author:
LEMMON, Justice.
     WATSON, Justice, CALOGERO, Justice . WATSON, Justice,

text:
    In the Matter of the SUCCESSION OF Warren D. FARR.
    No. 82-C-2685.
    Supreme Court of Louisiana.
    May 23, 1983.
    On Rehearing April 2, 1984.
    Rehearing Denied May 7, 1984.
    Carlos G. Spaht, Kántrown, Spaht, Weaver & Walter, Baton Rouge, for applicant.
    Ashton L. Stewart, Stewart & Preis; Harvey H. Posner, Robert L. Roland, Watson, Blanche, Wilson & Posner; F.W. Middleton, Jr., Taylor, Porter, Brooks & Phillips; Charles H. Dameron, Durrett, Hardin, Hunter, Dameron & Fritchie; Paul M. Hebert, Jr., Gerald LeVan, Breazeale, Sachse & Wilson; Robert D. Hoover, John Dale Powers, Pamela C. Walker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for respondents.
   LEMMON, Justice.

This case involves the interpretation of the provisions of a last will and testament executed by Warren Farr on February 5, 1971. The specific dispute involves the ownership (after the trusts created in the will had terminated) of the shares of stock of General American Oil.

I.

In Article I of his five-page will, Farr left to his wife all of the furniture and corporeal movables in the family home (excluding stocks, bonds and cash) and all automobiles. In Article II (which contains the disputed dispositions), Farr made two dispositions in trust. In Paragraph 2.1, he left one-half of his property in a trust for his wife known as the Alice A. Farr Marital Trust. In Paragraph 2.3, he left the remainder of his estate, if his wife survived him, in a separate trust known as the Warren D. Farr Residuary Trust. In Paragraphs 2.4 and 2.5, he further named his wife as income beneficiary of the Residuary Trust and named various individuals and institutions as principal and successive income beneficiaries, designating some legacies as special (nine legacies of cash, one of immovable property, and one of the disputed stock shares) and some (in percentages of the remainder) as residual.

After Farr’s death in 1976, the succession was completed, and the court rendered a judgment of possession. When Mrs. Farr died in 1980, the Residuary Trust terminated under the provisions of the will. The trustee of the two trusts filed a petition for declaratory judgment, requesting a determination of the rights of the parties under the will. The petition incorporated two exhibits which proposed to distribute the principal of the trusts on the basis that one-half of the shares of General American Oil owned by Farr at his death were included in the Marital Trust and the other one-half of the shares were included in the Residuary Trust, so that the churches were each entitled only to 50% of one-half of the shares (or 25% each). The churches answered, asserting that each was entitled to 50% of the total shares under the plain wording of Paragraph 2.5 e and f. Legatees under Mrs. Farr’s will also filed answers and adopted the trustee’s proposal for distribution.

The matter was submitted on the records of the two succession proceedings, and the trial court rendered judgment declaring that one-half of the shares of General American Oil were included in the Marital ■ Trust, so that the churches were only entitled to divide the other one-half. The court of appeal affirmed. 421 So.2d 941. We granted certiorari. 423 So.2d 1259.

II.

In a dispute over the interpretation of a will, the court should endeavor to determine and carry out the intention of the testator. The court should view the will as a whole and should interpret the language so as to give effect, as far as possible, to every provision in the instrument. Carter v. Succession of Carter, 332 So.2d 439 (La.1976).

In the present dispute, it is impossible to carry out the will according to its literal terms because, as the trustee points out, the testator literally disposed of more than 100% of the oil stock. The churches contend, however, that while the bequest in Paragraph 2.3 is subject to more than one interpretation, the bequest to the churches in Paragraph 2.5 is not. The testator expressly provided in Paragraph 2.5 that each of the two churches, upon the termination of the trusts, was to receive one-half of the total number of shares that he owned at the time of his death, evidencing a clear intent that the churches would together receive the total number of shares of stock. This clear language, the churches argue, should be followed if the remainder of the will can be interpreted so as to give effect to all of its provisions.

Paragraph 2.1, considered alone, may be interpreted as incorporating into the marital trust one-half of each item of property owned by the testator at the time of his death. The provision may also be interpreted as an intention for the testator’s wife to receive one-half of the value of the entire estate at the time of the testator’s death, so that the Marital Trust might be composed of one-half of every item not specifically allocated elsewhere in the will, plus other property sufficient to make up one-half of the value of the entire estate. This interpretation would give full effect to Paragraph 2.1, as well as to Paragraphs 2.3 and 2.5, as long as there was sufficient property to complete the distribution.

The trustee disagrees, however, with this analysis, arguing that the testator clearly intended to bestow the utmost benefit upon his wife and that the churches’ interpretation was contrary to that intent. The trustee’s argument ignores the fact that the testator left his wife all of the income from both trusts, and the income during her lifetime was not affected by the identity of the principal beneficiary. Indeed, the fact that the testator specifically authorized the trustee in Paragraph 3.2 to invade the principal of the Marital Trust to fulfill the wife’s needs and specifically prohibited the trustee under any circumstances from using the principal of the Residuary Trust arguably evidences an intent that the oil stock be maintained intact for his revered churches.

An analysis of the drafting of the overall will also supports a conclusion that the testator intended for the churches to receive all of the shares of General American Oil stock.

The testator apparently experienced difficulty in expressing alternative provisions contingent upon whether his wife survived him or predeceased him. In Article II he provided for his wife’s survival, leaving her one-half of his property in trust and the income for life from the other half that passed to the second trust. The difficulty came in listing the special legacies (other than cash) that were to go to principal beneficiaries of the second trust. Although he had already willed one-half of all his property to the first trust, he willed specific immovable property and stock to certain principal beneficiaries in the second trust. The testator then in Article III provided for his wife’s prior death and willed all of his property to the special and residuary legatees named in Article II.

Thus (if we accept the churches’ interpretation of Paragraph 2.5), the testator intended that, while his wife would receive the income from all the succession property for life, the individuals and institutions listed in Paragraph 2.5 a through l would receive (eventually) the same amount of cash and the same properties, whether or not the testator’s wife survived him, and those listed in Paragraph 2.5 m would receive the same percentage of the residuum in either event (although the residuum, of course, would be different, depending on the order of death). The consistency of these alternative dispositions is an additional persuasive factor for concluding that the testator intended for the churches to receive all of the shares of General American Oil stock, whether or not his wife survived him.

The churches’ proposed distribution of the principal also fulfills every disposition expressed by the testator. The will qualified for the marital deduction, and his wife received all of the income from his succession property during her lifetime. His wife’s heirs and legatees will receive property (through the Marital Trust) which was valued at one-half of the total value of his estate at his death. The principal beneficiaries of the Residual Trust, who were designated by the testator as particular legatees, each will receive the full amount of the particular legacies (in cash or in property) stipulated in the will. The principal beneficiaries, who were designated as residual legatees, each will receive the stipulated percentages of the “remainder of the property” after distribution of the property necessary to complete the foregoing dispositions. The only parties affected by this interpretation of the ambiguous provisions of the will are the wife’s heirs and legatees, and they are affected only because of the phenomenal increase in the stock’s value after the testator’s death, an occurrence which the testator could not possibly have foreseen.

Accordingly, the judgments of the lower courts are reversed, and the case is remanded to the district court for rendition of a declaratory judgment in accordance with this opinion.

WATSON, J., dissents with reasons.

WATSON, Justice,

dissenting.

The majority errs in its interpretation of this will. Warren D. Farr predeceased his wife. The overriding concern expressed in his will is provision for that wife, Alice A. Farr. She was given the income of his entire estate and the right to bequeath one-half of the estate. The latter one-half of his property was put in the Alice A. Farr marital trust. As to the marital trust, the will states:

“My wife shall have the full and unrestricted right to bequeath her entire interest in favor of her estate or to whom ever she may see fit, and no person may divert any part of this to any other person than my wife.” (emphasis added)

Clearly, Mrs. Farr was not only given the income from the entire estate, but an unrestricted right to bequeath the property in the Alice A. Farr marital trust.

The other half of Farr’s property was put in the “Warren D. Farr Residuary Trust”. The two churches are named as “beneficiaries” only in connection with the residuary trust. Although the two churches claim fifty percent of the oil stock in the Alice A. Farr marital trust, it is clear from the language of the will as a whole that this was not the testator’s intention. While the enumeration of the residual beneficiaries provides that the churches shall have fifty percent of the total number of General American Oil shares owned at Farr’s death, this language must be read in context. The churches can not benefit from those assets which had previously been placed in the Alice A. Farr marital trust.

The majority errs in relying on the drafter’s careless use of words in delineating the number of shares to be given to the churches. The language of the will as a whole establishes that the word “total” refers to the number of shares in the Warren D. Farr residuary trust rather than the number of shares in the estate as a whole. The shares to go to the churches do not include those shares previously incorporated in the Alice A. Farr trust. The trial court and the court of appeal correctly interpreted the will. As the court of appeal stated:

“If only the ‘special’ dispositions were considered, it might be arguable that the testator intended each church to have 50% of all General American Oil shares at his death. Considering however, the language of the will in its entirety and, including particularly the disposition to the marital trust of one-half of ‘all my property’, it appears to us that Mr. Farr intended that all of his property, of whatever nature, whether community or separate, was to be included within that disposition. Moreover, the testator used the language ‘no person may divert any part of this to any other person than my wife.’ It is clear that Mr. Farr’s wife was to come first in his testament; all other dispositions were subject to her favored treatment, as indicated. To hold otherwise would be to completely ignore the language of the disposition to the marital trust, as well as the language of the will in its entirety, which clearly reflects the intent of the testator that his wife share in all property.” 421 So.2d at 946.
I respectfully dissent.

On Rehearing

CALOGERO, Justice .

The parties whose monetary interests are affected by the outcome of this case are two churches named in the will of Warren D. Farr, and five hospitals and the Recreation and Park Commission of the Parish of East Baton Rouge named in the will of Warren D. Farr’s widow, Alice A. Farr (these six entities will occasionally be referred to hereinafter as “the hospitals”).

The contest is over one-half of certain shares of stock in General American Oil, the separate property of Warren D. Farr, who died on April 21, 1976. All of the pertinent facts and the history of this litigation are amply set forth in the opinion of the Court of Appeal, Succession of Farr, 421 So.2d 941 (La.App. 1st Cir.1982), and in the opinion of this Court on original hearing. They will not be repeated in full here.

The dispositive question before us was, and is, whether Warren D. Farr left all the shares of his General American Oil stock to the two churches (one-half to each church), by naming them “principal beneficiaries and successive income beneficiaries” in a “Warren D. Farr Residuary Trust” and naming them legatees to all of the stock upon the death of Alice A. Farr and simultaneous termination of the Warren D. Farr Residuary Trust, or whether he left the two churches only one-half of the shares of the stock in this manner, having first, in the will, left one-half of those same shares to an “Alice A. Farr Marital Trust”. If it is the latter, then half of the shares vested, at the outset, in the Alice A. Farr Marital Trust, and upon the death of Alice A. Farr, devolved upon the hospitals Mrs. Farr designated in her will as her residuary legatees.

When first we heard this case we decided that the two churches should receive all, rather than just half of the shares of stock in General American Oil. We did so, attempting to give “full effect” to the disputed provisions of the will, and supported our decision with several plausible legal arguments. We concluded that when the testator first in his will left to the trustee for his wife Alice A. Farr, in the Alice A. Farr Marital Trust, “one-half (⅛) of all of my property, both movable and immovable and wherever located, owned at my death,” he intended that the trust for his wife receive one-half of the “value” of testator’s entire estate at the time of his death. We came to that conclusion as a means of making sense out of apparently ambiguous and conflicting provisions of the will. For, while Paragraph 2.1 did indeed first give Alice, in trust, one-half of all his property, Paragraph 2.5 seemed to give all the General American Oil stock to the two churches when it designated the two churches as principal beneficiaries and successive income beneficiaries of a second instituted “Warren D. Farr Residuary Trust”, each church to receive an asset described as “50% of the total number of shares of stock owned by me in General American Oil at my death.” Obviously if Warren were to predecease Alice, as did in fact later occur, the churches could not have all of this stock owned by Warren at his death, if by the same will in an earlier provision he has directed that one-half of that stock go to his wife’s marital trust, as to the assets of which by will Alice was to have “the full and unrestricted right to bequeath her entire interest”.

We granted a rehearing upon application of the trustee and the hospitals simply because we were not convinced that our original opinion, however well conceived and articulated, was correct. Rehearing applicants urged, among other arguments, that contrary to the opinion author’s assertion that his solution would give effect to all provisions of the will, there would not be sufficient assets available for distribution to the principal beneficiaries of the Residuary Trust. We were not especially impressed with that argument which we therefore will not expound upon here. Nevertheless, we did choose to reconsider the strong arguments espoused originally on behalf of the trustee and the hospitals.

Upon reconsideration we now determine that the resolution more in keeping with the intent of the testator and the language he employed in the will, is that the two churches should receive only one-half rather than all of the shares of stock in American General Oil.

One matter upon which we did not focus originally was Paragraph 3.1 of the will. That provision helps us to understand why the central ambiguity in the will came about in the first place. Farr at Paragraph 3.1 said that if my “wife [does not survive me, but rather] predecease[s] me, ... I will ... all of the property owned by me at the time of my death ... to the individuals and institutions named in the Warren D. Farr Residuary Trust in the amounts and properties and proportions and conditions therein set forth.” And, of course, therein, at Paragraph 2.5 under “Special,” he directed at subparagraphs e and / that each of the churches receive “50% of the total number of shares of stock owned by me in General American Oil at my death.” This language, half of all shares owned at my death to each of two churches, a disposition of the entirety of the shares, makes sense in the eventuality that Alice were to predecease Warren, for in that event all of the shares in General American Oil would at his death be owned by him (remember, this stock was separate property of Warren’s).

That same language does not, however, make sense in the first alternative, that Warren should die first. In that eventuality what he provided early on in the will was that his wife should receive all of his right, title and interest in certain corporeal movable property, excluding stocks, bonds and cash. Then he created an “Alice A. Farr Marital Trust” and named Louisiana National Bank of Baton'Rouge as trustee for his wife; and he willed to the bank as trustee for his wife “one-half (¾⅛) of all of my property both movable and immovable and wherever located, owned at my death.” Then at Paragraph 2.3 he also willed to the Louisiana National Bank of Baton Rouge as trustee “all of the residue and remainder of my estate of every nature and description and wherever located owned at my death in a separate trust to be known as the Warren D. Farr Residuary Trust.” With respect to that trust he named his wife Alice A. Farr the income beneficiary for her lifetime and dictated that such trust should terminate at Alice’s death. With respect to that trust he directed that the trustee “shall hold all of the remainder of my estate of every nature and description,” and he instituted as the principal beneficiaries and successive income beneficiaries the two churches and certain designated persons. He thereupon included the ambiguous language that “[t]he said beneficiaries (and heirs) shall take said property in the following amounts and proportions,” and listed in the immediately succeeding paragraph designated “Special” at e and f the two churches and the assets described as “50% of the total number of shares of stock owned by me in General American Oil at my death.”

The arguments which persuade us to rule as we now do are as follows.

First and foremost we are impressed with the intent of the testator, and that is to favor his wife above all else. He left his wife a full one-half of all of the property he owned at his death, admittedly in a trust, where she was the income and principal beneficiary. He provided in the will that “no person may divert any part of this to any other person than my wife.” He made sure that his wife would not have to pay any taxes by providing that the residuary legatees should pay all inheritance, estate or other taxes due upon his death. After giving his wife in trust half of all the property owned at his death he left only the “residue and remainder” to the residuary trust. And in Paragraph 2.5, with respect to the principal beneficiaries of this “residue and remainder” legacy, he recited that the beneficiaries “... shall take as special and residuary legatees of said trust funds ...,” and noted that the “said beneficiaries (and heirs) shall take said property in the following amounts and proportions ...” (emphasis added). “Said property” can only refer to the “residue and remainder”, and that “residue and remainder” included only one-half of the stock since the first legacy to the marital trust had already disposed of half of this stock.

In our original opinion we sought a means of reconciling the ambiguities in the will, and in so doing we read the testator’s outset bequest to his wife (“one-half (V2) of all my property) as being one-half of the value of the entire estate at the time of his death.

That simply cannot have been his intention we now determine, when the testator bequeathed for his wife “one-half (V2) of all of my property, both movable and immovable and wherever located, owned at my death.”

These constitute the reasons why we now conclude that the district court and the Court of Appeal were correct in their judgments in which they favored the hospitals by decreeing that they, and not the two churches, were entitled to the controverted one-half of the shares in General American Oil left by Warren D. Farr at his death. Warren Farr left these shares in trust to his wife, Alice A. Farr, and she in turn left them to the hospitals in her will.

Decree

Accordingly, the original opinion and judgment of this Court are reversed and the judgment of the district court and the Court of Appeal reinstated.

ORIGINAL OPINION REVERSED; JUDGMENTS OF DISTRICT COURT AND COURT OF APPEAL REINSTATED.

WATSON, J., concurs with reasons.

DENNIS, J., dissents being of the opinion that the original decision was correct.

BLANCHE, J., recused.

WATSON, Justice,

concurring.

The majority now resolves this matter as I have urged from the outset.

Therefore, I respectfully concur.

       The Honorable Lawrence A. Chehardy participated in this decision as an Associate Justice ad hoc in place of Associate Justice Fred A. Blanche, Jr., who was recused.

      . Article II provides as follows:
      "2.1 To the Louisiana National Bank of Baton Rouge, Louisiana, as Trustee for my wife, Alice A. Farr, I will one-half (½) of all of my property, both movable and immovable and wherever located, owned at my death.
      "2.2 This trust is to be known as the Alice A. Farr Marital Trust and all of the income from ■ this entire trust shall be paid to my wife during her lifetime annually, or, at the Trustee’s election, at more frequent intervals. My wife shall have the, full and unrestricted right to bequeath her entire interest in favor of her estate or to whomever she may see fit, and no person may divert any part of this to any other person than my wife.
      "2.3 If my wife, Alice A. Farr, survives me, then I will to Louisiana National Bank of Baton Rouge, Baton Rouge, Louisiana, as Trustee, all of the residue and remainder of my estate of every nature and description and wherever located owned at my death in a separate trust to be known as the Warren D. Farr Residuary Trust.

      “2.4 My wife, Alice A. Farr, shall be income beneficiary of the Warren D. Farr Residuary Trust for her lifetime. All trust income shall be payable to her at least annually or at the more frequent intervals as agreed between my wife and trustee.
      "2.5 The hereinafter listed individuals and institutions are instituted as the principal beneficiaries and successive income beneficiaries of said Warren D. Farr Residuary Trust, in which trust the trustee shall hold all of the remainder of my estate, of every nature and description, for said beneficiaries until the death of the said Alice A. Farr, at the happening of which event the Warren D. Farr Residuary Trust shall terminate and its assets distributed to said beneficiaries, who shall take as special and residuary legatees of said trust funds, the residuary legatees, however, being distributed any other property I might own at my death. The said beneficiaries (and heirs) shall take said property in the following amounts and proportions, provided, however, that any assets not specifically disposed of, or accuring as a result of the death of any beneficiary or legatee shall be allotted to the residuary legatees.
      “Special:
      “a. My nephew, Walter R. Farr $2,500.00
      “b. My grandniece, Mrs. Virginia S. Tantum 6,000.00
      “c. S. Warren Tantum 15,000.00
      “d. Julia Mae Arbour 4,000.00
      “e. The First Presbyterian Church, Cranbury, New Jersey, in honor of my father, David Farr, and my mother, Virginia Farr; my sister, Lillie Chamberlin, bom Lillie Farr, and her husband, Lewis Chamberlin. 50% of the total number of shares of stock owned by me in General American Oil at my death.
      “f. The First Presbyterian Church, Baton Rouge, Louisiana 50% of the total number of shares of stock owned by me in General American Oil at my death.
      “g. J. B. Arbour 1,500.00
      “h. Robert F. Arbour “i. To Sidney V. Arbour, Jr., 2020 Ramsey Drive, Baton Rouge, Louisiana, as principal beneficiary of the house, improvements, and lot at 2044 Elissale Street, Baton Rouge, La., being Lot No. 44, Zee Zee Gardens Subdivision, subject, however to the right of occupancy in favor of Mamie Smith who is presently occupying this house for as long as she pays twenty dollars ($20.00) per month rent to Sidney V. Arbour, Jr., said right to terminate at her death, or remarriage. 1,000.00
      “j. Mrs. Fred Hannaman 6,500.00
      “k. Eloise Selig 4,500.00
      “1. Mrs. Thelma Holladay 5,000.00

        “Residuary:
      “m. All of the remainder of the property owned by me at the time of my death of every kind and description and wherever located, including all my holdings in Standard Oil of New Jersey stock, stock dividends and other proceeds derived therefrom excluding the income therefrom to be used by the Trustee for the benefit of Alice A. Farr, is distributed and bequeathed to the following named principal beneficiaries and successive income beneficiaries in the following proportions:
      Warren David McNeely, 12%
      Kensington, Maryland Warren Lewis Task, 9%
      Miami, Florida Mrs. Simon M. McNeely 10%
      Kensington, Maryland Mrs. Ted Tomney, 10%
      Atlanta, Georgia Mrs. Everette Erickson, 10%
      Dayton, New Jersey David Farr, Buttonwood Farm, 9%
      Marlboro, New Jersey Mrs. Clarence Cambell, 9%
      Highstown, New Jersey Farr Chamberlin, 9%
      Cranbury, New Jersey Richard Christenson, 4%
      Edson, New Jersey Mrs. J. R. Peterson, 4%
      Vineland, New Jersey Lewis Chamberlin, Jr., 4%
      Princeton Junction, New Jersey Mrs. Florence Stults, 4%
      Cranbury, New Jersey Alex T. Farr, 6%’ Miami, Florida (Emphasis supplied.)

      . In Paragraph 2.2, Farr also made provisions which insured that the Marital Trust qualified for the marital deductions under the Internal Revenue Code.

      . In Article III, Farr made an alternative provision, in the event that his wife predeceased him, and willed all of his property "to the individuals and institutions named in the above Warren D. Farr Residuary Trust in the amounts and properties and proportions and conditions therein set forth.” He specified that the individuals and institutions listed under the heading Special "are named as special legatees of the properties and in the amounts set opposite their names above” and that the individuals listed under the heading Residuary “are named my residuary legatees in the proportions set opposite their names above”.

      . The shares were valued at 1167,000 at the time of Farr's death, but had increased in value to over $630,000 by the time of Mrs. Farr’s death.

      . It was not completely possible, however, to carry out the provision (at the time of the execution of the will) according to this interpretation, because the testator bequeathed certain movables in Paragraph 2.1 directly to his wife and not to the trustee.

      .Since the wife received all income from both trusts during her lifetime, the composition of the principal of each trust did not become significant until the trusts terminated, at which time the value of the oil stock had increased dramatically.

      . Paragraph 3.2 provides:
      "Trustee may use the principal of the Alice A. Farr Marital Trust created hereunder for the benefit of my wife, Alice A. Farr, in the event she shall be in need of funds to maintain a respectable standard of living in light of the standard of living enjoyed by her for the five years preceding my death, and to meet extraordinary medical or other expenses. In its determination whether or not to distribute principal, the outside resources of the beneficiary shall be taken into account. However, in no event shall trustee distribute principal from the Warren D. Farr Residuary Trust.”

      . These legacies were:
      1. The two churches, which were each to receive 50% of the General American Oil stock;
      2. Sidney Arbour, who was to receive the immovable property on Ramsey Drive; and
      3. The residuary legatees, who were to receive "all my holdings in Standard Oil of New Jersey stock", which was to be included in the remainder of the property.

      . Actually, because the immovable property described in Paragraph 2.5 i was community property, the testator could only will one-half of the property to the named legatee.

      . The testator, however, knew at the time of execution of the will that there was sufficient property to allocate one-half of the value of his estate to the Marital Trust without utilizing the General American Oil stock.

       Lawrence A. Chehardy, Justice ad hoc sitting for Associate Justice Fred A. Blanche, Jr.

      . First Presbyterian Church of Baton Rouge and First Presbyterian Church of Cranbury, New Jersey.

      . 1) Burden Memorial Hospital, Inc. for the use and benefit of the Ollie Steele Burden Manor, Baton Rouge, Louisiana,
      2) Our Lady of the Lake Hospital, Inc., Baton Rouge, Louisiana,
      3) Woman’s Hospital Foundation, Baton Rouge, Louisiana,
      4) Baton Rouge General Hospital, as trustee, in trust to provide for the health and welfare of its patients and their families, through the Baton Rouge General Hospital Auxiliary (Pink Ladies),
      5) Doctors Memorial Hospital, Inc., Baton Rouge, Louisiana, and
      6) Recreation and Park Commission of the Parish of East Baton Rouge, Louisiana.

      . All of the property of Warren D. Farr except the shares of General American Oil stock belonged at Farr’s death to the community of acquets and gains existing between Warren D. Farr and Alice A. Farr, his wife. Mr. Farr’s will was written on February 5, 1971. He died on April 21, 1976, and at that time the stock was valued at 1167,748.00. At the time of Mrs. Farr’s death on August 19, 1980, the stock was valued in excess of $630,000.00.

      . Paragraph 2.2 provides in part: ".... My wife shall have the full and unrestricted right to bequeath her entire interest in favor of her estate or to whomever she may see fit, and no person may divert any part of this to any other person than my wife.”

      . Paragraph 3.1 provides:
      3.1 Should, however, my wife, Alice A. Farr, predecease me, then and in that event, I will and bequeath all of the property owned by me at the time of my death, of every kind and description and wherever located, to the individuals and institutions named in the above Warren D. Farr Residuary Trust in the amounts and properties and proportions and conditions therein set forth....

      . Paragraph 5.3 reads: "Should there be any inheritance, estate or other taxes due upon my death, I wish such taxes to be paid by the residuary legatees and no such taxes shall be paid or borne in whole or in part by my wife, Alice A. Farr. However, should there he any inheritance, estate or other taxes due because of the inclusion of the proceeds of any life insurance policy in my estate, then I wish the named beneficiary of such policy or policies, if any, to pay the proportionate share of such tax by inclusion of such insurance proceeds in the computation of that tax.”


source: Caselaw Access Project

license: Public Domain

text:
    William R. LEBLANC v. Roger A. GUIDRY, Jr., et al.
    No. 84-C-0513.
    Supreme Court of Louisiana.
    April 23, 1984.
   ORDER

Pursuant to this Court’s authority to render any judgment which is just, legal and proper (La.C.C.P. art. 2164), the judgments of the Court of Appeal, 444 So.2d 738, and the district court are reversed and set aside. The case is remanded to the district court for retrial of the motion to set aside the release, with presentation of evidence and opportunity to preserve testimony by means of a transcript.

If the parties agree, and choose to do so, they may stipulate to the facts or, if appropriate, they may agree upon a narrative of facts on which to secure a new ruling of the district court, thereby facilitating an appeal, and permitting the Court of Appeal then to decide the case on its merits rather than upon procedural deficiencies.

MARCUS, BLANCHE and LEMMON, JJ., dissent.


author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Jerry WILMS.
    No. 82-KA-2236.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Louise Korns, William C. Credo, III, Steve Wimberly, Asst. Dist. Attys., for plaintiff-appellee.
    John Craft, New Orleans, Martha E. Sas-sone, Gretna, Indigent Defender Board, for defendant-appellee.
   DIXON, Chief Justice.

Jerry Wilms was charged with armed robbery, in violation of R.S. 14:64. He moved to suppress an inculpatory statement which he had given to police shortly after the incident. The trial court denied the motion. Wilms then pleaded guilty, reserving his right to appeal the ruling on the motion to suppress as set forth in State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced him to serve seven years at hard labor without benefit of parole, probation or suspension of sentence.

On the night of December 15, 1981 two men were robbed at gunpoint of $2071.25 at a Roy Rogers Restaurant in Jefferson Parish. Wilms and two others were apprehended by police as they fled toward their van which was parked in a nearby Delchamps parking lot. Wilms’ wife, Cyn-di, and another woman were in the van and were also arrested. They were given their Miranda rights and taken to the police station.

According to Wilms and Cyndi, a police officer hit Cyndi in the stomach and kicked her as she was climbing into the police van. Wilms testified that the officers tossed Cyndi around “like a rag doll.” Cyndi was two and one-half months pregnant at the time. The state did not call any of the arresting officers as witnesses.

At the station, Sergeant Balser was put in charge of the interrogation. After talking to the other suspects, he interviewed Wilms. Wilms told him that Cyndi was pregnant and that an arresting officer had hit her in the stomach. Balser then brought Cyndi in. She said she was bleeding and in pain. A female guard also told Balser that Cyndi needed medical attention.

Balser then permitted Wilms and Cyndi to confer with one another. Afterward, they indicated they were willing to give a statement. At 2:00 a.m. Wilms signed a waiver of rights form and gave Balser a six page statement. At 3:19 a.m. Cyndi signed a waiver form and gave a statement. Wilms implicated himself and denied that Cyndi knew of the robbery. Cyndi likewise denied any knowledge of the robbery.

At 7:30 a.m. Cyndi was examined in the medical office of the Jefferson Parish prison. She was “spotting” and bleeding. She miscarried eight days later.

Balser denied that he made any threats or promises in return for the two statements. Wilms, however, testified that Bal-ser told him that he would see what he could do about getting Cyndi to a doctor. Wilms and Cyndi also testified that Balser told them that a judge would “likely” be more lenient with Wilms and would let Cyndi go if their stories matched. Wilms contends that his inculpatory statement was therefore involuntary due to the “promises of the police to be light on him, the promises to release his wife, and the fear that his pregnant wife, already injured, would be further jeopardized and their baby lost.”

Before the state may introduce a confession into evidence it has the burden to prove beyond a reasonable doubt that the statement was “free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” R.S. 15:451; C.Cr.P. 703(D); State v. Neslo, 433 So.2d 73, 80 (La.1983). The state must specifically rebut a defendant’s allegations of police misconduct in procuring the statement. State v. Neslo, supra. The question of voluntariness of a confession, including a determination of the defendant’s state of mind, must be resolved from the facts and circumstances of the particular case. State v. Serrato, 424 So.2d 214, 221 (La.1982). In addition, the trial judge’s conclusions as to the credibility of witnesses are accorded great weight by this court in reviewing rulings on admissibility. State v. Neslo, supra.

Where the alleged threat concerns someone other than the defendant, “[fjear that police will inflict additional harm on another has been recognized as a substantial factor in determining the voluntary nature of the confession.” State v. Johnson, 363 So.2d 684, 686 (La.1978). See also State v. Williams, 383 So.2d 369, 371-72 (La.1980), where this court considered but rejected the defendant’s claim that his confession was involuntary because he heard his wife crying in the next room.

In State v. Johnson, supra, the defendant contended that his confession was involuntary because he was afraid police would continue to beat a co-defendant and beat Johnson, himself, if he did not confess. In analyzing the situation, we focused the inquiry on whether the beating of the co-defendant actually occurred and whether the defendant actually believed that the beatings would continue if he did not confess. State v. Johnson, supra, at 686. Faced with a choice between believing the police and believing the defendants, we deferred to the trial judge’s conclusions as to credibility and held the statement admissible.

In the present case the trial judge did not assign written or oral reasons. Wilms and Cyndi contended at trial that Balser made an implied promise to get medical attention for Cyndi and an express promise of leniency for Wilms and of Cyn-di's release in exchange for their statements. Balser denied making any such promises or threats. The trial judge may well have decided to believe Balser and disbelieve the Wilms story. In light of the great weight accorded his conclusions as to credibility, we could affirm on this basis alone.

However, the trial judge may also have concluded that Balser did make such remarks to Wilms but that such remarks were insufficient to render the statement inadmissible. If so, his decision must likewise be affirmed.

There is no doubt based on the present record that Cyndi Wilms was inexcusably struck in the stomach by an arresting officer. The state did not call any witnesses to specifically rebut the allegations of police misconduct. The state’s only witness did not even make a general disclaimer. Bal-ser was not at the arrest scene and did not know what happened there.

Neither Wilms nor his wife testified, however, that they were afraid of further misconduct once they arrived at the station. Wilms’ fear was that Cyndi would not receive medical attention. Wilms expressed this fear to Balser. Balser told Wilms he would see what he could do. He did not predicate medical services on the giving of a statement.

Wilms contends, however, that such an implication became clear when Balser then brought Cyndi in and told them that a judge would likely be lenient with Wilms and would let Cyndi go if their stories matched. Logically, such a promise makes sense only if Wilms had already claimed that his wife had nothing to do with the robbery. This occurred before Balser spoke with Cyndi. Balser allowed them to confer. Some fifteen minutes later, they indicated they were willing to give statements. Balser testified that Cyndi did not appear to be in pain, and it was already late. He indicated to them that he still had to see about a doctor and would go ahead and take the statements.

Wilms was no doubt concerned about his wife and experienced psychological pressure in this regard. However, he was no doubt also feeling pressure as a result of being apprehended in front of a restaurant as a suspect in an armed robbery. One of his companions had a gun. The eyewitnesses were there. This was Wilms’ first felony. Moreover, he probably felt responsible for having exposed his wife and child to such a risk.

Wilms testified that he and his wife discussed their options, including whether they wanted an attorney. They decided that neither had any reason to lie, according to Wilms. Both are high school graduates. He served in the army. As revealed in colloquys with the judge and on cross-examination, Wilms knew his rights and waived them. Under the circumstances, the trial judge may well have concluded that Wilms’ choice to give a statement was knowing and deliberate rather than a result of his belief that his wife would not otherwise receive medical attention. As for promises, if Balser made them, they were under these circumstances “more likely musings not much beyond what this defendant might well have concluded for himself.” State v. Petterway, 403 So.2d 1157, 1160 (La.1981). See also State v. Dison, 396 So.2d 1254 (La.1981).

Accordingly, Wilms’ conviction and sentence are affirmed.

DENNIS, J., dissents for the reasons assigned by LEMMON, J.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

This case presents precisely the type of police conduct that decisions such as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were designed to eliminate. First, according to unrebut-ted evidence, one policeman hit defendant’s pregnant wife in the stomach. Then, a second policeman withheld medical attention for over eight hours until her husband had given a confession, although he was well aware (by his own admission) that she needed medical attention.

Our approving the validity of defendant’s confession under these circumstances not only encourages such abusive conduct, but also departs from any commonsense view of “voluntariness”.

I would order the confession suppressed.

      . It matters little whether the injury to defendant’s wife was accidental or intentional, or even justified. The officer who took defendant’s statement was aware of the need for medical attention and of defendant’s concern for his wife's well-being, and the officer’s pressing on with the interrogation under these circumstances undercut any voluntariness on defendant’s part.

      . Since this is a Crosby review of a motion to suppress the confession, the case has not yet gone to trial on the merits. At this stage, the dispute over the admissibility of the confession appears to be academic, since defendant was virtually caught in the act of a crime to which there were several eyewitnesses.


text:
    STATE of Louisiana v. Edward J. TALBERT.
    No. 82-KA-2771.
    Supreme Court of Louisiana.
    April 2, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Madeleine Slaughter, Asst. Dist. Attys., for plaintiff-appellee.
    Calvin Johnson, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Edward J. Talbert was charged with possession of a controlled dangerous ■ substance in violation of R.S. 40:969. The trial judge, without reasons, orally denied Talbert’s motion to suppress the evidence seized in Talbert’s presence at the time of arrest. Talbert then pleaded guilty, reserving his right to appeal the ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to three years at hard labor. He appeals and assigns as error the denial of his motion to suppress. We agree and reverse.

At the hearing on the motion to suppress, the only witness was Officer Gregory Elder, one of three arresting officers. The transcript is eight pages long. Elder testified that he and officers McNeil and Taplin were in a police car on Philip Street in New Orleans on October 26, 1979. As they approached 2812 Philip Street, they saw two men standing in the doorway at the bottom of the steps to an apartment. The men had the screen door open to the outside; the wooden door was open to the inside and led directly into a one room apartment. The two steps into the apartment were on the sidewalk.

One of the men was Talbert. He had something wrapped in brown paper in his hand. According to Elder, Talbert looked surprised when he saw the officers in the police car. He then turned, ran into the house and threw the object wrapped in brown paper inside as he entered the house. The other man, Slade, lived in the apartment.

McNeil, the driver of the car, upon seeing Talbert go inside, stopped the car and ran past Slade into the apartment. Slade followed. Elder and Taplin joined them. Beside Talbert was the piece of brown paper, a hypodermic syringe, and two tablets of talwin and pyribenzemine (“T’s and blues”).

A warrantless search and seizure is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Hernandez, 410 So.2d 1381, 1383 (La.1982). The burden of proof is upon the state to affirmatively show that one of the exceptions applies. C.Cr.P. 703D; State v. Hernandez, supra.

To justify the seizure of the evidence in this case, the state argues that the officers had probable cause to arrest Talbert when they saw him look surprised, throw the object wrapped in brown paper inside, and then go inside himself. According to the state’s brief, “exigent circumstances” then permitted the police to enter the house without consent or a warrant. See State v. Hathaway, 411 So.2d 1074, 1079-80 (La.1982). The officers therefore had a legitimate right to be in the apartment, and the “plain view” exception applies to justify the warrantless seizure of the evidence next to Talbert. See State v. Sanders, 374 So.2d 1186, 1188-89 (La.1979).

In this case the state has not met its burden to affirmatively show that one of the exceptions is applicable. The state’s argument fails because there was no probable cause to arrest when the officers first saw Slade and Talbert outside Slade’s apartment. Probable cause to arrest exists when the facts and circumstances known to the officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Arceneaux, 425 So.2d 740 (La.1983). Plight alone is not sufficient; even where flight reasonably appears designed to avoid apprehension, probable cause does not arise unless it is combined with other information upon which officers are entitled to rely which would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit. State v. Hathaway, supra, at 1079; State v. Franklin, 353 So.2d 1315, 1319 (La.1977).

Talbert’s surprised look and retreat into the apartment are the only facts in the present record upon which the officers could have determined that probable cause to arrest existed. As stated by Officer Elder on cross-examination, the officers were not there because of a tip, nor did they have any information indicating that a crime was being committed in the area. Elder saw no exchange. Although Elder testified that he could not tell from the car what was wrapped inside the paper, he believed it to be contraband. No other facts were adduced which would support this conclusion. There simply are no other facts in this record which one could combine with Talbert’s flight to indicate to a reasonable person that a crime was being committed. See State v. Ranker, 343 So.2d 189, 192-93 (La.1977).

Since the officers had no probable cause to arrest Talbert, their intrusion into a private apartment cannot be justified by exigent circumstances. To permit such an intrusion into a constitutionally protected area without a warrant, the officers must have both probable cause and exigent circumstances. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); State v. Hathaway, supra, at 1079-80; State v. Franklin, supra, at 1319. Since the initial intrusion was illegal, the police, when they spotted the contraband next to Talbert, were not in a place where they had a right to be, and the plain view exception cannot apply. See State v. Sanders, supra, at 1188-89.

The state has therefore failed to show that the warrantless seizure in this case falls within one of the narrowly drawn exceptions. The trial judge erred in denying Talbert’s motion.

Accordingly, the ruling of the court below on Talbert’s motion to suppress the evidence is reversed and the motion to suppress is granted; his guilty plea, conviction and sentence are vacated, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

When the police first observed defendant in possession of an object wrapped in brown paper, they had no reason to suspect any criminal activity. However, when defendant, immediately upon noticing the police car, ran up the steps of the residence and threw the object inside, defendant’s combined acts of fleeing the scene and hiding the package would have led a reasonable person to believe that the package contained drugs, stolen goods or other contraband that he did not want the police to discover. Such activity simply was not consistent with innocence.

In my opinion, there was probable cause to seize the package, and exigent circumstances required the police to enter the residence to make a limited evidentiary search.

      . Even though Talbert did not reside in the apartment, he nevertheless has standing as a person “adversely affected" to contest the legaiity of the search and seizure. La. Const, art. 1, § 5 (1974); State v. Culotta, 343 So.2d 977 (La.1976).


author: DIXON, Chief Justice.

text:
    Gladys Virginia OWENS, Karen Lee Owens and Linda Ruth Owens v. Bob MARTIN, George Barker, Otto Sherman, A.G. Root and XYZ Executive Officers of Crown Zellerbach Corporation, Bogalusa, Louisiana.
    No. 83-C-1347.
    Supreme Court of Louisiana.
    April 2, 1984.

      Michael A. Britt, Leach & Paysse, New Orleans, for applicant.
    William Joseph Cleveland, Slaughter, for respondent.
   DIXON, Chief Justice.

In March, 1981 Mrs. Gladys Virginia Owens and her two major children filed suit against executive officers of Crown Zeller-bach. They sought to recover for injuries allegedly suffered by their decedent, Earnest E. Owens, due to his exposure to asbestos during the course of his employment at Crown Zellerbach’s plant in Boga-lusa. They also sought to recover for their own loss due to Owens’ alleged wrongful death.

The defendants filed a motion for summary judgment, asserting that R.S. 23:1032 of the Louisiana Workmen’s Compensation Act, as amended by Acts 1976, No. 147, was plaintiff's exclusive remedy and barred the suit. The trial court granted the motion. The court of appeal affirmed as to the wrongful death action but reversed and remanded as to the survival action. 430 So.2d 1248 (La.App.1983). Defendants alone sought review. The wrongful death action is therefore not before this court. As to the survival issue, we affirm and remand for further proceedings.

Although defendants have styled their motion as one for summary judgment, neither they nor plaintiffs have supported or opposed the motion with affidavits in compliance with C.C.P. 966-67. No discovery has taken place. The record contains only pleadings and briefs. In reality, the case is presented to us as if on an exception of no cause of action in which the defendants assert the 1976 amendment as an affirmative defense to allegations of the plaintiffs, and we treat it as such. Cf. Haskins v. Clary, 346 So.2d 193 (La.1977). Such an exception attacks the legal sufficiency of the petition, and all well pleaded allegations are accepted as true. Haskins v. Clary, supra.

In plaintiffs’ petition, the following pertinent allegations are made. Plaintiffs are the widow and major children of the decedent Earnest E. Owens. From 1947-1963, defendants were executive officers of Crown Zellerbach at its plant in Bogalusa. They had a duty to provide Owens with a safe place to work and to warn him of any dangers associated with working with asbestos. During this same period, Owens worked at the plant as an asbestos man. This required him to handle large quantities of asbestos and exposed him to asbestos dust and fibers. As a result of this exposure, he contracted asbestosis and died from that disease on June 27, 1980.

Based on these allegations, plaintiffs assert the cause of action Owens would have had if he had survived. Guidry v. Theriot, 377 So.2d 319, 322-25 (La.1979). The action is based on this court’s holding in Canter v. Koehring Co., 283 So.2d 716 (La.1973), that an injured worker could sue executive officers of his employer in negligence in addition to his workmen’s compensation remedy against his employer. Defendants counter that Act 147 of 1976 amended R.S. 23:1032 to bar such suits against executive officers as of October 1, 1976. Bazley v. Tortorich, 397 So.2d 475 (La.1981). Plaintiffs reply that the 1976 amendment is substantive in nature and applies prospectively only. See Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979). They argue that the cause of action arose prior to 1976; therefore, the 1976 amendment may not be asserted to bar the present suit.

The merit of defendants’ motion therefore depends on a determination of when Owens’ cause of action (hence plaintiffs’ survival action) accrued.

In Seals v. Morris, 410 So.2d 715, 718 (La.1982), this court recognized that the elements of a cause of action based on negligence under C.C. 2315-16 are fault, causation and damages. In discussing the meaning of res judicata in Louisiana, the court has also stated that a cause of action is “the state of facts which gives a party a right to judicially assert an action.” Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350, 353 (La.1975). Damages are necessarily included in this state of facts. Fault alone is not sufficient. Damages alone (in a negligence action) are not sufficient. Both are needed (along with a causal link between the negligent act and the damage complained of) in order for a cause of action to exist. Jones v. Texas & Pacific Ry. Co., 125 La. 542, 544, 51 So. 582, 583 (1910); Lucas v. Commercial Union Insurance Co., 198 So.2d 560, 564-65 (La. App.1967).

The element of damages as a necessary requirement in a negligence action is also implied by C.C. 3492, effective January 1, 1984:

“Delictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day injury or damage is sustained.”

This article is based on C.C. 3536-37, prior to January 1, 1984:

“The following actions are also prescribed by one year:
That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.” C.C. 3536.
“The prescription mentioned in the preceding article runs:
And in the other cases from that on which the injurious words, disturbance or damage were sustained.” C.C. 3537.

Since prescription cannot commence until damages are sustained, a cause of action does not accrue until that time.

When a court can reasonably do so, it should maintain the petition so as to afford a litigant an opportunity to present his evidence. Haskins v. Clary, supra. When an exception of no cause of action is based on an affirmative defense, the exception must be overruled “unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based.” Haskins v. Clary, supra at 195. Plaintiffs’ petition in this case does not exclude the possibility that Mr. Owens began to suffer damage prior to October 1, 1976, even though it does not specifically allege it. As in Haskins, this may make it subject to an exception of vagueness, but it is not fatal to the petition. At this stage of the proceeding it is not possible to conclude that the 1976 act bars plaintiffs’ action. It is impossible to say when damages occurred sufficient to give rise to a cause of action without additional fact finding below.

Accordingly, the judgment of the court of appeal is affirmed, 'and the case is remanded to the district court for further proceedings consistent with the views herein expressed.

MARCUS, J., concurs in the result.

LEMMON, J., concurs.

      . The statement in Lee v. City of Baton Rouge, 243 La. 850, 859, 147 So.2d 868, 871 (1962), that the allegations of the petition must be considered as true for the purposes of ruling on a motion for summary judgment is incorrect. C.C.P. 966-67 set forth the applicable tests.

      . The 1976 act does not, however, bar suits for intentional torts against a plaintiff’s "employer, or any officer, director, stockholder, partner or employee of such employer." R.S. 23:1032; Bazley v. Tortorich, supra.

      . In Jones v. Texas & Pacific Ry. Co., supra, defendant’s locomotive struck two of plaintiff’s mules. One died immediately; the other survived a flesh wound and appeared to be on its way to recovery. Two months later, however, it died. Within a year from its death, plaintiff filed suit for its loss. Defendant interposed a plea of prescription, arguing that the damage was sustained at the time of the negligent act and that under C.C. 3537 (C.C. 3492, as amended by Acts 1983, No. 173, eff. Jan. 1, 1984) prescription begins to run when the damages are sustained. In rejecting this claim, the court said; "... In law, things which are not susceptible of ascertainment are considered as not existing. ... Until by the death of the mule the damage had been revealed, or, to use the legal term, had been made certain, plaintiff had no cause of action for it. Until then, it was at best uncertain, contingent, speculative ...” Jones v. Texas & Pacific Ry. Co., 125 La. at 544-45, 51 So. at 583. (Emphasis added).
      The statement in Guidry v. Theriot, supra, 377 So.2d at 322 that the survival action comes into existence "simultaneously with the commission of the tort,” is therefore too broad in that it assumes that the negligent act and the manifestation of damage were contemporaneous. The point in Guidry was to distinguish the survival action from the wrongful death action.

      . Once damages are sustained and the cause of action accrues, then the doctrine of "contra non valentem agere non currit prescriptio” may apply to suspend the running of prescription. Although C.C. 3467-72 express a codal disfavor toward suspension of prescription, the jurisprudence has nevertheless recognized the doctrine of contra non valentem as "a limited exception where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues." Corsey v. The State of Louisiana, Through the Department of Corrections, 375 So.2d 1319, 1321 (La.1979). (Emphasis added). In its fourth and most modern version, as recognized in Corsey, the doctrine applies:
      ”... Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. (This principle will not except the plaintiff’s claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.... ” Corsey v. The State of Louisiana, Through the Department of Corrections, supra at 1322. (Emphasis added).
      As the emphasized passages make clear, contra non valentem applies to suspend the running of prescription on a cause of action already accrued. Before prescription can run or be suspended, there must be a cause of action, that is, the elements of a negligence cause of action (fault, causation and damages) must exist. There is no need to invoke the doctrine where the damage does not occur until some time after the negligent act. In that case, the code itself provides that prescription does not commence until the damage is sustained. C.C. 3492 (C.C. 3536-37 prior to January 1, 1984); Jones v. Texas & Pacific Ry. Co., supra, 125 La. at 547, 51 So. at 583-84; Lucas v. Commercial Union Insurance Co., supra. In the present case, it is possible that Mr. Owens suffered damage prior to 1976; yet, even though “reasonably diligent,” he did not become aware of his cause of action against defendants until the disease was diagnosed in 1980. In such a case, contra non valentem would apply to suspend the running of prescription during the period between the initial damages and the diagnosis.

      . In Quick v. Murphy Oil Co., 446 So.2d 775 (La.App.1984), writs denied, 447 So.2d 1074 (La.1984), the plaintiff worked around asbestos from 1955 until 1980 when he was diagnosed as having asbestosis. He filed an executive officers’ suit, alleging his cause of action arose prior to 1976. The court of appeal, on rehearing, rejected the notion that the cause of action arose with each exposure because exposure does not inevitably result in disease. It also rejected the idea that there was no cause of action until the manifestation of symptoms and disability. The court chose, instead, the more realistic theory that the cause of action arose at the time of “contraction." Although difficult to ascertain, the time of contracting the disease could, within limits, be determined by medical experts. In denying writs, we stated:
      "Writ denied. The result, remanding the case to the district court for further proceedings, is correct. We decline, however, to express an opinion at this stage of the proceeding as to whether the date of ’contraction’ can be established with sufficient legal certainty to hold that the cause of action arises at that time. Such a determination necessarily requires expert testimony explaining how such time, or period of time, can be established. Until such a record is before the court, the issue cannot be fairly resolved. See Owens v. Martin, 449 So.2d 448 (La.1984).’’


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Mack O. DAVIS.
    No. 82-KA-2055.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., Paul D. White, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Stephen E. Everett, Alexandria, for defendant-appellant.
   CALOGERO, Justice.

Defendant Mack O. Davis was charged by bill of information with two counts of armed robbery, in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged on each count. He was thereafter sentenced to fifty years imprisonment at hard labor for each offense, the sentences to run consecutively.

On appeal originally, this Court affirmed defendant’s conviction, but upon finding serious errors in the pre-sentencing investigation report and little or no articulation of the reasons relied on by the trial judge in imposing such apparently severe sentences, we vacated the sentences and remanded the case to the district court for resentenc-ing in accordance with law. State v. Davis, 414 So.2d 1246 (La.1982).

On June 4, 1982, the trial judge again imposed a sentence of fifty years imprisonment at hard labor without benefit of parole, probation or suspension of sentence on each count, to run consecutively. Defendant again appeals, arguing that the consecutive penalties imposed by the trial court are excessive.

La. Const, art. I, § 20 prohibits the imposition by law of excessive punishment. This Court has, therefore, held that the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment; that right is enforceable by this Court on appellate review. State v. Smith, 437 So.2d 252 (La.1983); State v. Telsee, 425 So.2d 1251 (La.1983). See also, State v. Williams, 397 So.2d 1287 (La.1981). A punishment is considered constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Telsee, supra; State v. Sims, 410 So.2d 1082 (La.1982); State v. Beavers, 382 So.2d 943 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). The trial court’s reasons in imposing sentence, as required by La.C.Cr.P. art. 894.1, are an important aid to this Court in reviewing an allegedly excessive sentence. State v. Telsee, supra; State v. Sepulvado, 367 So.2d 762 (La.1979). A trial judge is given wide discretion in the imposition of sentences within statutory limits; the sentence imposed by the trial court should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Smith, supra; State v. Washington, 414 So.2d 313 (La.1982).

The record of sentencing should indicate that the trial court has considered not only the circumstances militating for incarceration, but also any mitigating factors. State v. Walker; 414 So.2d 1245 (La.1982). In State v. Gulden, 399 So.2d 194, 200 (La.1981), U.S. cert denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305, this Court noted that “[w]hile the trial judge need not articulate every aggravating and mitigating circumstance presented in La.C. Cr.P. Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” La.C.Cr.P. art. 894.1(C) requires the trial court additionally to state the factual basis for its sentencing conclusions. “Without the trial court’s articulation of the factual basis of each ground which influenced its disposition, a sentence may appear to be arbitrary or excessive, unless there is evidence elsewhere of record which clearly illumines the sentencing choice.” State v. Williams, 397 So.2d 1287, 1292 (La.1981), resentencing affirmed, 414 So.2d 371 (La.1982).

In the instant case, at the resentenc-ing of defendant ordered by this Court because of inadequate articulation of the reasons to support an apparently excessive sentence, the trial court again imposed the identical sentence without much elaboration on its reasons for doing so. The court again relied principally upon defendant’s second offender status. The same pre-sen-tence investigation report, with errors (as pointed out when we first considered this case, 414 So.2d at 1247), was again relied on and filed of record in the resentencing proceedings. Other than that, the trial court simply noted the circumstances of the crime. From this limited, and in part inaccurate, information, the trial court concluded that probation (if it would have been statutorily possible) would not be appropriate. The court then, without further articulation of reasons, jumped to the determination that fifty year sentences were appropriate and that the two sentences should run consecutively rather than concurrently.

While the trial court was certainly justified, based on the above information of record, in concluding that probation was inappropriate, the record before us does not support the trial court’s unexplained conclusion that a fifty year sentence for each count, the sentences to run consecutively, was appropriate.

To the contrary, the record shows that the defendant was only seventeen years old at the time the offenses were committed. He was one participant among three or four others in the commission of the offenses. There is serious question raised as to whether this defendant actually was one of the perpetrators who was armed. The victims were not physically injured. Defendant voluntarily gave a statement to the police concerning the incidents, which made the state’s case against him (for there was little other evidence) and assisted the police officers in making a case against some of the other perpetrators. Additionally the offenses were, for the most part, based on a common transaction, warranting concurrent sentences rather than consecutive ones. La.C.Cr.P. art. 883. Admittedly, defendant was on probation following an earlier guilty plea to simple burglary. But, that fact alone does not warrant the imposition of a one-hundred year sentence on a seventeen year old.

The record is devoid of any indication that the trial court considered the defendant’s personal history, his mental and emotional health, or his potential for rehabilitation. Additionally, some of the information in the pre-sentence investigation report that was considered was inaccurate. Thus, the record simply does not reflect that the trial court adequately considered the guidelines set out in La.C.Cr.P. art. 894.1 in particularizing the sentence to the defendant. See State v. Grey, 408 So.2d 1239 (La.1982); State v. Gulden, supra. Absent such record evidence to support the sentence, this 100 year sentence (two consecutive 50 year sentences), imposed on such a young offender, is excessive.

Therefore, although we are well aware of the fact that this defendant’s sentences have already once been set aside, we nonetheless again vacate the sentences imposed and remand the case for resentencing in accordance with La.C.Cr.P. art. 894.1.

Decree

Defendant’s two fifty year consecutive sentences are vacated and the case is remanded for resentencing.

      . The Court is also aware of the fact that the judge who twice sentenced defendant to 100 years imprisonment has now retired and the case will be reconsidered by his successor.


author:
MARCUS, Justice.
      DIXON, Chief Justice

text:
    Prince A. WILLIAMS, on Behalf of his Minor Son, Mark L. WILLIAMS v. Jack KUSHNER, Drs. Jack Kushner and Herman R. Cohen, A Professional Medical Corporation, and Sherman Bernard in His Capacity as Commissioner of Insurance For the State of Louisiana.
    No. 83-CA-2466.
    Supreme Court of Louisiana.
    April 2, 1984.
    Ammon L. Miller, Jr., Joseph W. Thomas, New Orleans, for plaintiff-appellee.
    Harold A. Thomas, Donna L. Yukna, Edward F. Downing, III, Adams & Reese, New Orleans, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Ronald C. Davis and Lois C. Davis, Asst. Attys. Gen., for defendant-appellants.
   MARCUS, Justice.

The issue in this medical malpractice action is whether a claimant who has agreed with the defendant doctor to a settlement for the limit of his liability ($100,000) is entitled to a jury determination of the excess amount of damages recoverable from the Louisiana Patient’s Compensation Fund. From a judgment declaring La.R.S. 40:1299.44(C)(5), La.R.S. 13:5105 and La. Code Civ.P. art. 1732 unconstitutional, the commissioner of insurance appeals.

Prince A. Williams, on behalf of his minor son Mark L. Williams, instituted this proceeding in the district court against Dr. Jack Kushner and others. He alleged that Dr. Kushner committed acts of medical malpractice in the delivery of his son, causing the permanent and total loss of use of Mark’s right arm. Trial by jury was demanded. Prior to trial, Mr. Williams settled with Dr. Kushner for $100,000, his maximum statutory liability, with full reservation of rights to obtain excess damages from the Patient’s Compensation Fund. The commissioner of insurance in his capacity as administrator of the Fund moved to strike the demand for a jury trial. Finding that La.R.S. 40:1299.44(C)(5), La.R.S. 13:5105 and La.Code Civ.P. art. 1732 prohibit a jury trial against the Fund, the trial judge declared these statutes unconstitutional on equal protection grounds and, accordingly, denied the motion to strike.

PATIENT’S COMPENSATION FUND

The Patient’s Compensation Fund is established and regulated by La.R.S. 40:1299.44 as a special fund for the benefit of successful medical malpractice claimants who are entitled to damages in excess of the health care provider’s maximum statutory liability of $100,000. In order to provide monies for the Fund, an annual surcharge set by the Louisiana Insurance Rating Commission is levied on all qualified health care providers. These funds are paid into the state treasury and credited initially to the Bond Security and Redemption Fund. If the funds are not allocated to pay obligations secured by the full faith and credit of the state due and payable within any fiscal year, the treasurer transfers the total amount of the surcharges to the Patient’s Compensation Fund. This is a special fund in the state treasury, characterized by statute as a “budget unit of this state.” The amount in the Fund may be used only as specified by La.R.S. 40:1299.-44. The insurance commissioner collects the monies and administers the Fund while the attorney general protects and defends it. The clerk of the Louisiana Supreme Court is also entitled to expenses from the Fund for use in selecting the list of attorney names from which the choice of the Attorney Chairman of the Medical Review Panels is to be made. The legislature is authorized to appropriate from the Fund sufficient monies to pay the expenses of the commissioner, attorney general and clerk of the supreme court incurred in carrying out these duties. All remaining funds are to be used to discharge qualified claims. If the Fund would be exhausted by payment in full of all claims allowed during a calendar year, the amount paid to each claimant is prorated and any amount left unpaid is paid in the following calendar years.

There are three types of qualified claims against the Fund: (1) a final judgment in excess of one hundred thousand dollars against a health care provider; (2) a court approved settlement in excess of one hundred thousand dollars against a health care provider; or (3) a final award in excess of one hundred thousand dollars in an arbitration proceeding against a health care provider. Upon submission of a certified copy of one of the above to the insurance commissioner, he files a request with the state treasurer who issues a warrant in the amount of the claim.

If the insurer of a health care provider or a self-insured health care provider (hereinafter insurer) agrees to settle its liability and the claimant is demanding an excess amount from the Fund, the claimant files a petition with the court in which the action is pending against the health care provider seeking approval of the settlement and/or demanding payment of damages from the Fund. A copy of this petition is served on the insurance commissioner, the health care provider and his insurer. At the hearing, the commissioner, the claimant and the insurer may introduce evidence to enable the court to determine whether the petition should be approved. If the commissioner and the insurer cannot agree with the claimant on the amount, if any, to be paid out of the Fund, then the court determines the amount of the claimant’s damages in excess of the amount already paid by the insurer. A settlement approved by the court is not appealable, but a judgment of the court fixing damages in a contested proceeding is appealable pursuant to the rules governing appeals in any other civil court case tried by the court.

STATUTORY RIGHT TO TRIAL BY JURY

La.Code Civ.P. arts. 1731 and 1732 deal with the right to trial by jury in all civil cases and the limitations on that right. In pertinent part, these articles provide:

Art. 1731(A): “Except as limited by Article 1732, the right to trial by jury is recognized.”
Art. 1732: “A trial by jury shall not be available in:
(6) All cases where a jury trial is specifically denied by law.”

We have held that, under this statutory scheme, there is a right to trial by jury in all civil cases unless this right has been expressly denied by law. Jones v. City of Kenner, 338 So.2d 606 (La.1976); Champagne v. American Southern Insurance Co., 295 So.2d 437 (La.1974). Hence, the initial inquiry is whether a law specifically denies a medical malpractice claimant who has settled with the insurer the right to trial by jury on the amount of damages recoverable from the Fund.

There is no such prohibition in the medical malpractice act. The section dealing with settlement mechanics, La.R.S. 40:1299.44(0), does not specify whether a judge or jury shall determine the amount of post-settlement damages. It provides merely that “the court” shall set the amount of damages in excess of the amount already paid by the insurer. Nowhere in the act is there a directive that this reference to “the court” should mean either a judge or jury. It could be that “the court” is synonymous with the trier of fact. Oearly, the ambiguous reference to “the court” in the medical malpractice act is insufficient to deprive a claimant of a jury trial.

Similarly, there is no prohibition against a jury determination of post-settlement damages in La.R.S. 13:5105. This statute provides: “No suit against the state or a state agency or political subdivision shall be tried by jury.” Because a suit under the medical malpractice act is against the health care provider and not against the Fund, an alleged state agency, La.R.S. 13:5105 is inapplicable. From the inception to the conclusion of a medical malpractice proceeding, the action is against only the health care provider. See Forstall v. Hotel Dieu Hospital, 429 So.2d 213 (La.App. 4th Cir.), writ denied, 433 So.2d 1054 (La.1983). La.R.S. 40:1299.47(A)(1) provides that all “malpractice claims against health care providers” (emphasis added) shall first be reviewed by a medical review panel. If, after an agreement to a settlement, the claimant demands an excess amount from the Fund, a petition is filed by the claimant in the “court in which the action is pending against the health care provider.” Id. § 1299.44(C)(1) (emphasis added). La.R.S. 40:1299.44(B) provides that the only claim against the Fund shall be a request by the commissioner after he receives a certified copy of a final judgment, court approved settlement or final award in an arbitration proceeding “in excess of one hundred thousand dollars against a health care provider” (emphasis added). Hence, the only party defendant contemplated by the medical malpractice act is the health care provider. The Fund is not specified as a party defendant against whom the action can be brought under the act. If the legislature had intended that the Fund may be a party defendant, it could have so provided as it has done in numerous statutes involving suits against other alleged state agencies, state officers or political subdivisions. See, e.g., La.R.S. 18:1402 (election contests); La. R.S. 23:1634 (unemployment compensation); La.R.S. 40:62 & 68 (birth certificates); La. R.S. 49:461 (suits against state ministerial officers). Therefore, a medical malpractice action is not a suit against the Fund, and La.R.S. 13:5105 is inapplicable. Because of this holding, we do'not reach whether the Fund is a state agency within the definition of La.R.S. 13:5102(A).

As there are no laws that expressly deny a medical malpractice claimant a jury trial on the amount of post-settlement damages recoverable from the Patient’s^ Compensation Fund, the claimant is statutorily entitled to trial by jury. Because of this ruling, we do not reach the constitutionality of La.R.S. 40:1299.44(0(5), La.R.S. 13:5105 and La.Code Civ.P. art. 1732.

DECREE

For the reasons assigned, the ruling of the trial judge declaring La.R.S. 40:1299.-44(C)(5), La.R.S. 13:5105 and La.Code Civ.P. art. 1732 unconstitutional is vacated and the judgment denying the motion to strike the demand for a jury trial is affirmed. The case is remanded to the district court for further proceedings in accordance with law.

DIXON, C.J., concurs with reasons.

LEMMON, J., concurs for reasons assigned by DIXON, C.J.

DIXON, Chief Justice

(concurring).

I respectfully concur.

The denial of a request to strike a demand for a trial by jury is an interlocutory judgment. Interlocutory judgments may be appealed only upon a showing of irreparable harm. C.C.P. 2083. Irreparable harm in such cases occurs whenever the error of a ruling by a trial court cannot, as a practical matter, be corrected on an appeal of a final judgment. Herlitz Construction Co. v. Hotel Investors of New Iberia, 396 So.2d 878 n. 1 (La.1981) (per curiam). An appeal of a final judgment cannot cure the defect of forcing a party to conduct his trial before a jury when that party has a right to be free from a jury trial. Conversely, an appellate court cannot cure the error of denying a party his right to a jury, since an appellate court, although it can decide the case, cannot sit as a jury and respond as a jury would. The court of appeal could only order a new trial, which would be a tremendous waste of judicial resources. There is a statutory right to appeal such irreparable errors. C.C.P. 2083.

For these reasons, the appeal of the interlocutory judgment which declared the statutes in question to be unconstitutional and ordered the trial to proceed before a jury is properly before this court.

      . The trial judge actually declared unconstitutional art. 1733. This article was renumbered by 1983 Acts, No. 534 and now appears as art. 1732.

      . The insurance commissioner obtained an order from the trial judge for a suspensive appeal directly to this court. Because the judgment declaring the statutes unconstitutional and denying the motion to strike the demand for a jury trial is not a final judgment, there is no right of direct appeal to this court under La. Const, art. 5, section 5(D). However, by treating the appeal as an application for a writ, we choose to retain the matter under the supervisory jurisdiction of this court. See Derouen v. Kolb, 397 So.2d 791 (La.1981); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381 (La.1978); Everett v. Goldman, 359 So.2d 1256 (La.1978).

      . A health care provider is defined by La.R.S. 40:1299.41(A)(1) as "a person, corporation, facility or institution licensed by this state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist or psychologist, or an officer, employee or agent thereof acting in the course and scope of his employment."

      . La.R.S. 40:1299.44(A)(2)

      . Id. § 1299.44(A)(1)

      . Id. § 1299.44(A)(5)

      . Id. § 1299.44(A)(1)

      . Id. § 1299.44(A)(5)

      . Id. § 1299.44(A)(7)

      . Id. § 1299.44(B)

      . Id. § 1299.44(C)

      . Id. § 1299.44(C)(2)

      . Id. § 1299.44(C)(5)

      . Id. § 1299.44(C)(6)

      . Nevertheless, in this case, the commissioner of insurance in his capacity as administrator of the Fund was made one of the party defendants. Since the medical malpractice act authorizes suit against only the health care provider, the petition fails to state a cause of action against the Fund. La.Code Civ.P. art. 927.

      . The status of the Fund after a settlement between the claimant and the health care provider is more in the nature of a statutory inter-venor rather than a party defendant. The Fund is similar to an intervenor in that it is a third person who has an interest in the proceedings between the claimant and the health care provider because any damages in excess of $100,-000 are payable from the Fund. Just as an intervenor may do, the Fund may put on evidence and unite with the defendant in resisting the claimant’s demand. Compare La.R.S. 40:1299.44(C)(3) & (C)(5) with La.Code Civ.P. art. 1091(2). Also both an intervenor and the Fund may appeal a judgment of the court in a contested proceeding. Compare La.R.S. 40:1299.44(C)(6) with La.Code Civ.P. arts. 2082 & 2086. Finally, neither an intervenor nor the Fund may object to the form of the action; both take the proceedings as they find them. Official Revision Comments, La.Code Civ.P. art. 1094. Hence, the position of the Fund is more closely analogous to an intervenor than to a party defendant.


author: DENNIS, Justice.

text:
    Richard ROBERTSON v. SCANIO PRODUCE & INSTITUTIONAL FOODS, INC. et al.
    No. 83-C-2009.
    Supreme Court of Louisiana.
    April 2, 1984.

      Edmond J. Harris, Heisler & Wysocki, New Orleans, for plaintiff-applicant.
    John Robert Sarpy, Porteous, Hainkel, Johnson, Sarpy, New Orleans, for defendants-respondents.
   DENNIS, Justice.

In this worker compensation case, the work-related accident and the worker’s subsequent disability are undisputed; the issue is whether there was a causal relationship between them. The trial court found that there was none and the court of appeal affirmed. We reverse. The causal relationship between a work accident and an employee’s disability may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. In evaluating the evidence, the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record furnishing a sound reason for its rejection. The employee’s uncontradicted testimony, which was objectively corroborated by medical and circumstantial evidence, furnished grounds for such an inference that was not rebutted by the employer’s evidence.

Facts

Richard Robertson was injured on December 24, 1980 when he tripped and approximately 300 pounds of frozen chicken fell on top of him at a Popeye’s fried chicken outlet. This accident occurred during Robertson’s employment with defendant Scanio Produce & Institutional Foods, Inc. As a result of this mishap Robertson complained of lower back pain, was hospitalized and placed in traction. An orthopedic surgeon, Dr. L. Thomas Cashio, treated Robertson during the period following the accident and based solely on x-rays diagnosed a lumbar strain. Neither a myelo-gram nor any other diagnostic test was ordered or performed. Robertson was released from the hospital on January 14, 1981 despite continued complaints of pain at the fifth lumbar vertebra, or L-5 level of his back, and on January 22 Cashio told his patient that he could return to work but was restricted to light activity. Robertson’s unrebutted testimony at trial was that he returned to Scanio but was refused further employment because there was no “light duty” available. The employee continued to see the doctor during February with reports of pain, yet, on February 19 the physician released Robertson to return to normal work. Worker compensation benefits which had been paid since the initial accident claim, were terminated the following day. On March 17, Robertson filed suit against Scanio and its insurer, State Farm Fire & Casualty Co., for reinstatement of benefits, medical expenses and statutory penalties. Two days later Robertson visited Dr. Cashio for the last time. Dr. Cashio prescribed muscle relaxers and advised the patient to continue to increase his level of activity despite continuing pain and suggested that he wear a soft corset for back support. On the same day, Robertson’s supervisor at Scanio told him, “I can’t use you because you’ll just go out and hurt yourself again.”

Between his rejection by Scanio and his next medical treatment eleven and a half months later, Robertson held three jobs and performed a temporary roof repair assignment, all of which required some heavy manual labor. He testified at trial that he left each of these jobs after a matter of weeks because his pain either prevented him from working or kept him from arriving on time. He stated that he experienced pain with heavy exertion, but the pain diminished with reduced activity. He explained that he had taken these jobs, despite his pain, to provide for his wife and children. Further, Robertson testified that he was limited to manual labor because his education had ended with the seventh grade. His difficulty in reading exhibits submitted to him during his testimony indicated that he was virtually illiterate. He stated that he suffered no other back injuries during his work at the subsequent jobs and that he filed no other worker compensation claims. In order to be hired for later jobs Robertson underwent two pre-employment physicals. He admitted that in reporting his medical history he purposefully concealed his previous injury in order to enhance his chances of obtaining work. During cross examination defense counsel questioned Robertson concerning his failure to seek medical assistance after his last visit to Dr. Cashio. Robertson responded that he was without funds to pay a doctor after defendants had stopped paying his medical expenses. He claimed that he was unaware free medical treatment for his condition could be obtained at state expense. The witness maintained throughout his testimony that he had followed Dr. Ca-shio’s instructions to try to work, and that he continued to report his pain to his attorney and others. In addition to his testimony, Robertson stated in his answers to interrogatories filed on July 16, 1981 that he had complained of pain since the accident, six months earlier, that he was still totally disabled, and that after the doctor told him to perform light work he still experienced substantial pain upon exertion.

Robertson was next treated in March 1982 by neurosurgeon Dr. David M. Jar-rott, whom he consulted on the recommendation of his second attorney. The first attorney, who filed this suit, left the law-firm which continued to represent Robertson.

Dr. Jarrott noted Robertson’s history of back pain and then took a myelogram which proved negative. Because Robertson was still experiencing pain Jarrott suggested surgery or another less drastic diagnostic procedure, a discogram. Dr. Jarrott testified that a significant number of physicians still rely on discograms, but that this test is no longer in vogue, owing in part to the popularity of myelograms. Robertson opted for the discogram. The surgeon interpreted the discogram to show a rupture at the L5-S1 disc level, the point at which Robertson had experienced pain immediately following his accident at Popeye’s. Dr. Jarrott operated and discovered a herniated disc.

Pertinent Legal Principles

The plaintiff in a worker compensation suit must establish by a preponderance of evidence that the injury sustained was caused by the accident at issue. Martin v. Zachry, 424 So.2d 1002 (La.1982); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Absent proof of an intervening cause, a claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, and symptoms of the disabling condition commenced at the time of the accident and continuously manifested themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). See also, Guillory v. USF & G, 420 So.2d 119 (La.1982); 3 Larson, The Law of Workmen’s Compensation, § 80.33(d) (1983 ed.) (discussing Louisiana’s treatment of this presumption and similar presumptions recognized in West Virginia and Hawaii).

The presumption of causation is not irrebuttable, rather when established, its effect is to shift the burden of proof to the defendant. Haughton v. Fireman’s Fund American Insurance Co., 355 So.2d 927 (La.1978).

In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, where the record indicates no sound reason for its rejection. West v. Bayou Vista, supra at 1147; Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937).

Testimony at Trial

At trial Robertson relied primarily on his own testimony that the onset of his continual pain coincided with his undisputed work accident at Popeye’s and on Dr. Jarrott’s testimony that the herniated disc discovered during surgery was causally related to the work accident. Dr. Jarrott stated that he pursued his chosen course of treatment partially in response to his patient’s report of continued pain, his description of how that pain waxed and waned with work assignments and the location of the discomfort. The doctor concluded that his initial diagnosis was borne out by his findings during surgery.

The defense based its case on the testimony of Dr. Cashio who treated Robertson soon after the accident for a lumbar sprain. Dr. Cashio testified that he detected no indication of an injury more serious than a lumbar strain; specifically, since Robertson did not complain of leg pain there was no reason to suspect the presence of nerve root irritation which is indicative of a disc injury. Dr. Cashio was not asked to speculate as to the cause of the herniated disc which was discovered fourteen months later.

Dr. Robert L. Applebaum, a neurosurgeon who did not examine or treat Robertson, was called by the employer and testified that, based on his examination of Dr. Cashio’s medical records including x-rays and the myelogram and discogram performed by Dr. Jarrott, it was his opinion that the employee could have sustained his herniated disc on one of the later jobs. Dr. Applebaum also testified, however, that his skepticism that the accident at issue caused the herniated disc was due to the absence of any medical treatment from the time Dr. Cashio released Robertson until a year later when Dr. Jarrott first examined the employee. In response to the judge’s questioning Dr. Applebaum admitted that it was reasonable to believe that the disc injury related back to the accident at Popeye’s if Robertson’s complaints of persistent pain could be believed. Defendants failed to present testimony from any witness such as persons who worked with Robertson after his Scanio accident, casting doubt on his claims of continual pain. In fact, defendants presented no direct evidence whatsoever tending to prove an intervening accident between the employee’s work accident and his herniated disc removal operation.

The trial court essentially found that the plaintiff’s uncontradicted testimony did not prove that the employee’s herniated disc was causally related to his work accident, for reasons we find insufficient. The court of appeal noted the trial court’s reasons for refusing to accept the plaintiff’s uncontra-dicted testimony of the work-accident. Without applying the principle announced by this court in West v. Bayou Vista Manner, 371 So.2d 1146 (La.1979), although it was cited in the plaintiff’s court of appeal brief, the court of appeal affirmed the trial court’s dismissal of the claim.

We granted certiorari, 441 So.2d 768 (La.1983) because the intermediate court failed to review the plaintiff’s contentions, which indicated that, under applicable legal principles, the trial court erred in refusing to accept the employee’s uncontradicted testimony proving the accident, corroborated by medical evidence and circumstances which proved an ensuing disability without an intervening cause.

Application of Legal Precepts

It is evident that the plaintiff presented his own uncontradicted testimony establishing a presumption that his disability resulted from his work accident, and that the defendants failed to produce any direct evidence of an intervening cause to rebut the presumption. Accordingly, unless there is a sound reason in the record to reject the plaintiffs testimony, he is entitled to compensation.

The trial court refused to accept the plaintiffs testimony on grounds which are purely collateral to the issues in this lawsuit. Succinctly, the three reasons given in the court’s opinion were: plaintiff lied about his previous medical history in order to get a job to feed his wife and children; he stated he did not know that state subsidized medical attention was available for his back injury; and he did not call as a witness the first attorney who commenced handling his case.

In our opinion these do not constitute sound reasons for rejecting the uncontra-dicted testimony of the plaintiff and the surgeon who removed a herniated disc from his back. Plaintiffs out of court misrepresentations of his physical condition for the purpose of earning a livelihood for his family simply do not warrant disbelief of all his sworn testimony in a court of law. It does not necessarily follow that, because a man falsified his health record to obtain employment, he would commit perjury. Nor does it follow from Robertson’s testimony that he did not know whether the state would furnish free medical treatment for his back injury. Although this court has general knowledge of the function of our state hospital system, it frankly is not certain of the answer to this question in the precise case of Robertson’s compensable accident injury. Finally, Robertson had no reason and certainly no duty to call his initial attorney as a witness. The trial court suggested this individual could testify as to whether the plaintiff complained to him about back pain during pertinent times. This evidence would have been admissible only as rehabilitation or support evidence in the event Robertson’s testimony in this regard had been contradicted or he had otherwise been impeached. McCormick, Law of Evidence § 49 (2nd ed. 1972); 4 Wigmore, Evidence §§ 1122 et seq. (Chadbourn rev. 1972). Since neither impeachment nor contradiction occurred, Robertson was not entitled to introduce such evidence. Therefore, his failure to do so was in accord with law and cannot be held against him.

Conclusion

We hold that Robertson carried his burden of proof that the injury sustained while working at Popeye’s, an injury stipulated to by defendants, was the cause of his continued pain from the time of the accident until his surgery when his complaints were corroborated by the presence of a herniated disc. Since defendants did not sufficiently rebut the presumption of causation favoring Robertson’s case by introducing any direct or circumstantial proof of an intervening injury, we reverse the courts below and order that compensation benefits be reinstated retroactive to the date they were curtailed and that all associated medical expenses incurred be reimbursed.

REVERSED.

LEMMON, J., dissents and will assign reasons.