author: BOWES, Judge. KLIEBERT, Judge. BOWES, Judge,

text:
    Benjamin B. MATHEWS v. Vicki Fisk MATHEWS.
    No. 83-CA-518.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    On Rehearing Nov. 13, 1984.

      Robert C. Lowe, Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for plaintiff/appellee.
    Michael A. McNulty, Jr., John A. Hollis-ter, McNulty, O’Connor, Stakelum & Anderson; John M. Standridge, and Dennis J. Krystek, New Orleans, for defendant/appellant.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   BOWES, Judge.

Defendant has appealed from a judgment of the District Court: (1) finding mutual fault in granting a separation a mensa et thoro; (2) decreeing a divorce a vinculo matrimonii; and (3) awarding custody of the minor child of the marriage to both parents jointly, making them co-tutors. We affirm in part, reverse in part, and amend in part the trial court’s judgment for the reasons set forth hereinafter.

Plaintiff Benjamin Matthews filed a petition for separation from bed and board in March, 1981, alleging cruel treatment by the defendant but specifying no particular acts by his wife. Mrs. Matthews reconvened, also alleging cruelty on the part of her husband in various particulars. Custody of the minor child was granted to the defendant, with enumerated visitation rights given to plaintiff. Various rules and motions were filed, but the allegations in the separation were not tried. In April, 1982, plaintiff filed a petition for divorce, based on living separate and apart; defendant filed a denial and re-alleged fault as in the separation.

Trial was held over a period of several days. At the conclusion, the court held that a preponderance of the evidence showed that Mrs. Mathews was guilty of adultery with two named men and probably so with a third man. The Court also held that Mr. Mathews’ fault consisted of indifference and inattention toward defendant and lack of interest in her career, amounting to mental cruelty. Joint custody of Robin was granted as the trial judge found that “Mrs. Mathews’ extra-marital affairs did not have a deleterious effect on Robin.” A joint custody planning guide was ordered by the court.

Defendant’s appeal alleges three errors: that the finding that appellant was guilty of adultery was clearly erroneous and an abuse of discretion; that the award of joint custody was reversible error; and that the support award was inadequate and the Court was erroneous in not granting alimony. Plaintiff-appellee did not appeal, so the finding of fault of the trial court is final as to him.

We note at the outset that the trial judge erred in granting a separation a mensa et thoro and a divorce a vinculo matrimonii in the same judgment. Plaintiff initially filed suit for separation alleging cruelty; he subsequently filed another suit for divorce based on having lived separate and apart from his wife. The two actions, separation and divorce, carry distinctly different effects. Divorce dissolves matrimonial bonds; separation only serves to end conjugal cohabitation, the community of ac-quests and gains, and common concerns which previously existed. La.C.C. art. 136. By filing a new petition for divorce on different grounds and praying for different relief, plaintiff abandoned his first cause of action. See Pepe v. Drouant, 311 So.2d 582 (La.App. 1st Cir.1975). By alleging fault on the part of defendant, plaintiff preserved his right to litigate fault for the purpose of barring post-divorce alimony.

The defendant did not reconvene for divorce but answered, praying that the divorce petition be dismissed; in the alternative, she prayed that the divorce judgment declare her to be free from fault. She re-alleged cruel treatment as initially stated in her separation suit, but did not pray for a judgment of separation in her answer.

It is evident that the issue before the trial court was the divorce, and the issues to be decided were (1) whether grounds for the divorce existed based on the parties living separate and apart and (2) whether either party was at fault so as to bar permanent alimony. The trial court obviously intended this result in its judgment. However, since the separation action was no longer before the court as of the filing of the action for divorce (which was based on different grounds), it was error to grant a separation.

The evidence offered by appellee to prove adultery was basically in three parts. The testimony of Roy Mouras was clear and unambiguous in that he claimed to have had sexual relations with the defendant many times at her home, her mother’s house, and several other places during 1979-1980. Mrs. Mathews denied the same. However, Mouras’ testimony was bolstered, so to speak, by his accurate memory which allowed him to diagram at the trial, some two years later, and apparently with very substantial correctness, the layout of the bedroom of Mrs. Mathews in her home, a feat we deem impossible to someone who had not been there often. Certainly his testimony was believable and convincing and the astute trial judge cannot be found erroneous if he chose to believe him.

Mrs. Melka (“Didi”) Walker, a friend (or, at least, a former friend) of Mrs. Mathews, testified that the defendant admitted to having had sexual intercourse with Doug Jennings during the period of her marriage. Mrs. Mathews denied both the affair itself and having admitted it to Mrs. Walker. Further testimony by Mrs. Walker revealed that she and the defendant had been very close friends, conversing with and apparently confiding in each other on many, many occasions. Taken as a whole, the testimony of “Didi” Walker literally smoked from the fire of many incriminating statements and inculpatory innuendos confided to her by Mrs. Mathews. Again, we cannot find error on the part of the trial judge who evaluated the live witnesses, if he found guilt of adultery in this testimony. Finally, the plaintiff presented two private detectives who testified relative to their surveillance of the defendant, and of several “dates” or meetings that she had with Doug Jennings and James Olsen at various places (and with Olsen in his home). Although this testimony contained some flaws, it offered additional proof of Mrs. Mathews’ remaining alone “behind closed doors” with other men, for hours at a time, late at night and in the early morning. These habitual clandestine rendevous, combined with the other evidence outlined above, establish a pattern of behavior which, taken in its entirety, tend to negate any other reasonable conclusion but that defendant was committing adultery.

We are aware of the cases which hold that being alone with a person of the opposite sex, even overnight, does not give rise to a presumption of adultery. However, we have not based our finding only on Mrs. Mathews’ “keeping company” with other men, but on the plethora of evidence which clusters together to form the picture which the trial judge saw, that of an unfaithful wife.

While the evidence as to the defendant’s adultery may not be completely overwhelming, it is not necessary to prove adultery beyond the shadow of a doubt. To do so would require photographs of the parties in the sexual act. A party must establish by circumstantial evidence facts which lead reasonably to the conclusion that adultery has been committed and exclude all other reasonable hypothesis of innocence. See Morrison v. Morrison, 316 So.2d 453 (La.App. 3rd Cir.1975), Writ denied 322 So.2d 772 (La.1975), which we quote as follows:

The appellant argues that the trial judge did not apply the proper standard of proof in this case ... The appellee argues that a standard of proof requiring overwhelming evidence of the commission of adultery is a far greater burden than that presently placed on the plaintiff in an adultery case by the jurisprudence. He submits that the only proof of adultery which would be overwhelming would be photographs of the parties in the act of intercourse.

... The jurisprudence of this state is to the effect that when circumstantial evidence is used to establish adultery, a prima facie ease may be made out by showing facts or circumstances that lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. Coston v. Coston, 196 La. 1095, 200 So. 474 (1941). The proof must be so convincing as to exclude all other reasonable hypothesis but that of guilt of adultery. Daigle v. Daigle, 222 So.2d 318 (La.App. 1st Cir.1969).

In connection with the discussion of this issue, we note the great weight which is given to the trial judge’s findings of fact in Louisiana. The language found in the opinion of Justice Tate in Canter v. Koehring Co., et al, 283 So.2d 716 (La.1973) is pertinent at this point.

‘When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, on review the appellate court should not disturb this factual finding in the absence of manifest error.’
Applying Canter to the present case we must give great weight to the factual conclusions of the trial judge as to the commission of adultery. There was a conflict in the testimony in this case. Furthermore, we find that the evaluations of credibility and the inferences of fact on the part of the trial judge were entirely reasonable. Finding no manifest error on the part of the trial judge, we affirm his finding that adultery was committed by the appellant_ Id. at 457.

We agree with and adopt the rationale set out above in Morrison. Applying that rationale to the conflict of evidence in this case, it is evident that the trial judge decided that the husband did introduce circumstantial evidence of facts leading reasonably to the conclusion that adultery had been committed and excluding all other reasonable hypothesis of innocence. Following the rationale of Morrison, supra, we cannot say that he erred.

We, therefore, affirm the finding of the trial court that Mrs. Matthews was guilty of adultery for the purpose of denying permanent alimony.

In determining the right to post-divorce alimony, our courts have held:

Fault for purposes of permanent alimony preclusion is synonymous with the fault grounds for separation and divorce under LSA-C.C. Articles 138 and 139_
The wife bears the burden of proving her freedom from fault in order to be entitled to alimony following divorce. Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3rd Cir.1981).

We find that Mrs. Mathews did not carry the burden of proof thus imposed upon her. Further, since Mr. Matthews did not appeal and the finding of fault is final as to him, it is clear that both parties were at fault in the separation and continuous living apart, and the resultant divorce. Consequently, both parties are precluded from receiving permanent alimony.

In our determinations above, we have not considered the taped telephone conversations between Mrs. Mathews and Didi Walker for any purpose other than impeachment of Mrs. Mathews. Tape recordings may be admissible as prior inconsistent statements, and their admission into evidence for this limited purpose was not error. Arseneaux v. Arseneaux, 417 So.2d 856 (La.App. 4th Cir.1982).

Further, we hold that the joint custody provisions of Civil Code article 146 are applicable in the present case. Defendant argues that since the separation took place prior to the effective date of Article 146, as amended, (the effective date is January 1, 1983), that the prior article should apply and she should be granted sole custody. Article 146 addresses itself to suits “yet pending and undecided.” The last date of this trial was January 19, 1983. The judgment was rendered and signed on February 2, 1983. Therefore, article 146, as amended, is applicable, and we affirm the award of joint custody.

With regard to the award of $400.00 for child support, the comprehensive household expense list submitted by Mrs. Mathews seems reasonable to this Court. Allowing only for Robin’s pro rata share of rent, utilities, etc., we have calculated an expense of approximately $700.00 per month for the child’s living expenses. Civil Code articles 227 and 231 state that both parents have the obligation of supporting their children in proportion to their means. The degree of support is determined by the need of the child and the ability of those who are to pay it. Ducote v. Ducote, 339 So.2d 835 (La.1976). In the present case, Mr. Mathews testified that his salary is $2,000.00 per month. Mr. Mathews’ counsel indicated his client’s earnings were $30,000.00 per year; Mrs. Mathews testified he had earned $36,000.00 annually. We are convinced his real annual income substantially exceeds the $30,-000.00 that he admitted to. Whichever figure is correct, Mr. Mathews does evidently have supplemental benefits from his family-owned corporation, such as interest-free “loans”. The home in which he lives is owned by his family’s corporation and is rent-free to him. Mrs. Mathews earns, generally, $125.00 monthly, and sometimes slightly more. Under the facts and circumstances of this case, and under our jurisprudence, we find that an award of $600.00 per month for the support of the minor child, for the nine months that she has physical custody, is equitable and supported by the evidence in the record. During the three months when the plaintiff has custody (during summer vacation), $300.00 per month is fair.

For the above and foregoing reasons, we annul the finding of the trial court granting a separation a mensa et thoro based on mutual fault, and affirm that portion of the judgment which granted the divorce on grounds of the parties having lived separate and apart for over one year without reconciliation. We amend the judgment to reflect post-separation fault on the part of the defendant wife sufficient to preclude permanent alimony; the finding of fault as to Mr. Mathews remains unaffected. We affirm the judgment insofar as it awards joint custody to both parents on the terms set by the trial court and we amend and increase the child support award to $600.00 per month, during the time when defendant has physical custody, and $300.00 per month when plaintiff has custody.

Each party is taxed his own costs of this appeal.

AFFIRMED IN PART, ANNULLED IN PART, AMENDED AND RENDERED.

Before KLIEBERT, BOWES, GAUDIN, GRISBAUM and DUFRESNE, JJ.

ON REHEARING

KLIEBERT, Judge.

By order dated March 7, 1984 a rehearing, limited to the issue of whether this court erred in its opinion dated January 10, 1984 insofar as it reversed the trial judge’s granting of the separation judgment, was granted. The original three-judge panel divided on this issue, thus necessitating a five-judge panel. The matter was re-briefed and re-argued before the five-judge panel. We now affirm the trial court’s granting of the judgment of separation.

Plaintiff, Benjamin Mathews, the husband, in March of 1981, filed a petition for separation from bed and board, alleging cruel treatment on the part of his wife. The wife answered and also reconvened alleging cruel treatment on the part of her husband. Various rules and motions were filed, but the trial of the separation action was delayed.

In April of 1982 the husband filed a petition for divorce based on living separate and apart for more than one year without a reconciliation. The wife filed a general denial and re-alleged fault on the same grounds alleged in her reconventional petition for separation. The divorce suit was docketed under the same number as the previously filed separation suit. It was later consolidated for trial with the separation suit. The trial transcript reflects that although consolidated for trial, the trial court and the attorneys agreed at the close of the trial that a judgment would be forthcoming on both the separation suit and the divorce suit.

In a single document the trial judge issued several decrees which included a decree of separation from bed and board and a separate decree of divorce. Among other actions taken on the appeal, this Court, in its opinion dated January 10, 1984, relying on Pepe v. Drouant, 311 So.2d 582 (1st Cir.1975) reversed the trial court’s granting of the separation decree.

We now believe our original reliance on the Pepe case was misplaced. In Pepe, the court refused to apply the provisions of Code of Civil Procedure Article 1153 (the amendment relates back to the date of filing the original pleading) to an amended petition for separation filed by the wife. The original petition for separation alleged cruelty. The amended petition alleged one year living separate and apart as the grounds for the separation. Although filed under the same docket number, the amended petition was found to be a separate cause of action, hence, the court refused to apply the provisions of Article 1153. The situation here is different from the Pepe case in that the amended and supplemental petition in Pepe actually deleted the cruelty allegations of the original petition and alleged new grounds for the action. Hence, the deletion of the original allegations was considered an abandonment of the original petition alleging cruelty. Here, however, the separation suit was not abandoned. Rather, it was tried in a consolidated hearing with a subsequently filed divorce action based on one year living separate and apart under an agreement to have judgment rendered in both the separation and the divorce actions.

On rehearing, the wife, through her new counsel, urges several additional Fourth Circuit cases in support of her present contention that the trial judge erred in granting the separation judgment; namely, Morice v. Morice, 419 So.2d 1003 (4th Cir.1982); Saunders v. Saunders, 422 So.2d 245 (4th Cir.1982); Flamm v. Flamm, 442 So.2d 1271 (4th Cir.1983).

In Morice, the issue was whether the community of acquets and gains terminated on the date the petition for separation based on cruelty was filed or on the date the separation petition was amended to pray for a divorce based on a one year voluntary separation. Relying on Pepe, the court held the supplemental petition asserted a “different cause of action” from the original petition and that the “different cause” (the expiration of one year since the date of the voluntary separation) did not exist at the time the original petition was filed, consequently, it refused to apply the provisions of C.C.P. Article 1153. Although we are unable to determine whether the amending and supplemental petition praying for the divorce deleted the cruelty allegations (as was the case in Pepe) we note that it differs from the case here in that the separation action was abandoned rather than tried.

In Saunders, the wife filed a suit for separation based on abandonment and was granted same. Thereafter, the husband filed a suit for divorce based on one year voluntary separation. The wife reconvened asking that the husband’s suit for divorce be dismissed and a divorce be granted to her based on the previously rendered separation judgment. The Fourth Circuit refused to grant the wife a divorce based on her previous separation judgment because less than one year had expired since the date of its rendition. Thus, this case has no application here because the grounds necessary to support the divorce were not present. Hence, the case turns on an entirely different issue from that involved here.

In Flamm, the appellant husband contended the trial judge’s action in pretermit-ting the separation suit (based on cruelty) and rendering a divorce (based on one year’s living separate and apart) constituted an unconstitutional deprivation of property because the community had to be divided as of the date of filing the divorce action rather than the date of filing the separation suit. The court refused to consider the issue because the separation judgment was not before it on the appeal.

Here the separation judgment is on the appeal before us. Further, we are not confronted with the question of when the community of acquets and gains formerly existing between the parties terminated or with the application of the provisions of C.C.P. Article 1153, nor do we pass on those issues. Rather, the issue, pure and simple, is whether the separation suit could be maintained and tried notwithstanding the pendency of a divorce action based on separate and distinct grounds. That issue was not directly presented or passed on in any of the above cited and discussed cases and is res novo to us. Further, although present, it was not directly passed on by the court in Jordan v. Jordan, 408 So.2d 952 (2nd Cir.1981).

In Jordan, the wife filed for separation on the grounds of abandonment. The husband reconvened for divorce .on the grounds of' living separate and apart for more than one year. The wife answered this reconventional demand of the husband. The Second Circuit without discussion upheld the trial court’s ruling that the recon-ventional demand for a divorce took precedence over the initial suit for separation and consequently restricted the trial to the suit for divorce. Nevertheless, in the primary issue involved on the appeal, i.e., the wife’s entitlement to permanent alimony, the case was remanded to give the wife an opportunity to amend her pleadings and have a hearing on the issue. Thus, she obtained her desired hearing on the issue of fault as the same had been alleged in her separation petition. In our view, the Jordan case should be confined to its facts. It should not be read to mean that every subsequently filed demand for a divorce takes precedence over an untried suit for separation.

Since the separation suit has as its prime objective the termination of conjugal cohabitation and the termination of acquets and gains all without the termination of the marital vows, and the divorce suit has as an additional prime objective the termination of the marital vows, we hold that where, as here, the two are based on separate and distinct grounds, the subsequent filing of the divorce action does not, as a matter of law, automatically abate the separation action.

The fact the petition for divorce was docketed under the same number as the petition for separation is immaterial. The filing of either petition for separation or divorce commences a proceeding in which marital problems other than the mere separation or divorce may be resolved. In the proceeding so commenced issues such as custody of children, visitation, support, alimony, liquidation of the community, etc. may be judicially resolved. Once commenced, the action is analagous to a succession proceeding rather than to a single suit, in that, various causes of action and different subjects are heard and resolved within the same proceeding.

Further, although the rendition of a divorce judgment abates some of the effects of a previously rendered separation judgment, it does not necessarily abate all of them. Some issues, such as, liquidation of the community, can be waived and/or reserved for adjudication at some subsequent time in the same proceeding or in some subsequent suit. As of the time of this appeal the liquidation of the community of acquets and gains was as yet unheard.

Accordingly, our original opinion of January 10, 1984 is corrected to provide that the judgment of separation granted by the trial court is affirmed rather than reversed. In all other respects the opinion of January 10, 1984 is to remain in full force and effect.

AFFIRMED IN PART.

BOWES, J., dissents.

BOWES, Judge,

dissenting.

In my view, the majority opinion correctly notes that the issue of the date on which the community terminated is not before us at this time. I also agree with the finding that the two actions have different primary objectives and are based on separate and distinct grounds. It is, however, difficult to bridge the gap between those latter findings and the conclusion of the majority that a separation and divorce can be granted in the same judgment.

From my reading of the record, it is not apparent that the attorneys agreed, along with the trial judge at the close of trial, that a separation judgment should be forthcoming, along with the divorce. Rather, counsel for plaintiff Mr. Mathews stated that he felt that the separation should be ruled upon “even if it be a mutual fault separation because we can have some repercussions from a financial standpoint.” The Court agreed, granting the disputed judgment. Counsel for defendant was silent as to this point. (See Tr. Yol. Ill, p. 197)

Even if both attorneys had so agreed, such would be irrelevant because the actions herein and their respective objectives are mutually inconsistent and therefore cannot be tried together except in the alternative. C.C.P. 462. Separation from bed and board does not dissolve the bond of matrimony, but puts an end to their community and to their obligation to live together; divorce dissolves the bond of matrimony. C.C. Art. 136; 155; and 159. It therefore defies logic to declare that a separation and divorce can mutually co-exist at the same time in the same judgment.

Indubitably, the actions could be tried together if pleaded in the alternative. DeMaupassant v. Clayton, 214 La. 812, 38 So.2d 791 (1949). Granting both within one judgment gives the parties two different forms of relief which are, in my opinion, mutually exclusive. The parties are still married, and also no longer married, at one and the same time. Such a result is substantially violative of Civil Code Articles 136, 155, and 159; and is procedurally incompatible with C.C.P. article 462. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. R.J. D’Hemecourt Petroleum v. McNamara, 444 So.2d 600 (La. 1983). The “agreement” found by the majority, which I do not believe exists, contravenes the substantive as well as procedural law, and has effects which go beyond the rights of the parties themselves. Therefore, neither the trial court nor this appellate court is bound by such an “agreement” —if there was one.

Finally, I find the majority’s attempts to distinguish the cited cases, particularly Pepe and Morice, unsuccessful. In my view, the rationale of Pepe, Morice and our case are the same. In this regard, I disagree with the statement of the majority that we relied on Pepe (as authority) in our original opinion — we simply agreed with it’s rationale which the majority now tries to distinguish. Whether or not plaintiffs specifically deleted the fault allegations in Pepe and Morice, or effectively did so by filing a new action requesting new relief on different grounds which did not exist at the time the original action was filed, is a distinction without a difference. All plaintiffs abandon their prayer for separation when they subsequently pray for divorce; and if, as in the Jordan situation, one party’s subsequent petition for divorce takes precedence over the other’s previously filed petition for separation, pretermitting that action for separation, how can this court hold that the separation action filed by plaintiff can be tried concurrently with the divorce filed by the identical spouse litigant? I see no reason to confine Jordan to its specific facts. According to Jordan, the subsequent action for divorce took precedence over the initial separation suit.

For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: SCHOTT, Judge Presiding.

license: Public Domain

text:
    STATE of Louisiana v. Woodrow BARKSDALE. In re State of Louisiana.
    No. K2906.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.

      Harry F. Connick, Dist. Atty., Dolores V. Mason-Smith, Asst. Dist. Atty., New Orleans, for relator.
    William J. O’Hara, New Orleans, for respondent.
    Before SCHOTT, J.P., and GULOTTA and WARD, JJ.
   SCHOTT, Judge Presiding.

This is before us on the state’s application from an order granting defendant’s motion to quash the bill of information. The basis for this action was the passage of one year from the granting of defendant’s motion to vacate an earlier plea of guilty without bringing defendant to trial. The following chronology is pertinent:

April 4, 1974 — Bill of information filed against defendant for aggravated burglary.

May 8, 1974 — Defendant pled guilty to simple burglary.

March 11, 1983 — Defendant filed motion to vacate his guilty plea.

April 22, 1983 — Motion to vacate guilty plea granted.

August 10,1984 — Defendant filed motion to quash bill of information which was granted.

After we reviewed the state’s application which appeared to be meritorious defendant was given an opportunity to respond, but he failed to do so.

The trial court apparently based its ruling on C.Cr.P. Art. 582 which requires a second trial to commence within a year from the date a new trial is granted or a mistrial is ordered. However, we do not find this article to be applicable. We are not dealing here with a new trial or a mistrial. Rather, we have a defendant whose case was considered closed by the state just thirty-four days after prosecution was instituted and suddenly came back to life almost nine years later.

Under C.Cr.P. Art. 578(2) commencement of this defendant’s trial was mandated within two years from the institution of prosecution on April 4, 1974. Since defendant made prosecution unnecessary by his plea of guilty the state was relieved of the obligation to bring him to trial. When his plea of guilty was ordered withdrawn, the obligation to prosecute was reimposed on the state but to the same extent and under the same conditions as were in effect before he pled guilty. Thus, when the plea of guilty was ordered withdrawn the state had two years under Art. 578(2) to commence trial less the thirty-four days which had elapsed between institution of prosecution and his guilty plea. When defendant filed his motion to quash, the state still had until sometime in March, 1985 to commence defendant’s trial.

Accordingly, the order of the trial court dated August 10, 1984 granting defendant’s motion to quash bill of information is reversed and set aside, and the case is remanded to the district court for further proceedings.


author: CARTER, Judge.

text:
    Rita HARRIS and Julius C. Harris, Sr. v. GENERAL ACCIDENT GROUP and Southern Janitorial Services, Inc.
    No. 83 CA 1025.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.

      Emile M. Weber, Baton Rouge, for plaintiff-appellant Rita Harris and Julius C. Harris, Sr.
    Charlton B. Ogden, III, New Orleans, for intervenor-appellee Western Elec. Co., Inc.
    Charles A. O’Brien, III, Baton Rouge, for defendant-appellee General Acc. Group & Southern Janitorial Services, Inc.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

This is an appeal from a trial court judgment on a rule to show cause why plaintiff should not conclude a worker’s compensation compromise settlement.

Plaintiff Rita Harris, while employed by Western Electric Co., Inc., sustained serious injury to her back on November 20, 1980. The employee slipped and fell on a cleaning substance which had allegedly been left on the floor of her employer’s restroom due to the negligence of an employee of Southern Janitorial Services, Inc.

Western Electric paid medical and compensation benefits to the employee. On July 23, 1981, the employee filed a tort action against Southern Janitorial Services, Inc. and General Accident Group, its insurer. Western Electric then intervened seeking reimbursement by preference of all worker's compensation and medical benefits paid.

The ease was set for trial by jury on October 19, 1982. Prior to the conclusion of the trial, the parties advised the district court that the matter had been settled; however, no settlement agreement pursuant to LSA-C.C. art. 3071 was recited to the court.

On November 2, 1982, Rita Harris, her attorney, and counsel for Western Electric presented to the court a verified petition for a worker’s compensation compromise settlement. The petition recited that Western Electric had paid $31,458.91 in medical and compensation benefits on behalf of Rita Harris as a result of the accident and that Harris would accept the $200,000.00 from Southern Janitorial Services, less the amount expended by Western Electric. Western Electric agreed that it would allow Harris to accept this amount in full settlement of her entire compensation claim against Western Electric, including any claim for future compensation benefits. The trial judge, however, rejected this proposed settlement. On the same date, counsel for Harris and Western Electric executed a letter agreeing upon receipt of the $200,000.00 tort settlement check, the sum of $31,458.91, which amount represented “the total of workmen’s compensation and medicals paid to Rita Harris from the date of her accident on November 20, 1980 until Monday, November 1, 1982,” would be forwarded to counsel for Western Electric. On joint motion, a judgment of dismissal of the main demand and all incidental demands was rendered on December 1, 1982.

On December 30, 1982, intervenor filed a rule to show cause why Rita Harris should not enter into a worker’s compensation compromise settlement. Following a hearing on the rule, the trial judge rendered judgment on March 30, 1983, in favor of intervenor and against the employee for $29,993.80, the total amount of medical and compensation benefits paid by Western Electric to Harris as of October 19, 1982, plus interest from December 1, 1982.

From this judgment, plaintiffs appeal, assigning the following errors:

(1) The trial court had no jurisdiction to hear the rule on reimbursement of worker’s compensation benefits because the suit had already been dismissed; and,
(2) The trial court erred in granting the intervening employer a preference for reimbursement in a compromise settlement between an employee and third-party tortfeasor.

ASSIGNMENT OF ERROR NO. 1

Appellant contends that the trial court was without jurisdiction to hear the rule to show cause filed by intervenor. Appellant reasons that because a joint motion for dismissal of the main demand and all incidental demands was made and signed by all parties and because the trial judge dismissed the suit with prejudice, the trial court was without jurisdiction to hear the subsequent rule. Appellant concludes that, as a result, the judgment on the rule should be set aside as improvidently granted.

LSA-C.C.P. art. 1 defines jurisdiction as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” Jurisdiction is the power and authority of a court, either over the subject matter of a particular action or over the person of a particular defendant. Sims v. Sims, 388 So.2d 428 (La.App. 2nd Cir.1980), writ denied 394 So.2d 612 (La.1980). A thorough review of the record convinces us that the trial court had jurisdiction over the subject matter and of the parties in the rule to show cause.

Although the trial court clearly had jurisdiction to hear the rule, appellant’s objection is to the manner in which the intervenor sought to enforce the alleged worker’s compensation compromise settlement. LSA-C.C.P. art. 2592 prescribes the matters which may be disposed of by the use of summary proceedings. Generally, an employer’s claims for reimbursement of medical and compensation benefits paid on behalf of his employee and for a credit for future compensation is an ordinary proceeding. LSA-C.C.P. arts. 851, 2591 and 2592. However, under LSA-C.C.P. arts. 926, 928 and 2593, the objection to the unauthorized use of summary proceeding is a dilatory exception, which must be pleaded prior to answer or judgment by default, and such an exception to a rule must be filed prior to the time assigned for trial of the rule. In re Lomm, 195 So.2d 416 (La.App. 4th Cir.1967), writ refused, 250 La. 541, 197 So.2d 81 (La.1967).

Appellant did not file an exception of unauthorized use of summary proceeding. At the hearing on the rule, appellant argued that intervenor should be required to file a suit concerning the alleged compensation settlement and that intervenor should not be allowed to continue the proceeding because the original proceedings had been dismissed. Appellant’s verbal objection at the rule hearing is not a valid objection to the use of summary proceeding because LSA-C.C.P. art. 924 provides that an exception that would be appropriate in the case sub judice must comply with certain form requirements. The record is devoid of any written exception to the alleged unauthorized use of summary proceeding. Therefore, appellant has waived any objection he may have had to the summary manner in which defendant's claim for reimbursement was presented to the trial court.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, appellant contends that the trial court erred in granting the intervening employer a preference for reimbursement in a compromise settlement between an employee and a third-party tortfeasor. Appellant reasons that because an employer cannot receive credit against his compensation liability for sums received by an employee through compromise of a tort claim against a third person, the judgment of the trial court ordering plaintiff to pay her employer $29,993.80 should be set aside.

Under LSA-R.S. 23:1101-23:1103, the employer who intervenes in an employee’s tort action pending against a third party has a preference in any judgment for reimbursement of compensation benefits paid. However, a compromise is not a judgment. In a compromise, claimant accepts less than full damages suffered. Verbois v. Howard, 322 So.2d 110 (La.1975); Crabtree v. Bethlehem Steel Corporation, 284 So.2d 545 (La.1973); LaLande v. Index Geophysical Survey Corp., 336 So.2d 1054 (La.App. 3rd Cir.1976).

In Roberson v. Fontenot Petroleum Co., Inc., 322 So.2d 287, 290 (La.App. 1st Cir. 1975), writ denied, 325 So.2d 277 (La.1976), the court explained:

The reasoning' behind LSA-R.S. 23:1103 that relieves the employer and its insurer from liability when the employee recovers judgment against the third person for more than the total amount of the workmen’s compensation is not that the employer has lost something by the judgment, but rather that the employee should not have a double recovery for his injuries. However, it is pointed out by Crabtree v. Bethlehem Steel Corporation, supra, that when the employee compromises his claim, he is, by the very nature of the compromise, receiving less than the judgment value of his claim. As Justice Tate, in the majority opinion on rehearing, states:
“In a tort suit, a judgment in favor of the plaintiff awards the full damages to which he is entitled. Ordinarily, by a compromise of a tort claim a plaintiff accepts less than the full damages suffered, and a defendant pays a sum not representing the full damages, each balancing the danger of losing against the hope of gaining all.”
Thus, the employee is not getting a double recovery when he compromises his tort claim and continues to receive compensation benefits, because the compensation benefits merely augment the money obtained in the compromise to more fully give a full recovery to the employee.

In the instant case, plaintiff comprised her tort claim with the third-party tort-feasor for $200,000.00. Therefore, the intervening employer is not entitled to a credit for the compensation and medical benefits paid. However, on the same day the intervening employer and the employee petitioned the court to compromise the worker’s compensation claim, which the trial judge refused to sign, the employee and the employer executed a letter with plaintiff agreeing to reimburse intervenor for $31,458.91, which represented the total compensation and medical benefits already paid to plaintiff. On the rule to show cause, the trial judge approved the agreement insofar as it pertained to past compensation and medical benefits paid by the employer.

Under LSA-R.S. 23:1271 et seq., judicial approval is required for a worker’s compensation compromise settlement to be valid and enforceable. Although the trial judge refused to sign the petition for compromise settlement submitted by both the employee and the employer on November 2, 1982, we conclude that the joint agreement perfected by letter on the same date and approved by the court on the rule to show cause constituted a valid and enforceable partial worker’s compensation compromise settlement. Therefore, the employer is entitled to receive $29,993.80 from the employee pursuant to the compromise settlement of past compensation and medical benefits paid to the employee.

In brief, appellee argues that the petition for worker’s compensation compromise settlement is an enforceable agreement and that the employer is entitled to a credit for all future compensation. However, appel-lee did not appeal the judgment of the trial court or answer plaintiffs appeal. Therefore, the issue of future compensation is not properly before this court.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal to be assessed against appellant.

AFFIRMED.

      . Apparently, the amount agreed upon was $200,000.00, less $31,458.91 which was to be received by Rita Harris and paid over to Western Electric.

      . In support of her position that the trial court was without jurisdiction to hear the rule filed subsequent to a judgment of dismissal, appellant relies on Gilbert et al. v. Nephler & Boyle 15 La. 59, Gilbert et al. v. Meriam, 2 La.Ann. 160 and American Gen. Inv. Corp. v. St. Elmo Lands, 391 So.2d 570 (La.App. 4th Cir.1980), writ denied, 395 So.2d 682 (La.1981). We note, however, that both Gilbert v. Nephler & Boyle, supra, and Gilbert v. Meriam, supra, were decided under the Code of Practice. Additionally, a careful examination of American Gen. Inv. Corp. v. St. Elmo Lands, supra, reveals that appellant's reliance upon this case is misplaced. Although our brethren of the Fourth Circuit Court of Appeal discussed the St. Elmo Lands case in terms of jurisdiction, the court held that the law firm had no right of action to join as a party plaintiff in its client’s action. Clearly, this case is inapplicable to the case at bar.

      . LSA-C.C.P. article 2592 provides:
      Summary proceedings may be used for trial or disposition of the following matters only:
      (1) An incidental question arising in the course of litigation.
      (2) An application for new trial.
      (3) An issue which may be raised properly by an exception, contradictory motion, or rule to show cause.
      (4) An action against the surety on a judicial bond after judgment has been obtained against the principal, or against both principal and surety when a summary proceeding against the principal is permitted.
      (5) The homologation of a judicial partition, of a tableau of distribution or account filed by a legal representative, or of a report submitted by an auditor, accountant, or other expert appointed by the court; and an opposition to any of the foregoing, to the appointment of a legal representative, or to a petition for authority filed by a legal representative.
      (6) A habeas corpus, mandamus, or quo warranto proceeding.
      (7) The determination of the rank of mortgages, liens and privileges on property sold judicially, and of the order of distribution of the proceeds thereof.
      (8) The original granting of, subsequent change in, or termination of, child custody, alimony, child support in behalf of minor children, and support between ascendants and descendants; and
      (9) All other matters in which the law permits summary proceedings to be used.

      . LSA-C.C.P. article 924 provides that:
      All exceptions shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. They shall set forth the name and surname of the exceptor, shall state with particularity the objections urged and the grounds thereof, and shall contain a prayer for the relief sought.

      . LSA-R.S. 23:1102 was amended by Acts 1983, Act No. 1 § 1, effective July 1, 1983, to add subsection B & C. The new law, although not applicable to the instant case, solves future cases of this nature by providing:
      A. If either the employee or his dependent or the employer or insurer brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.
      B. If compromise with such third person is made by the employee or his dependent, the employer or insurer shall be liable for compensation in excess of the amount recovered against such third person only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise. If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, medical benefits, attorney’s fees, and penalties, previously paid to or on behalf of the employee, exclusive of attorney’s fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise.
      C.If the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise, and the employee fails to pay to the employer the total amount of compensation benefits, medical benefits, attorney’s fees, and penalties out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits, medical benefits, attorney’s fees, or penalties previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer by the employee pursuant to the provisions of Subsection B of this Section. Notwithstanding said reimbursement, all rights of the employer or his insurer to assert the defense provided for herein against claims for future compensation by the employee or his defendant shall be reserved. Nothing herein shall be interpreted to affect the rights of the employer or his insurer to otherwise seek reimbursement for compensation benefits, medical benefits, attorney’s fees, or penalties against a third party defendant or his insurer without regard to the actions of the employee on whose behalf said compensation and medical benefits were paid.

      . These articles were rewritten in Acts 1983, No. 1 § 1, effective July 1, 1983, to provide for commission administration of worker’s compensation instead of the previous court adminis; tered system.

      . If the appellee had taken an appeal or answered plaintiff’s appeal, we would have also considered increasing this amount to $31,458.91 as set forth in the agreement. However, since appellee did neither, we cannot increase the ' amount of appellee’s judgment.


author: COLE, Judge.

text:
    Maggie Mingo BROWN v. James W. BROWN.
    No. 83 CA 1090.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.

      Charles B.W. Palmer, Amite, for plaintiff.
    Lewis V. Murray, III, Bogalusa, for defendant.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The primary issue in this appeal is whether or not the plaintiff is entitled to a partition by licitation of certain immovable property and improvements.

The facts giving rise to this case are as follows. Plaintiff, Maggie Mingo Brown, and defendant, James W. Brown, lived together in secret concubinage from December 31, 1954 until November of 1967. On March 19, 1958 plaintiff purchased lots 68 and 69 of Paddock-Welch Subdivision, City of Bogalusa, for $730.00 in cash, which had been given to her by defendant. The act of sale included an acknowledgment by defendant that the property was acquired with plaintiff’s separate and paraphernal funds. In 1962 the parties obtained a loan which was used by defendant to acquire materials and labor to begin construction of a residence on these lots. However, most of the construction was performed by defendant himself over a period of approximately three years. Plaintiff contributed no capital and very little labor toward construction of this residence.

On July 26, 1965 plaintiff and defendant, appearing in the act of sale as husband and wife, acquired lots 65 and 66 of Paddock-Welch Subdivision for a cash price of $700.00. Defendant subsequently commenced construction of a residence on these lots, but it has not been completed. Plaintiff has contributed no capital or labor toward the construction of this partially completed residence.

Plaintiff and defendant separated in November of 1967. Defendant has continued to live in the residence on lots 68 and 69 until the present time. On November 8, 1968 plaintiff transferred an undivided one-half interest in these two lots to defendant for a stated consideration of $350.00 cash. The apparent motive for this sale was plaintiffs need for money at that time.

Plaintiff filed the present suit seeking a partition by licitation of the above described properties. The trial court rendered judgment ordering a partition by licitation of lots 68 and 69, but denying same as to lots 65 and 66. The court also ordered the payment of $9,000.00 to defendant as reimbursement for cost of constructing the residence on lots 68 and 69. The remaining sale proceeds were to be divided equally between plaintiff and defendant. Plaintiff appealed.

Plaintiff argues the trial court erred in-finding she owned no interest in lots 65 and 66 and the improvements thereon. Her claim to ownership of one-half of these lots is based upon the act of sale listing her as a co-vendee of this property. The law applicable to situations where a concubine is listed as a co-vendee of immovable property with a paramour was set out by this court in Broadway v. Broadway, 417 So.2d 1272 (La.App. 1st Cir.), writ denied, 422 So.2d 162 (1982), at p. 1276, as follows:

“... if the concubine can furnish strict and conclusive proof that her capital and industry, obtained independent of the concubinage, contributed a full share to the acquisition of the subject property, then equity dictates she be declared a one-half owner.” (Emphasis added.)

The Broadway court further held there is a rebuttable presumption any contribution made by the concubine was with funds obtained independent of the concubinage.

This presumption has been rebutted in the present case. Plaintiff admits she did not contribute any of the capital used to acquire the property or the improvements thereon. All payments on the property and its improvements were made by defendant with his own funds. Plaintiff used the small amount of money she occasionally earned doing odd jobs primarily to purchase a few household items and some clothing for defendant’s daughter, but nothing more substantial. Additionally, she did not assist in the construction of the partially completed residence on these lots. Accordingly, the trial court correctly found she had not established any ownership interest in lots 65 and 66 or the improvements thereon.

Plaintiff also argues the trial court erred in concluding defendant owned one-half of lots 68 and 69. She maintains the 1968 act of sale purporting to transfer a one-half interest in these lots for $350.00 was a prohibited donation in disguise, since this price was totally out of proportion to the value of the property. See La.Civ.Code art. 2464. She further argues this alleged donation was invalid under Civil Code art. 1497 because it divested her of all her property without reserving enough for her subsistence.

In order to determine whether or not the conveyance was a donation in disguise (i.e., whether the price was disproportionate to the value of the thing), we must determine precisely what was sold. It is undisputed that plaintiff was the sole owner of lots 68 and 69 at the time of this conveyance. Therefore it unquestionably transferred a one-half interest in the lots to defendant. However since plaintiff, for reasons discussed below, did not own the improvements located on the lots, she could not transfer any interest in them to defendant.

The improvements were built by defendant with his own capital and labor. Plaintiff contributed no capital and performed very little, if any, labor in constructing these improvements. A landowner does not acquire ownership of improvements built by another merely because they are built on his property. See La. Civil Code art. 508 (prior to 1979 amendment); Babin v. Babin, 433 So.2d 225 (La.App. 1st Cir.), rehearing denied (1983). Under the law in existence at the time of the construction of these improvements, a landowner acquired ownership of such improvements only by complying with certain conditions, one of which was reimbursing the builder for the costs of materials and labor. Id. Since plaintiff had not complied with these conditions at the time of the conveyance, she did not own the improvements. Thus, defendant still owned the improvements himself and did not acquire any interest in them through this conveyance.

Viewed in this light, $350.00 does not appear to be a disproportionate price. It was approximately half the original price paid for the lots. While it is probable the lots had appreciated in value, no evidence was introduced to establish this fact. Thus, plaintiff failed to prove the price paid by defendant was so out of proportion to the value of the property as to render the transaction a donation in disguise. Since there was no evidence of any fraud or coercion, we hold the 1968 conveyance was a valid sale to defendant of a one-half interest in lots 68 and 69. Accordingly, the trial court correctly ordered a partition by licitation of these lots.

In the alternative, plaintiff argues the domestic services she performed for defendant and his children (cooking, washing, cleaning, etc.) during the time they lived together were independent of the concubinage and should be considered a “contribution” entitling her to an interest in the property in dispute. We do not agree such domestic services were indepen- ' dent of the concubinage. Plaintiff and defendant lived together as husband and wife for an extended period of time and any domestic services performed by plaintiff were an integral part of this relationship. Since we find these services were interwoven with the concubinage relationship, plaintiffs argument is totally without merit. See Schwegmann v. Schwegmann, 441 So.2d 316 (La.App. 5th Cir.1983), writ denied, 443 So.2d 1122 (La.1984), cert. denied, — U.S. —, 104 S.Ct. 2389, 81 L.Ed.2d 347 (1984).

Plaintiff also argues the trial court erred in awarding reimbursement to defendant since any claim for reimbursement had prescribed by the time it was asserted.

The right to reimbursement arises only when the landowner elects to keep the improvements. In the present case this election did not occur until the filing of suit by plaintiff; defendant’s claim for reimbursement was made in answer thereto. Therefore, this claim clearly had not prescribed at the time it was asserted.

Lastly, plaintiff contends the law relating to co-ownership of property by a concubine and paramour violates the principles of substantive due process and equal protection. In particular, she complains concubines are held to a stricter standard of proving co-ownership than other co-owners.

The notions of substantive due process are violated whenever the law under attack does not bear a real and substantial relationship to a legitimate governmental objective. Valentine v. Thomas, 433 So.2d 289 (La.App. 1st Cir.), writ denied, 440 So.2d 728 (La.1983). The applicable standard is whether the law is reasonable in relation to the goal sought and whether it is in the interest of the community as a whole. Id.

Equal protection requires state laws to affect alike all similarly situated. Valentine v. Thomas, supra. In cases such as the present one, which involves no suspect classification or impingement upon a fundamental right, the applicable standard is whether the differential treatment has a rational basis which is reasonably related to a legitimate governmental interest. Id.

The State interest involved in the present case is the encouragement of marriage over a state of concubinage. The State has a legitimate interest in promoting this goal so as to preserve the moral standards and values of society as a whole. See Schwegmann v. Schwegmann, supra, at p. 326. We find that the law in question is reasonably related to the advancement of this interest. Accordingly, it violates neither due process nor equal protection principles.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

ON APPLICATION FOR REHEARING.

Rehearing DENIED: We adhere to the reasons assigned in our original opinion as regards the contentions raised in the present application. The net result achieved by the trial court judgment with respect to the reimbursement issue was correct, although as noted in our opinion, its reasoning and the manner in which it was styled was theoretically in error. Although defendant’s obligation to pay one-half of the reimbursement costs was extinguished by confusion, plaintiff’s obligation to pay one-half of these costs remained intact. Accordingly, the trial court should have ordered an equal division of the sale proceeds, after which plaintiff was to pay defendant $4,500 from her portion of the proceeds. Thus, if we amend the judgment to reduce the amount of reimbursement to $4,500, it will also be necessary to order the payment of this amount out of plaintiff’s share of the proceeds. Since the trial court ordered the payment of the full amount of reimbursement out of the mass of the proceeds prior to its division, rather than from plaintiff’s share of the proceeds, the final result to the parties is exactly the same as if judgment had been rendered as noted above. It would accordingly be a vain act to amend this judgment, since it would not change the final position of the parties.

      . Plaintiff also maintains defendant donated one-half of lots 65 and 66 (plus improvements) and the improvements on lots 68 and 69 to her. This argument is clearly without merit. A donation of immovables must be by written act passed before a notary and two witnesses. La. Civ. Code art. 1536. Defendant never executed such an act.

      . Plaintiff argues she contributed to the acquisition of lots 68 and 69 and its improvements by co-signing two loan notes. These loans were used to acquire the lots and materials for the improvements. However, we do not find this sufficient to constitute a contribution of "capital or industry” since defendant made all the payments on these notes.

      . All subsequent references to La.Civ.Code art. 508 are to this provision as it existed prior to its amendment by Act 180 of 1979. Prior to this amendment, art. 508 provided, in pertinent part, as follows:
      "When plantations, constructions and works have been made by a third person, and with such person's own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same.
      "If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.
      "If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby."

      . The present case is distinguishable from those in which a sale of land and the improvements thereon is deemed to be an election by a landowner to keep (and then sell) improvements built on his land by another. Cf. Blocker v. Mizell, 202 So.2d 357 (La.App. 1st Cir.), writ refused, 251 La. 230, 203 So.2d 559 (1967); Benoit v. Acadia Fuel & Oil Distributors, Inc., 315 So.2d 842 (La.App. 3d Cir.), writ refused, 320 So.2d 550 (1975). In such cases the vendees may be innocent third parties unaware the landowner may not own the improvements. A contrary result would mean the vendees are responsible for reimbursing the maker of the improvements for the costs of materials and labor. The situation is completely different in the present case since the vendee and the maker of the improvements is the same person.

      . Even assuming, arguendo, this conveyance constituted a donation in disguise, it is not clear it would be null as a prohibited donation under La.Civ.Code art. 1497. In order to set aside a donation under this provision, a plaintiff must conclusively prove the donation divested the donor of all his property and the donor failed to reserve enough for his subsistence. See Pardue v. Turnage, 383 So.2d 804 (La.App. 1st Cir.1980); Ellis v. Benedict, 408 So.2d 987 (La.App. 2d Cir.1981). Plaintiff has not established sufficiently these elements in the present case.

      . We likewise reject plaintiffs argument defendant has been unjustly enriched by her performance of domestic services. While defendant may have benefited from such services, plaintiff also received benefits from the relationship since defendant provided her with shelter and financial support throughout the years they lived together. This was sufficient remuneration for the domestic services rendered by her.

      . That portion of the judgment ordering the payment of $9,000.00 to defendant as reimbursement for cost of constructing the residence on lots 68 and 69 is theoretically in error. At the time of the 1968 sale of the one-half interest in lots 68 and 69 appellant did not own the improvements and did not elect to exercise her right to acquire such ownership until this suit was filed. When defendant acquired the one-half interest in the lots in 1968, he also acquired one-half of the article 508 obligation to reimburse. The trial court required appellant to reimburse all ($9,000.00) of the cost of the improvements when she was only legally liable for one-half thereof because that is all she owned at the time of the election. However, it is unnecessary to amend this judgment to reduce the reimbursement to $4,500.00 because the net effect of the trial court judgment is the same. This is so because the trial court ordered the $9,000.00 taken out of the mass prior to an equal division of the remainder.


author: CUTRER, Judge.

text:
    WOODSON CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. R.L. ABSHIRE CONSTRUCTION COMPANY, INC., Defendant-Appellant.
    No. 83-1151.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.

      Plauche, Smith & Nieset, A. Lane Plauche, Lake Charles, for plaintiff-appel-lee.
    Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for defendant-appellant.
    Dennis Vidrine, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

The issue presented in this appeal is whether the trial court properly granted a motion for summary judgment nullifying a default judgment for the lack of subject matter jurisdiction. The default judgment was rendered in a separate suit entitled R.L. Abshire Construction Company, Inc. v. Woodson Construction Company, Inc., 459 So.2d 571 (La.App. 3rd Cir.1984). We shall render a separate opinion in this latter case.

After the default judgment was rendered in favor of Abshire and against Woodson in the amount of $2,356,354.34, Woodson filed this action of nullity seeking to set aside the default judgment. The trial court granted Woodson’s motion for summary judgment nullifying the default judgment rendered in the separate suit. Appeals were taken in both suits.

We shall first consider the appeal in this nullity action for the reason that, if Wood-son is successful in this nullity action, the issues presented in the appeal of the default judgment, 459 So.2d 571, will be rendered moot and that suit will be subject to dismissal.

FACTS

The United States Department of Energy hired Parsons-Gilbane, a Joint Venture (Parsons) as the prime contractor for the construction of a Petroleum Reserve Project near Sulphur, Louisiana. The project involved the preparation of the site, drilling of wells, and installation of equipment for the storage of oil in a salt dome. Woodson Construction Company, Inc. (Woodson) entered into a subcontract with Parsons to prepare the project site. Wood-son’s contract contained an arbitration clause covering all disputes arising under the contract. Woodson subcontracted much of the work to various other subcontractors, including defendant, R.L. Abshire Construction Company, Inc. (Abshire). For the sake of brevity, the contract between Parsons and Woodson will be referred to in this opinion as the “Parsons-Woodson contract.” The contract between Woodson and Abshire will be referred to as the “Woodson-Abshire contract.”

As the work progressed, a dispute arose, involving Parsons, Woodson and the subcontractors as to the sums owed to the subcontractors (including Abshire) for extra work performed by them. Upon completion of the job, Woodson and its subcontractors, including Abshire, entered into an agreement to retain Frederick Crowley, an expert arbitration attorney, to present their disputed claim to arbitration. Mr. Crowley presented Woodson’s claims against Parsons in a six-week long arbitration proceeding entitled “In the Matter of Arbitration between Woodson Construction Company and Parsons-Gilbane, A Joint Venture.” Mr. Crowley also represented and presented the claims of Abshire and the other subcontractors in the same proceeding under the sponsorship of Woodson. The panel awarded Woodson and its subcontractors the aggregate amount of $2,309,394.00. The total sum granted in the award was paid to Woodson, which then paid all of the subcontractors their share as specified in the arbitration award. Abshire refused to accept payment because the company president, Robert Abshire, believed the arbitration award was not enough to cover its claim. Abshire then filed suit Number 83-983 against Woodson for $2,707,011.42. Upon Woodson’s failure to timely file an answer, a default judgment against Wood-son was entered in the amount of $2,356,-354.83. A motion for a new trial by Wood-son was denied as being untimely filed. Woodson then appealed that judgment.

Woodson then filed this suit to nullify the default judgment, rendered in suit Number 83-983, for lack of subject matter jurisdiction. The trial judge issued a temporary restraining order pending hearing on Woodson’s rule for a preliminary injunction. The trial judge held a hearing and granted the preliminary injunction enjoining the enforcement of the default judgment. Woodson then filed a motion for summary judgment. Woodson argued that the arbitration clause divested the trial court of subject matter jurisdiction in the rendition of the default judgment. The trial judge granted the summary judgment and also permanently enjoined Abshire from enforcing the default judgment. Ab-shire appeals from that judgment and we affirm.

SUMMARY JUDGMENT

A party is entitled to summary judgment “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment, as a matter of law.” LSA-C.C.P. art. 966. All doubts as to whether to grant a summary judgment must be resolved against the party seeking it. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (La.1963). However, a summary judgment is proper when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts submitted to the court. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976); Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir.1980). The plaintiff’s motion for summary judgment was granted on the grounds that the default judgment is a nullity for lack of subject matter jurisdiction under LSA-C.C.P. art. 2002.

The propriety of the summary judgment in this case depends on the resolution of two questions. First, whether Abshire agreed to submit his disputed claims to arbitration. Second, if so, does the submission of the dispute to arbitration divest the trial court of subject matter jurisdiction?

The Parsons-Woodson contract contains an arbitration clause which reads in pertinent part as follows:

“ARTICLE XII — DISPUTES
1.0 Any dispute arising under this subcontract that is not settled by agreement of the parties, or pursuant to the administrative relief provided for in the following paragraphs of this clause, shall be settled by arbitration as provided in Section 5 of this clause.
* * Sfc # ¡⅜ s£
5.0 In the event of any dispute, not settled by agreement of the parties or pursuant to the administrative relief provided for in the proceeding [sic] Paragraphs 1.0, 2.0, or 3.0 of this Article, between Contractor and Subcontractor with respect to the interpretation or performance of this Subcontract, the same shall be settled by arbitration by the American Arbitration Association (“Association”) before a single arbitrator in accordance with the Association’s Construction Industry Arbitration Rule, at Dallas, Texas.”

The Woodson-Abshire contract contains the following clause:

“The Subcontractor is required to complete the above described work according to the terms and conditions of that certain contract by and between Woodson Construction Company, Inc. and Parsons-Gilbane, A Joint Venture with the Department of Energy under Subcontract No. 287-1072-000 according to the plans and specifications as amended, submitted thereunder and let for bids by invitation for bids dated October 17, 1978_” (Emphasis ours.)

Abshire argues that it was not bound to arbitrate this dispute because the language in its contract with Woodson was not explicit enough to make the arbitration clause in the Parsons-Woodson contract part of its contract with Woodson. We disagree for two reasons. First, we point out that the incorporation of an arbitration clause by reference to another written contract is a suitable method of evidencing the parties’ intent to arbitrate as long as the arbitration clause in the contract that is referred to has a “reasonably clear and ascertainable meaning.” J S & H Construction Co. v. Richmond County Hosp. Auth., 473 F.2d 212 (5th Cir.1973). See also, Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La.1974). Both the federal and state arbitration acts indicate the strong legislative policies of both sovereigns favoring arbitration. 9 U.S.C. § 1 et seq.; LSA-R.S. 9:4201 et seq. Any doubt as to whether a controversy is arbitrable should be resolved in favor of arbitration. United Steelwks. of Am. v. Warrior and Gulf N. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); American Dairy Queen Corp. v. Tantillo, 536 F.Supp. 718 (M.D.La.1982). The Louisiana Supreme Court explained, in Firmin v. Garber, 353 So.2d 975 (La.1977), that:

“The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action. Housing Authority v. Henry Ericsson Co., 197 La. 732, 2 So.2d 195 (1941)....”

Frederick Crowley, who was stipulated by both parties as an expert arbitration attorney, testified that the Federal government expects the subcontractors in projects like this to be bound by the arbitration clause in the main contract. This keeps down the costs of government projects and does not overburden the public fisc.

The second and an important reason for disagreeing with Abshire’s position is that, after the dispute arose between Parsons, Woodson and the subcontractors, including Abshire, Woodson transmitted in writing to the subcontractors a proposal for the disposition of the disputes.

This agreement, dated March 5, 1980, states in substance that Mr. Frederick Crowley (an attorney who specializes in arbitration proceedings) would act as attorney for Woodson “to prepare and process its claims and the claims of its subcontractors’’ before the arbitration panel. The agreement proposed that Woodson would act as a conduit for purposes of privity of contract with Parsons to assist the subcontractors in preparing and processing their claims to the arbitration panel under the traditional “sponsorship” rules of the law.

Each subcontractor, including Abshire, was required to pay certain fees and expenses of Mr. Crowley. The schedule shows Abshire’s share of attorney’s fees as $5,000.00 at the time of execution of the instrument, $5,000.00 four months later, and other fees as they were incurred. As part of this agreement, Mr. Crowley agreed to represent Woodson and its subcontractors, including Abshire, in arbitration proceedings, or if appropriate, any appeals arising therefrom.

This assignment was signed by R.L. Ab-shire Construction, Inc., through its president, Robert L. Abshire. Following this agreement, extensive work was performed by Mr. Crowley preparing for the arbitration proceedings. The claims of Woodson and its subcontractors, including Abshire, was presented to an arbitration panel composed of three members in the City of New Orleans. The hearing was very protracted, lasting approximately six weeks.

The written decision of the panel included the following table which specified the award that each subcontractor was entitled to:

“WOODSON CLAIMS:

ITEMS WOODSON ITSELF ABSHIRE WOODSON’S BECKMAN SUBS ICS SULPHUR

1. Acceleration denied — denied

2. Breach of Contr. denied

3. Contract Adm. denied —

4. Electromech $ 92,775

5. Extended OH $536,430 $147,116 $437,424 198,228 $127,693

6. Field Indirect 198,842 — 149,157 71,594 146,501

7. Inefficiency — 126,480 63,156

8. Labor Escal. 13,998

9. PDC-70 denied —

10. Profit denied

11. Security denied —

TOTALS: $735,272 $273,596 $600,579 $425,753 $274,194

AGGREGATE (GROSS): 2,309,394,00’

As we have previously stated, Abshire deemed the award insufficient and refused to accept payment of same.

These facts reflect that, not only did the Woodson-Abshire contract contain a reference clause which obligated Abshire to submit his claim to arbitration, but his intent to submit to arbitration is exhibited by the fact that he entered into a detailed contract with an attorney, who specialized in arbitration to present his claim to the three member arbitration board. Abshire agreed to and entered into arbitration for the settlement of its claim.

This leads us to the second issue in this appeal and that is whether the submission of Abshire’s dispute or claim to arbitration would divest the trial court of subject matter jurisdiction, thereby annulling any judgment rendered by a trial court on the merits of the claim.

SUBJECT MATTER JURISDICTION

LSA-C.C.P. art. 2002 provides that:

“A final judgment shall be annulled if it is rendered:
* * * * * *
(3) By a court which does not have jurisdiction over the subject matter of the suit.”

Abshire voluntarily agreed to arbitration of its claim arising out of its performance of the contract. Once parties agree to arbitrate their disputes, the courts of this state lack jurisdiction to try the merits of the dispute. In the case of Spencer v. Hoffman, 392 So.2d 190 (La.App. 4th Cir.1980), the court stated as follows:

Our judicial system is precluded from exercising jurisdiction once arbitration has commenced, LSA-R.S. 9:4201, 4202,
“The clear purpose of arbitration is to avoid costly and lengthy litigation and to achieve a speedy resolution of the dispute in lieu of judicial proceedings. Firmin v. Garber, 353 So.2d 975 (La.1977). In Louisiana arbitration is favored as a public policy. Wright v. Round Comer Restaurants of La., Inc., 252 So.2d 341 (La.App. 4th Cir.1971).
“The award of an arbitrator is res judi-cata and unless grounds are established in accordance with arbitration law, for the vacation, modification or correction of the award, it must be affirmed. Ber-geron v. Gassen, 185 So.2d 106 (La.App. 4th Cir.1966).”

After the arbitrator renders a decision, the trial court has only a limited power of review under U.S.C.A. 9 §§ 10, 11. These same provisions are found in our arbitration law, LSA-R.S. 9:4210, 9:4211. The review limitations are discussed in the cases of Firmin v. Garber, supra; Transcontinental Drilling Co., Inc. v. Davis Oil Co., 354 So.2d 235 (La.App. 4th Cir.1978) and Bergeron v. Gassen, 185 So.2d 106 (La.App. 4th Cir.1966).

We find that the trial court correctly granted the motion for summary judgment. The trial court which rendered the default judgment, in suit Number 83-983, lacked jurisdiction of the subject matter. Thus, the judgment rendered in that suit is a nullity.

Abshire argues that the trial court should have only nullified the portion of the default judgment above the amount of $502,716.00. Abshire alleges that Woodson admits it owes $502,716.00 and, thus, this part of the default judgment should be allowed to stand. There is no support for Abshire’s contention. A judgment declared a nullity is as if it were never rendered. Thibodeaux v. Burns, 340 So.2d 335 (La.App. 1st Cir.1976).

For the above reasons, the trial court’s judgment is affirmed. Costs of this appeal are to be paid by defendant-appellant, R.L. Abshire Construction Company, Inc.

AFFIRMED.

      . It does not appear that the trial judge was made aware that Abshire had submitted his claim to arbitration.

      . Abshire cites Elte, Inc. v. S.S. Mullen, Inc., 469 F.2d 1127 (9th Cir.1972), as support for its proposition that the incorporation clause was not explicit enough to make the arbitration clause a part of its subcontract with Woodson. The Elte case is not applicable to the present case because the contract in the Elte case did not purport to incorporate an agreement to present the disputes to a neutral arbitration panel as is the case above.

      . Both acts are almost identical in substance as they were both drafted from the Uniform Arbitration Act.


text:
    R.L. ABSHIRE CONSTRUCTION, INC., Plaintiff-Appellee, v. WOODSON CONSTRUCTION COMPANY, INC., Defendant-Appellant.
    No. 83-983.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Allen, Gooch, Bourgeois, Breauf & Robi-son, Raymond M. Allen, Dennis J. Vidrine, Lafayette, for defendant-appellant.
    Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiff-appellee.
    Plauche, Smith & Nieset, A. Lane Plauché, Jr., Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

For the reasons assigned in the case of Woodson Construction Company, Inc. v. R.L. Abshire Construction Company, Inc., 459 So.2d 566 (La.App. 3rd Cir.1984), the judgment rendered is a nullity. The judgment of the trial court is reversed and the plaintiff’s suit is hereby dismissed. Abshire, plaintiff-appellee, is to pay the costs of the trial court and for this appeal.

REVERSED AND RENDERED.


author: LABORDE, Judge.

text:
    Virginia BRUMLEY, Plaintiff-Appellant, v. The FIRESTONE TIRE & RUBBER COMPANY, Defendant-Appellee.
    No. 83-995.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Writ Denied Feb. 4, 1985.

      Thomas & Hardy, Robert W. Thomas, Lake Charles, for plaintiff-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert and Robert S. Dampf, Lake Charles, for defendant-appel-lee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

In this personal injury action based on products liability, plaintiff, Virginia Brum-ley, appeals a trial court judgment rejecting her claim for damages arising out of a single car collision allegedly caused by a defective tire manufactured by defendant, The Firestone Tire & Rubber Company. After reviewing the evidence, we find manifest error in the trial court’s decision. Accordingly, we reverse and render judgment in favor of plaintiff.

FACTS

On November 27, 1981, plaintiff was driving her 1975 Ford LTD in a westward direction on Louisiana .Highway 12 when suddenly and without warning the right front tire of her car “blew out.” The blowout caused her to lose control of the car. She ran off of the road into a ditch and collided with an embankment. She was severely thrown about the car, her head hitting the seat rest and her left arm striking the door. She reported to doctors that she began having pains in her hips and legs approximately two or three days following the incident.

The trauma to her left elbow caused pain in her left arm and shoulder and into the neck region. Her injuries, although disputed, consisted of an acute cervical and lower back sprain, and a bruised left elbow.

Following the accident, plaintiffs friend, C.B. “Roy” Hryhorchuk, helped her change the tire so she could drive home. He testified that the tire had apparently disintegrated and that he could see the radial cords protruding through the tire. There was no evidence of dangerous pavement conditions or road objects that may have caused the blowout. The following day plaintiff reported the incident to Gary Savoy, assistant manager of the Firestone store in Orange, Texas, complaining of the unexpected and violent blowout. She did not relate any physical injuries to him since she had not manifested any symptoms at that point.

The tire was relatively new and it is undisputed that it exhibited little wear. Mr. Savoy informed plaintiff that the Firestone steel belted “500” radial which blew out on her car was “defective” and that its inner steel belts had “separated,” thereby causing the blowout. Mr. Savoy further stated in a letter to plaintiff that the blowout, caused by the “separation,” could have reasonably caused her to lose control of her car. Based on these representations by Mr. Savoy, plaintiff was given a “full adjustment” in the form of a cost free replacement of the defective tire. This replacement, however, was contingent upon plaintiff signing a release form holding defendant harmless from any and all liability that may have been caused by the admittedly defective tire.

Plaintiff instituted this suit to recover for damages resulting from her personal injuries arising out of the accident. The trial court held that plaintiff failed to prove her claims by a preponderance of the evidence. She appeals from this judgment.

ISSUE

The issue presented on appeal is whether the trial court committed manifest error, in light of the evidence presented, in holding that the plaintiff failed to prove her claim by a preponderance of the evidence.

After thoroughly reviewing the testimony and evidence, and in light of the applicable legal standards, we hold that the trial court did commit manifest error in rejecting plaintiffs claim.

DEFECTIVE TIRE/PRODUCTS LIABILITY

It is well-settled in our law that a manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article or a failure adequately to warn of inherent dangers, if the injury might have reasonably been anticipated. The plaintiff has the burden of proving by a preponderance of the evidence that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiffs injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971); LeBouef v. Goodyear Tire & Rubber Company, 623 F.2d 985 (5th Cir.1980).

In a negligence cause of action, it is the plaintiffs burden to prove that the manufacturer knew, or should have known, that its product created an unreasonable risk of harm, while such knowledge is presumed in a products liability case. In Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978), the Louisiana Supreme Court held that, “when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user.” Id. at 930 (emphasis added). This duty arises out of the manufacturer’s actual or constructive knowledge of its product’s shortcomings. This duty was later expanded in Cobb v. Insured Lloyds, 387 So.2d 13 (La.App. 3rd Cir.), cert denied, 394 So.2d 615 (La.1980), wherein the court indicated that “normal use” within the parlance of Louisiana Products Liability Law encompasses all intended and foreseeable uses, including reasonably foreseeable misuse, in which the consumer may engage with the product. A product is therefore “defective” if it is unreasonably dangerous in normal use, which includes a failure to warn of a known or reasonably foreseeable danger. Scott v. Black & Decker, Inc., 717 F.2d 251, 253 (5th Cir.1983). We conclude that in all cases of products liability, including those of failure to warn, a manufacturer is presumed to know of its product’s potential hazards. With respect to failure to warn cases, if a product creates an unreasonable risk of harm from foreseeable use or likely misuse and the ordinary user cannot reasonably be expected to appreciate that risk, then a warning is required. Chappuis, supra. The user must be warned concerning the potential dangers of a product, whether he be the purchaser or not, and it is the user who should be furnished instructions or warnings intended to prevent misuse. Chappuis, supra; Byrd v. Hunt Tool Shipyard, 650 F.2d 44 (5th Cir.1981).

The manufacturer has a duty to know all dangerous qualities of the product, whether they be of design, manufacture, composition or failure to warn, and is responsible for making these dangers known to purchasers, or users, even though the product itself is not inherently dangerous. Jowers v. Commercial Union Ins. Co., 435 So.2d 575 (La.App. 3rd Cir.1983); O’Brien v. Delta Gas, Inc., 426 So.2d 262 (La.App. 4th Cir.), writ denied, 433 So.2d 163 (La.1983). In light of these authorities, if a product is unreasonably dangerous, to anyone, in the course of foreseeable use because of design, composition or absence of adequate warnings, the manufacturer will be held liable whether or not it had actual or constructive knowledge of that reasonably foreseeable danger. The plaintiff need not worry about proving what the manufacturer knew or should have known.

In this instance, the trial judge held that plaintiff failed to prove that her injuries were caused by the allegedly defective tire. We disagree.

It is undisputed that defendant manufactured and sold the Firestone “500” radial tire to plaintiff. Moreover, the record supports the fact that there was a definite, known, and inherent defect in the design and manufacture' of the Firestone radial “500” tire. Moreover, plaintiff was never warned when she purchased the tire that this particular model was noted for its propensity to “separate.” She was not warned that all radial tires, in general, involve a risk of separation. This model tire, however, had been recalled by defendant because of this known defect. Gary Savoy, assistant manager of the Firestone store in Orange, Texas, unequivocally stated that the tire was defective because of its inherent and added propensity to “separate.” He further acknowledged in a letter to plaintiff that the defect did manifest itself in plaintiff’s tire and that it had “separated” and “could have caused a lost [loss] of control to the driver, causing damage.” For this reason, Mr. Savoy replaced plaintiff’s tire with a new one at no charge.

Plaintiff testified that she was driving at a normal rate of speed when the blowout occurred. There was no evidence to indicate poor highway conditions or road hazards where the accident occurred. The highway was safe and clear of any apparent danger. Mr. C.B. “Roy” Hryhorchuk testified that when he removed the tire from the car, he particularly noticed that the tire was new. The “rubber tits” customarily found on new tires were still noticeable as he removed the tire. He further stated, as did Mr. Savoy, that there was no evidence of any nail or object in the tire which may have caused it to blowout. Rather, it appeared to Hryhorchuk that the tire had simply disintegrated. He stated at trial that he could see through the tire and that the steel cords were protruding. Mr. Savoy, defendant’s assistant manager, clearly stated that this type of blowout, caused by “separation,” was consistent with the known defect in the tire. He noted that he had personally experienced similar problems with the Firestone “500’s” on his car and found it to be within reason that plaintiff may have run off the road as a result of the violent blowout. We agree. There are no other competing or intervening factors presented which serve to negate plaintiff’s version that she lost control as a result of the blowout. Moreover, we find no reason in the record to doubt her credibility and the credibility of her witnesses.

For these reasons, we find that the tire posed an unreasonable risk of harm to plaintiff during normal use because of its defective design, composition, and because of defendant’s failure to warn that the radial tire had a propensity to “separate.” The blowout occurred as a direct result of the defect. This determination is clear from the facts and evidence. We further hold that the blowout caused plaintiff to lose control of her car thereby causing the accident and damages.

DAMAGES

At the outset, defendant contends that plaintiff’s signature on the adjustment receipt constitutes a release of any and all personal injury claims which she may have sustained because of the defective tire. The disclaimer provides:

After thoroughly reviewing the defendant’s pleadings in the record, we do not find where this defense has been properly pleaded. Transaction and/or compromise is an affirmative defense which must be specifically pleaded in accordance with LSA-C.C.P. article 1005. Having found no such compliance with this procedural mandate, we refuse to consider this defense on appeal. Moreover, even if we were to consider the alleged defense, we do not find that the disclaimer would be effective.

Following the accident, plaintiff consulted Dr. James Cloud, an orthopedic surgeon, concerning her back pain. He diagnosed her condition as an acute cervical and low back sprain. Nearly one year later he diagnosed her condition as a chronic or long lasting type of injury. Dr. Gerald Litel saw her on one occasion and diagnosed a cervical and lumbosacral strain as well as a blunt trauma to the left elbow. Defendant’s examining physician, Dr. Walker, diagnosed her injuries as related to a pre-existing mild degenerative disc disease. The trial court found that plaintiff failed to show by a preponderance of the evidence that her injuries and resulting damages were caused by the defect or design in defendant’s product. We disagree.

As stated above, the tire was defective and caused plaintiff to lose control and run off of the road. The evidence taken as a whole indicates that plaintiff was thrown about the ear as she collided with the ditched embankment. After plaintiff related the history of the accident to Dr. Cloud, he diagnosed injuries that were consistent with the trauma described by plaintiff. We note the following testimony adduced at trial from Dr. Cloud:

“Q All right. Based on the history that she gave you and the results of your examination, can you say that the accident that she described would have been the most probable producing cause of her complaints and injury?
A Yes, sir, I can. I think it was.”

We hold that although Dr. Walker may have attributed her problem to a pre-exist-ing disease, there is compelling evidence which preponderantly shows that her injuries resulted from the accident, or, at the very least, aggravated her alleged pre-ex-isting condition. It is inescapable that plaintiff was unable to return to work for four months after the accident. She was paid $3.35 per hour, minimum wage. We attribute this interval of incapacity to the injuries she received from the accident.

The record therefore supports an award of $2,144.00 for loss of wages. Doctors’ and medical bills were $723.99. Plaintiff is entitled to recover for pain and suffering resulting from the cervical and lower back sprain which we find was caused by the accident. Uncontradicted evidence indicates that plaintiff experienced pain approximately two days after the accident, again, to the extent that she could not return to work. She remained in pain for four months. It appears from the medical testimony that plaintiff’s degenerative arthritis and disc disease became symptomatic because of the trauma suffered in the accident. We accept Dr. Walker’s testimony that aggravation of her condition could have occurred independently. However, it is inescapable that plaintiff’s symptoms were initiated by the trauma from the accident as stated by Dr. Cloud.

A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tor-tious conduct. Perniciaro v. Brinch, 384 So.2d 392, 395 (La.1980). Under the circumstances of this case and in keeping with Perniciaro, supra, we find that the plaintiff is entitled to an award of $5,000 for her pain and suffering which the evidence will justify. It is immaterial to ascertain whether her pain arose out of an injury caused solely by the accident or whether the accident simply aggravated her pre-existing condition. This award for general damages is proper even in light of plaintiff’s pre-existing degenerative condition. Romero v. Flo-Tel, Inc. 332 So.2d 596 (La.App. 3rd Cir.1976).

DECREE

It is ordered, adjudged and decreed that the judgment of the trial court be reversed and set aside and that there be judgment herein in favor of plaintiff, Virginia Brum-ley, and against defendant, Firestone Tire & Rubber Company for:

lost wages. $2,144.00
medical expenses. 723.99
general damages. 5,000.00
TOTAL . $7,867.99

together with 12% interest from the date of judicial demand. All costs are assessed against defendant.

REVERSED AND RENDERED.