports with his theory of the converter as the point of origin. This expert saw no evidence to indicate the vehicle’s appliances or the monitoring panel contributed to the cause of the fire. According to Bennett, origin of the fire in the monitoring panel would have required a secondary burn through the floor of the vehicle, which was not indicated by the burn pattern.

Emerson G. Wilkinson, a deputy state fire marshal who inspected the vehicle, corroborated Bennett’s findings. He testified that the cause of the fire was in the “electrical system” of the coach and that the fire had occurred in the lower area of the left side of the vehicle starting at the plug for the 110V current.

George A. Hero, an electrical engineer, also an expert in cause and origin of fires, was of the opinion that the fire was due to an electrical failure in the coach section of the vehicle because of some wiring defect, “not necessarily when it left the factory but after several repairs.” Unlike Bennett and Wilkinson, Hero was of the opinion that the most likely cause of the February, 1979 fire was a recurrence of the December, 1978 fire in the monitoring panel.

Hero’s testimony differed from his initial opinion earlier expressed in a deposition where he had concluded that the cause of the fire was in the auxiliary battery charger, which is part of the “converter”. Furthermore, in a second pre-trial deposition, Hero had expressed still another opinion that some defect existed in the wiring of the unit when it left the factory and that the water pump was a triggering element that had drawn current to provide an ignition immediately prior to the fire.

When we consider the apparently conflicting expert evidence, we cannot say the trial court erred in concluding that a failure in the converter caused the fire.

REDHIBITION OR PRODUCTS LIABILITY

Fleetwood contends, however, because no showing was made of knowledge of the existence of a defect at the time of sale, plaintiffs are not entitled to attorneys’ fees and damages. See LSA-C.C. Art. 2545. According to Fleetwood, the judge erred in his award.

It is true the trial judge in written reasons concluded there was no evidence to support a showing that the converter was defective at the time of purchase. Although he concluded recovery was not in redhibition but in products liability, and did not award attorneys’ fees in the original judgment, he did so after granting a partial motion for new trial.

Concerning plaintiffs’ entitlement to attorneys’ fees, the labeling of plaintiffs’ recovery in “redhibition” or in “products liability” appears to be of no significance. According to the well-established rule of Weber v. Fidelity & Gas. Ins. Co., 259 La. 599, 250 So.2d 754 (1971), in a products liability case a manufacturer has the obligation of producing a product reasonably safe for its intended use. A presumption of knowledge of the existence of the defect exists in these cases. In Philippe v. Brown ing Arms Co., 395 So.2d 310 (1981), on rehearing, the Louisiana Supreme Court, citing Weber, held that a breach of that obligation by the manufacturer entitles the purchaser not only to demand return of the purchase price, but also “to demand all damages caused by the defect and reasonable attorneys’ fees” because the manufacturer is “presumed to know of defects in its products... . ” (Citing LSA-C.C. Art. 2545); Rey v. Cuccia, 298 So.2d 840 (La.1974). The court stated that “no compelling reason” exists “to require” a person injured by a defective product to proceed either in contract (redhibition) or in tort (products liability).

The effect of the Philippe decision is to make no distinction, from an evidentiary standpoint, between a products liability case and a redhibition case on the question of knowledge of the existence of a defect. The Weber and Philippe cases presume knowledge (whether in redhibition or products liability) where a defect existed. However, LSA-C.C. Art. 2545, under the redhi-bition articles, appears to require a showing (as distinguished from a presumption) of knowledge. The presumption of knowledge in a redhibition case, pursuant to LSA-C.C. Art. 2530, applies only within three days following the purchase. Nonetheless, as we read Philippe, we conclude the Supreme Court has done away with the difference in the evidentiary requirements, i.e., the presumption of knowledge on the one hand in a products liability ease, and the proof of knowledge, on the other hand, in a redhibition case. Therefore, it is of no moment whether the evidence in Philippe established a redhibitory defect and no such showing was made in our ease, as claimed by Fleetwood.

Regarding the evidence of the presumption of knowledge of the defect, we point out that although the fire occurred from the defective converter approximately four months after purchase, the converter had been used only for approximately twelve days before the motor home was destroyed. Further, it is undisputed that Fleetwood installed the converter in the manufacture of the coach, and that no repairs were made either by plaintiff or Clearview to the converter at any time subsequent to the sale. Also, no showing was made that the converter was subjected to other than normal use. In the absence of proof that an independent cause resulted in the malfunction, we are led to conclude that a showing has been made that the manufacturer was presumed to have knowledge of the defect and plaintiffs are entitled to attorneys’ fees.

PLAINTIFFS’ APPEAL

Though not quarreling with the $28,634.26 awarded by the trial judge as restitution of the purchase price and repayment of the expenses of the sale, plaintiffs contend they are entitled to legal interest on the down payment made on the vehicle from the date of the sale. We agree.

According to the reasoning of our brothers in the First Circuit in Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976), a plaintiff is entitled to credit for the seller’s use of a down payment in order to restore the purchaser to the same position he was in prior to the sale. We are in agreement with that conclusion. Accordingly, we amend the judgment to provide legal interest on the sum of $4,903.05 from date of the sale, September 19, 1978, until paid; however, legal interest on all other sums awarded is to be paid from date of judicial demand.

Plaintiffs also contend that the $3,750.00 attorneys’ fee should be increased to the sum of $18,778.75. In support of their argument, plaintiffs have produced extensive and meticulous time and billing records in support of the increase.

Although we are cognizant of the trial court’s discretion in determining the amount of the attorneys’ fees to be awarded, considering the protracted nature of this particular case, the numerous conferences, the difficulty of the legal questions involved, and the time and effort expended in preparing for and participating in the trial as well as this appeal, we conclude that the amount awarded by the trial judge is inadequate and should be increased to the sum of $9,000.00.

We find no merit, however, to plaintiffs’ contention that an additional $1,961.10 should be awarded to J. Allen Bennett for his investigation and testimony concerning the cause of the fire. These expenses were charged by Bennett for work in anticipation of trial. Expenses incurred in preparing a lawsuit are not recoverable as damages. See Acme Steel Company v. A. J. Warehouse, Inc., 212 So.2d 271 (La.App. 4th Cir. 1968); Liberto v. Villard, 386 So.2d 930 (La.App. 3rd Cir. 1980). The trial judge properly disallowed this claim.

ALLSTATE’S APPEAL

We likewise find merit to Allstate’s contention that the $11,250.00 judgment in its favor against plaintiffs should be increased to the sum of $12,500.00. It is undisputed that Allstate paid the latter sum to plaintiffs in accordance with the policy provisions and became subrogated to plaintiffs’ rights. However, the trial judge erroneously awarded Allstate the sum of $11,250.00.

Accordingly, we increase the judgment in favor of Allstate from $11,250.00 to $12,-500.00.

GECC’S ANSWER TO APPEALS

Although contending the $11,387.40 judgment in its favor against plaintiffs should be affirmed in the principal amount, GECC argues the trial judge erred in awarding judicial interest instead of stipulated interest as provided for in the note.

In support of its position, GECC relies on LSA-R.S. 6:958(C) of the Louisiana Motor Vehicle Sales Finance Act, which provides, in pertinent part:

“C. If the maturity of any retail installment contract is accelerated for any reason and suit is filed, the obligation shall be credited with the same refund of the unearned finance charge as if prepayment in full had been made on the date of filing of suit, thereafter the obligation sued upon shall be deemed to bear a finance charge on the amount due not to exceed the rate previously charged on the obligation.... ”

As we interpret the statute, after the filing of suit, the unpaid obligation sued upon, having been credited with unearned finance charges, “. .. shall be deemed to bear a finance charge on the amount due not to exceed the rate previously charged on the obligation.” Accordingly, we amend the judgment to provide for interest on the amount awarded ($11,387.40) at the rate of 14.5% as provided for in the note and chattel mortgage, from the date of GECC’s intervention until paid.

CLEARVIEW’S ANSWER TO FLEETWOOD’S APPEAL

Finally, we find merit to Clearview’s claim for attorneys’ fees against Fleetwood.

Under the rationale of the Philippe decision, supra, we conclude Clearview, the innocent dealer, is entitled to relief under LSA-C.C. Art. 2545, as if plaintiffs had proved a redhibitory defect. The trial court’s finding Fleetwood solely liable to plaintiffs and the dismissal of their claim against Clearview constitute a refusal by the trial judge to impute to the dealer knowledge of the defect. We find no error. Accordingly, we conclude Clearview is entitled to attorneys’ fees. See C. T. Boudreaux Lbr. Co. v. Sherrwood Homes, 371 So.2d 326 (La.App. 4th Cir. 1979).

We deem an attorneys’ fee award of $5,000.00 to be adequate.

DECREE

For the foregoing reasons, we amend the judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the judgment in favor of plaintiffs, Mr. and Mrs. Hezzie Holden, and against defendant, Fleetwood Enterprises, Inc., in the amount of $28,634.26 is amended to provide that $4,903.05 of this amount shall bear legal interest from September 19, 1978 until paid, and the balance of the judgment shall bear legal interest from date of judicial demand until paid.

It is further ordered, adjudged and decreed that the judgment in favor of plaintiffs, Mr. & Mrs. Hezzie Holden, and against Fleetwood Enterprises, Inc., for attorneys’ fees in the amount of $3,750.00 is hereby amended and increased to the sum of $9,000.00, with interest from date of judicial demand until paid.

It is further ordered, adjudged and decreed that the judgment in favor of interve-nor, Allstate Insurance Company, and against Mr. and Mrs. Hezzie Holden, in the sum of $11,250.00 is amended and increased to the sum of $12,500.00, with legal interest from date of judicial demand.

It is further ordered, adjudged and decreed that the judgment in favor of interve-nor, General Electric Credit Corporation, and against Mr. and Mrs. Hezzie Holden, in the sum of $11,387.40 is amended to provide that the amount awarded shall bear interest at the rate of 14.5% from date of interve-nor’s judicial demand.

It is further ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Mr. and Mrs. Hezzie Holden, and against defendant, Fleetwood Enterprises, Inc. for the increased amount of interest for which Mr. and Mrs. Hezzie Holden have been cast in judgment to intervenor, General Electric Credit Corporation.

It is further ordered, adjudged and decreed that judgment be rendered in favor of Clearview Dodge Sales, Inc. and against Fleetwood Enterprises, Inc., for attorneys’ fees in the amount of $5,000.00, with interest from date of judicial demand until paid.

In all other respects, the judgment appealed from is affirmed. All costs of these proceedings are to be paid by defendant, Fleetwood Enterprises, Inc.

AMENDED AND AFFIRMED.

      . $28,634.26 equals the total sale price of $37,-698.50 minus $9,064.24 in unearned interest that was included in the price.

      . The monitoring panel is located at eye level forward of the rear dual wheels on the left side of the vehicle. This panel has water and gas gauges.

      . Although the Supreme Court decision in Philippe does not indicate how long after the purchase of the shotgun the injury occurred, the court of appeal opinion at 375 So.2d 151 (La.App. 2nd Cir. 1979), states that the shotgun with the defective safety mechanism was purchased in September, 1967 and the injury occurred on February 21, 1976.

      . See, for example, Segall Co., Inc. v. Rountree Olds Cadillac Co., Inc., 270 So.2d 629 (La.App. 2d Cir. 1972) where defendants’ experts testified that an overheating problem in a car probably resulted from the actions of a service station attendant in removing a radiator cap subsequent to the sale and pouring cool water into the radiator, causing the cylinder head to warp. See also, Rankin v. Blanchard, 349 So.2d 968 (La.App. 1st Cir. 1977) where a defect in an alternator pulley on a motor home could not have existed at the time of sale where testimony indicated that the defect was caused by the seller’s employees when they improperly tightened the alternator belt over ten months after the sale and expert testimony indicated it would have been impossible for the defect to have existed at the time of sale.

      . Plaintiffs’ attorney introduced a detailed statement of account as an exhibit. It reflects legal services on the case over a two-year period with fees and disbursements in excess of $7,000.00.
      Plaintiffs’ attorney also retained a New Orleans law firm as co-counsel in this multi-party litigation. According to a proffer of the firm’s billing records, the New Orleans firm logged 98.75 hours as of May 12, 1981, the time of trial, for a total fee of over $6,000.00. The record reflects several depositions, and numerous pre-trial hearings attended by both counsel.

      . The trial court’s error apparently arose from the deduction of the sum of $1,250.00 by plaintiffs’ attorney as his fee in negotiating settlement with Allstate on the policy. The sum of $11,250.00 was in turn paid to GECC and applied to plaintiffs’ unpaid balance of the purchase price of the motor home.