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DOUCET, Judge. Plaintiffs, Katherine H. Nasello, Brenda Beckham, and Pauline N. Cataldie, each filed separate lawsuits in the 13th Judicial District Court as a result of injuries sustained from an automobile accident which occurred on June 13, 1984. The three lawsuits were subsequently consolidated for trial. Made defendants therein were Acadiana Auto Rental, Inc., d/b/a National Car Rental Sysems, Jorge Gonzales, the Louisiana Insurance Guaranty Association, Intercontinental Consultants, Inc., Airways Engineering Corporation of Virginia, and Great Northern Insurance Company. Aca-dian Auto Rental, Inc. d/b/a National Car Rental Systems, Inc., was later dismissed from the suit on a motion for summary judgment. The Louisiana Insurance Guaranty Association became involved in the lawsuits by assuming the position of the insolvent Transit Casualty Insurance Company, which had insured the car being driven by Jorge Gonzales. Mr. Gonzales was in the course and scope of his employment with Airways Engineering Corporation of Virginia and Intercontinetal Consultants, Inc. at the time of the accident. Great Northern Insurance Company provided coverage to those companies and in turn, Jorge Gonzales as an employee. At the time of the accident, plaintiffs were allegedly riding in a 1978 Cadillac automobile being driven by Pauline Catal-die in a northerly direction on U.S. Highway 167 in Evangeline Parish, Louisiana. Jorge Gonzales was allegedly driving a 1984 Chevrolet Monte Carlo automobile in a westerly direction on Highway 106 near the intersection of U.S. Highways 167 and 106 in Evangeline Parish, Louisiana. Plaintiffs urged that the sole cause of the accident and resulting injuries was the failure of Jorge Gonzales to heed the red flashing light at the intersection of Highways 167 and 106, thereby causing his automobile to collide with the automobile in which plaintiffs were traveling. Prior to the trial of this matter, Airways Engineers Engineering Corporation of Virginia, Intercontinental Consultants, Inc. and Great Northern Insurance Company brought a motion for summary judgment asking that the court declare that the Louisiana Insurance Guaranty Association assumed the position of the insolvent Transit Casualty Insurance Company, and therefore, was the primary insurance carrier covering the damages being pursued by plaintiffs. The motion for summary judgment was granted by order of the court dated October 11, 1986. This matter was tried pursuant to a stipulation entered into by all counsel and judgment was rendered in favor of plaintiffs and against the Louisiana Insurance Guaranty Association. By stipulation, Great Northern Insurance Company agreed to loan the Louisiana Insurance Guaranty Association the sum to pay off the judgment in favor of plaintiffs in exchange for which the Louisiana Insurance Guaranty Association agreed to reimburse Great Northern Insurance Company upon the final judicial determination that the Louisiana Insurance Guaranty Association was the primary insurer of Jorge Gonzales. The consolidated appeal bears our Docket Numbers: 86-1286, 86-1287, 524 So.2d 1238 and 86-1288, 524 So.2d 1238. We will decide all issues presented in all three cases in this opinion but render separate decrees in the companion cases. On appeal, defendant/appellant urges that “The trial court erred in holding that the Louisiana Insurance Guaranty Association was the primary insurer for the defendant, Jorge Gonzales.” We disagree. The Insurance Guaranty Association Law, La.R.S. 22:1375 et seq., was enacted by the legislature in 1970 as a response to the serious problem of insurer insolvencies. Ursin v. Insurance Guaranty Association, 412 So.2d 1285 (La.1982) (on rehearing). The purpose of the Insurance Guaranty Association law is stated in La.R.S. 22:1376 as follows: “The purpose of this part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policy holders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.” La.R.S. 22:1378 provides for a liberal construction of the act to effectuate the designated purpose “under Section R.S. 22:1376, which shall constitute an aid and guide to interpretation.” La.R.S. 22:1382(l)(b) provides that the Louisiana Insurance Guaranty Association shall: “(b) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.” (emphasis added) Accordingly, in the instant situation, the Louisiana Insurance Guaranty Association is to be treated as though it were the insurer that issued the policy on the car being driven by Mr. Gonzales. Billeaudeau v. Lemoine, 386 So.2d 1359 (La.1980); Hickerson v. Protective National Insurance Company, 383 So.2d 377 (La.1980). The Louisiana Insurance Guaranty Association urges, however, that it is not the primary insurer for the defendant Jorge Gonzales, by virtue of La.R.S. 22:1386, entitled “Nonduplication of recovery.” The Louisiana Insurance Guaranty Association adds that before any liability will attach to it, Section 1386 requires a claimant to exhaust all other insurance proceeds, thereby essentially making the Louisiana Insurance Guaranty Association a “remedy of last resort.” The Louisiana Insurance Guaranty Association further urges that because other insurance proceeds were not exhausted before proceeding against it, it is not liable. La.R.S. 22:1386 provides in relevant part as follows: “(1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this part shall be reduced by the amount of any recovery under such insurance policy.” The Louisiana Supreme Court has consistently held that the purpose of this provision is to prevent double recovery. Hickerson, supra, at 379. Therefore the pertinent inquiry in the instant situation regarding the application of Section 1386 is whether the trial court’s determination gives rise to a situation in which plaintiffs will receive double recovery. Such is not the case. Great Northern Insurance Company has paid off plaintiffs’ claims on behalf of the Louisiana Insurance Guaranty Association by providing what amounts to an interest free loan to the Association. The issue is not whether plaintiffs may now also recover the same amount of damages from the Association, but instead, the issue is whether the Louisiana Insurance Guaranty Association is primarily responsible for the damages awarded plaintiffs which Great Northern Insurance Company paid on behalf of the Louisiana Insurance Guaranty Association. As previously mentioned, Section 1382(l)(b) deems the Louisiana Insurance Guaranty Association “the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights and duties and obligations of the insolvent insurer as if the insurer had not become insolvent.” This court is unaware of any Louisiana authority which stands for the proposition that the Louisiana Insurance Guaranty Association is to be deemed excess insurance over and above any and all other insurance proceeds which may be applicable nor are we aware of any Louisiana authority which states that the Louisiana Insurance Guaranty Association is a “remedy of last resort.” As such, the Louisiana Insurance Guaranty Association has assumed all of the obligations of the insolvent Transit Casualty Insurance Company. The Louisiana Insurance Guaranty Association therefore provides valid and collectible primary insurance. Accordingly, for the foregoing reasons, the judgment of the trial court declaring the Louisiana Insurance Guaranty Association the primary insurer is affirmed. All costs are to be borne by the Louisiana Insurance Guaranty Association. AFFIRMED.

YELVERTON, Judge. Four lessors of movable rental equipment filed these consolidated actions against the Louisiana Insurance Guaranty Association (LIGA) pursuant to La.R.S. 22:1375-94 when the original surety for the contractor filed for bankruptcy and was declared insolvent. From judgments in favor of the plaintiff-lessors against LIGA in the amount of their various claims, the defendant appeals. Each plaintiff-lessor appealed the failure to award attorney fees. We affirm. Separate judgments, based on the same reasons herein explained in the captioned appeal, are this date being handed down in N.R. Broussard Landing, Inc. v. Louisiana Insurance Guaranty Association, 524 So.2d 857 (La.App. 3rd Cir.1988); Vermilion Rent-al, Inc. v. Louisiana Insurance Guaranty Association, 524 So.2d 858 (La.App. 3rd Cir.1988); and Broussard Barges, Inc. v. Louisiana Insurance Guaranty Association, 524 So.2d 858 (La.App. 3rd Cir.1988). The issues raised on appeal are 1) whether the trial court erred in finding that the claim for rental of the equipment was covered by the original surety bond and 2) if so, whether the 1985 amendment to La.R.S. 38:2241 limiting the surety’s obligations under the Public Works Act should be given retroactive effect? The plaintiff has answered the appeal contending the trial judge erred in failing to award attorney’s fees. The trial court wrote excellent reasons for judgment carefully explaining the stipulated facts, the issues, and his conclusions. After reviewing the record and the jurisprudence we adopt the trial judge’s reasons as our own, as follows: “The parties in the various suits submitted the cases for a decision to the Court based upon post-trial memoranda, the record filed in each case and the following stipulation of facts, to-wit: “1. The State of Louisiana entered into a public works contract with Sealand Contractors, Inc., a Louisiana corporation as principal and general contractor, which contract was dated October 23, 1984 and recorded on October 26, 1984 under Entry No. 8412173 of the records of Vermilion Parish, Louisiana. The contract bore Project No. 16-01-0082-12 and a certified copy of the Contract and Bond is deemed to be authentic and admitted for evidentiary purposes by all parties. “2. The contract provided for a performance in payment bond which document reflects that Eastern Indemnity Company of Maryland was the surety and personally executed the Contract and Bond previously identified herein. The surety, Eastern Indemnity Company, agreed to obligate itself for the entire bid price of $887,500.00. “3. The general contractor, Sealand Contractors, Inc., a Louisiana corporation, filed Chapter 11 bankruptcy proceedings on June 4, 1985, and subsequently filed Chapter 7 liquidation proceedings on October 4, 1985. “4. Eastern Indemnity Company of Maryland, is a foreign insurer, who filed and obtained an Order of Liquidation on January 28, 1985; that said Order of Liquidation conforms to the statutory provisions for covered claims under Louisiana Revised Statute 22:1379 in that the said Eastern Indemnity Company of Maryland is an insolvent insurer under the provisions of Revised Statute 22:1379(4). “5. That the amounts of the claims submitted by the plaintiffs represent charges for rental to the contractor and said amounts are stipulated to be as follows: “BROUSSARD BROTHERS, INC.— $20.653.41 “N.R. BROUSSARD LANDING, INC.— $4,324.84 “BROUSSARD BARGES, INC. — $2,416.80 “VERMILION RENT-AL, INC. — $256.80 “These amounts represent rental charges for movable equipment utilized by the general contractor in the performance of the construction project. “6. It is additionally stipulated that the amounts charged are fair and truly represent rental incurred by the general contractor for the use of such equipment on the job. “7. It is further stipulated that the plaintiffs herein failed to provide written notice in conformance with the provisions of Revised Statute 38:2242(C)(1) to the State of Louisiana. “8. The plaintiffs herein filed several materialmen and laborers liens relative to the claims stated herein as follows: “BROUSSARD BROTHERS, INC. — Liens filed March 29,1985 and amended lien filed April 4, 1985, under Entry Nos. 8504113 and 8504283, records of Vermilion Parish, Louisiana. “N.R. BROUSSARD LANDINGS, INC.— Liens filed March 29, 1985 and amended lien filed on April 4, 1985, under Entry Nos. 8504114 and 8504282, records of Vermilion Parish, Louisiana. “BROUSSARD BARGES, INC. — Lien filed June 26, 1985, under Entry No. 8508114, records of Vermilion Parish, Louisiana. “VERMILION RENT-AL, INC. — Lien filed July 18, 1985, under Entry No. 8509192, records of Vermilion Parish, Louisiana. “These cases arise out of several separate claims filed by the above entitled plaintiffs for rental charges on movable equipment which were provided to Sealand Contractors, Inc., a Louisiana corporation doing business in the Parish of Vermilion. The equipment was utilized during the construction of a control structure and earthen levee at the Rockefeller Wildlife Refuge in Vermilion Parish. Sealand Contractors, Inc. was the general contractor on the job pursuant to a contract which it received from the State of Louisiana, the owner, to perform the job in the late fall of 1984. However, during the construction of the project, Sealand experienced financial difficulties and eventually filed bankruptcy proceedings on June 4, 1985, subsequently filing liquidation proceedings on October 4, 1985. The project was terminated by the State; and the plaintiffs filed several liens relating to their accounts receivables which remain unpaid. “The parties to this suit include the plaintiffs and defendants, the State of Louisiana, Division of Administration Facility Planning and Control, as owner, and the Louisiana Insurance Guaranty Association pursuant to Revised Statute 22:1375, et seq. The Louisiana Insurance Guaranty Association, hereinafter referred to by its initials “LIGA” was named a defendant, since the bonding company or surety company, Eastern Indemnity Company of Maryland, obtained an Order of Liquidation date January 28, 1985. Eastern Indemnity Company of Maryland was the bonding company or surety which appeared on the contract pursuant to the terms of the Performance and Payment Bond as required by state law. The Contract and Bond is filed for record in the Parish of Vermilion as Entry No. 412173. “The issue in this case is whether or not plaintiffs are entitled to judgment against the Louisiana Insurance Guaranty Association (LIGA) for their claims since their claims against the State of Louisiana for their rental charges are not valid because they failed to provide written notice in conformance with the provisions of L.S.A.R.S. 38:2242(C)(1). “The Court holds that plaintiffs are entitled to judgment as prayed for. “The recent decision of our Supreme Court in the case of Valliant v. State of Louisiana, 437 So.2d 845 (La.1983) is identical to the factual situation presented to the Court. The Supreme Court discussed the history and purpose of the Public Works Contract Law (R.S. 38:2241 and 2242) and concluded that it was permissible for the surety to provide additional coverage to a contractor beyond that which is required by the Public Works Act. It specifically rejected the surety company’s argument that a lessor of equipment is not a furnisher of equipment as provided in the contract and went on to interpret the provisions of the contract and held the surety company liable to the plaintiffs who were lessors of movable equipment. “The bond in the contract which has been stipulated in this case contains the exact conditions under which the surety agreed to accept upon execution of the bond and provides as follows: ‘The condition of this performance and payment bond shall be that should the contractor herein not perform the contract in accordance with the terms and conditions hereof, or should said contractor not fully indemnify and save harmless the Owner, from all cost and damages which he may suffer by said Contractor’s non-performance or should said Contractor not pay all persons who have and fulfill obligations to perform labor and/or furnish materials in the prosecution of the work provided for herein, including by way of example workmen, laborers, mechanics, and furnishers of materials, machinery, equipment and fixtures, then said Surety agrees and is bound to so perform the contract and make said payment(s).’ “As was the situation in Valliant supra, in our case, the surety undertook for an agreed consideration the accessory obligation of assuring the contractor’s performance of its obligation to pay workers and furnishers of equipment so it is liable for such amounts. Therefore, under the prior jurisprudence, the claims of plaintiff are valid. “Defendants argue that the statute interpreted by the Supreme Court in the Valli-ant decision has been amended to exclude coverage of the bonding companies in excess of Public Works provisions. This argument is not tenable because the statutory amendment to the Revised Statute 38:2241 occurred in the 1985 Legislative Session by Act 244 and the same did not become effective until sixty (60) days from that date. However, the charges for the rental in this case by the various plaintiffs were incurred prior to the amendment. Therefore, unless the amendment has retroactive effect, then defendant’s contention is not valid. Our general rule of statutory construction is that a law can prescribe only for the future; it can have no retrospective operation. C.C. Art. 8. This general rule excepts those instances where the statute specifically provides for retroactive application or where the statute does not affect a substantive right, but is only procedural or remedial. Young v. Staman, 200 So. 187 (La.App. 2d Cir.1940); American Finance Corporation of Coushatta, Inc. v. Small, 250 So.2d 768 (La.App. 2d Cir.1971). A reading of L.S.A.-R.S. 38:2241 reveals its substantive nature in that it sets forth the requirements for a written contract and bond. Even if the statute could be given a procedural or remedial interpretation, since it makes a change in the substantive law, it must be construed to operate prospectively only. Manuel v. Carolina Casualty Insurance Company, 136 So.2d 275 (La.App. 3d Cir. 1961). Therefore, the Court will not give the amended statute retroactive application. “Defendants also contend that the fact that plaintiffs have not complied with the provisions of the Public Works Act in order to obtain a lien that their claim should be excluded against LIGA. This argument is without merit. The Act merely provides a security device to insure the payment of amounts due claimants. It does not extinguish the right to payment. Therefore, judgment is rendered in favor of each plaintiff and against each defendant in the principal sums sued for and stipulated hereinabove. “Plaintiffs also contend they they are entitled to attorney fees as provided by Louisiana Revised Statute 38:2246. These claims are denied because plaintiffs have failed to strictly comply with the provisions of that statute by proving that amicable demand for payment had been made on the principal and surety at least thirty (30) days before suit was filed and failing to file valid liens.” The judgment of the lower court is affirmed at defendant’s cost. AFFIRMED.

DOMENGEAUX, Judge. On November 13, 1986, defendant Edward J. Landry, Jr. was convicted of illegal possession of stolen things, a violation of La.R.S. 14:69. Defendant motioned for, but was denied a new trial and was sentenced as a second felony offender to serve six (6) months in the parish jail. Defendant’s trial counsel appealed defendant’s conviction based on twelve (12) assignments of error. Defendant’s appellate counsel has abandoned assignments of error No. 4, 5 and 12, leaving us with assignments No. 1 through 3 and 6 through 11 for review. FACTS On December 4, 1984, in Jennings, Louisiana, pursuant to an informant’s tip, Louisiana State Trooper Harliss Holland inspected the business premises of Edward J. Landry in search of an allegedly stolen forklift. Officer Holland found two forklifts on defendant’s business premises, one of which had altered serial numbers. A subsequent investigation revealed that the forklift with the altered serial numbers was owned by Lafferty Equipment Company and had been one of ten forklifts leased by Lafferty to Pemie Bailey Drilling Company in 1981. Pemie Bailey used this forklift on a drilling rig until 1983, at which time the entire rig was dismantled and stored with Oilfield Heavy Haulers Truck Line. The forklift had never been officially reported to the police as stolen although Oilfield Heavy Haulers had notified Lafferty Equipment that the machine was missing. Defendant, Edward J. Landry was in the business of buying and selling oilfield equipment. He obtained the forklift in question from his friend, Mr. Jessie Schex-naider. Mr. Landry gave Mr. Schexnaider a “trike” (a vehicle composed of a Harley Davidson motorcycle front end and a Volkswagen auto rear end) plus $500.00 in exchange for the forklift. Coincidentally, Mr. Schexnaider had periodically worked for Oilfield Heavy Haulers from 1981 until 1985. Mr. Schexnaider testified that he obtained the forklift through a used car trade with Mr. J.C. Cabral, now deceased, a local area junk yard dealer. Both Mr. Landry and Mr. Schexnaider described the condition of the forklift when Mr. Landry obtained it as severely smoke damaged and in need of new upholstery and several new mechanical parts. The defendant claimed to have repainted the machine and replaced the necessary parts. Mr. Lafferty, the President of Lafferty Equipment Company and the owner of the forklift testified that the forklift retailed at $21,000.00 new and, in its present condition was worth from $12,000.00 to $15,000.00. Mr. Phillip Bauer, the operations manager at Lafferty Equipment inspected the forklift after Mr. Landry possessed it. He stated that most of the items that Mr. Landry claimed to have replaced were the original parts and that the forklift showed no signs of smoke damage. Although Heavy Haulers had informed Mr. Lafferty that the forklift was missing, Mr. Lafferty had never reported the machine as stolen in order to avoid accusing a client of a crime. Additionally, as Pernie Bailey continued to pay the rental on the machine and as the rental contract made Pemie Bailey liable for the machine during the rental time period, he felt he was not the proper party responsible for reporting the loss. An acquaintance of the defendant, David Stoute testified that the defendant had told him of the terrific bargain he had gotten on the forklift and that the reason why Mr. Schexnaider sold the machine for such a low price was because the forklift was stolen in Oklahoma. A jury found the defendant guilty of possession of stolen things. After the verdict was announced, the defendant motioned for and was denied a new trial. The defendant was sentenced to serve six months in the parish jail. ASSIGNMENT OF ERROR NUMBER 1 The defendant argues that the Trial Judge erred in denying his motion for a new trial based on two grounds. Initially, the defendant argues that the Trial Judge used an improper standard to determine whether the defendant was entitled to a new trial. The defendant motioned for a new trial based on paragraphs (1) and (5) of La.C.Cr.P. art. 851 which states: The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. The court, on motion of the defendant, shall grant a new trial whenever: (1) The verdict is contrary to the law and the evidence; (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right. Defendant argues that he was entitled to a new trial under paragraphs (1) or (5) because the State presented insufficient evidence to support the jury’s verdict of guilty. In denying the defendant’s motion, the Trial Judge briefly stated his reasons: This Court heard the entirety of the evidence and feels that there was evidence sufficient for the jury to find the verdict of guilty that was returned by the jury. The motion for a new trial will be denied. The defendant argues that when a motion for a new trial is based on paragraph (1) of this article, the Trial Judge is required to determine the merits of the motion under the “thirteenth juror” standard of reweighing the evidence, as outlined in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Defendant argues that the Trial Judge erred by using the “sufficiency of the evidence” standard as outlined in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Defendant asks this Court to remand this case in order to allow the Trial Judge to determine whether the defendant is entitled to a new trial under the proper standard of review. Before addressing the merits of the defendant’s argument, we find it necessary to clarify exactly what procedural methods are available to a defendant who wishes to challenge the sufficiency of the evidence. Prior to 1975, La.C.Cr.P. art. 778 allowed a defendant to move for a directed verdict of acquittal when being tried by a jury. This procedural device enabled the Trial Judge to prevent a case from being submitted to a jury when the State failed to present legally sufficient evidence. In 1975, the Legislature amended article 778 and no longer allowed a defendant in a jury trial to utilize this procedural device. Subsequently, the Louisiana Supreme Court recognized an alternative method by which a defendant could raise the issue of legal sufficiency of the evidence through a motion for a new trial, La.C.Cr.P. art. 851(1). See State v. Winzer, 354 So.2d 533 (La.1978); State v. Williams, 354 So.2d 152 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977). However, the correctness of using the motion for a new trial as a procedural device to assert the insufficiency of the evidence was put into doubt by the ruling in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). In Hudson, the United States Supreme Court ruled that it was a violation of the Double Jeopardy Clause to retry a defendant where it had been found that the State had presented legally insufficient evidence to support a jury’s verdict of guilty. Hence, the State was precluded from retrying a defendant and an acquittal was mandatory when it was found that the State had presented insufficient evidence. In response to Hudson, and in order to create a constitutionally valid procedural device whereby a defendant in a jury trial may assert before the Trial Judge the issue of insufficient evidence, the Louisiana Legislature enacted La.C.Cr.P. art. 821, Motion for Post Verdict Judgment of Acquittal. Pursuant to article 821, a finding by the Trial Judge of insufficient evidence warrants an acquittal. Evidence is insufficient if, viewed in a light most favorable to the State, a rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, supra. However, although it would seem that the proper procedural vehicle for a defendant to assert the insufficiency of the evidence is a motion for post verdict judgment of acquittal, the Louisiana Supreme Court has continued to recognize the motion for a new trial as a proper vehicle to assert this issue. See State v. Allen, 440 So.2d 1330 (La.1983). Furthermore, when a defendant motions for a new trial based on the insufficiency of the State’s evidence, trial courts have become uncertain as to what is the applicable standard to make such a determination. In Tibbs v. Florida, supra, the United States Supreme Court definitively stated that a state is not precluded from retrying a defendant under the Double Jeopardy Clause when the Trial Judge sets aside a verdict based on his determination that, as a thirteenth juror, he has reweighed the evidence and disagrees with the jury’s resolution of the evidence. The Court outlined a critical legal distinction between a Trial Judge reweighing the evidence as a thirteenth juror and setting aside the verdict based on his disagreement with the jury’s resolution of the evidence, and the situation whereby the Trial Judge determines that the evidence was legally insufficient to support a conviction. In the first instance, the State may retry the defendant. Tibbs, supra. In the second instance, the Double Jeopardy Clause precludes the defendant’s retrial and such a finding mandates an acquittal. Hudson, supra. Hence, the thirteenth juror standard, whereby a Trial Judge is required to reweigh the evidence, has been held to be the proper standard the Trial Judge should use to determine whether a defendant is entitled to a new trial. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983); See also Justice Lemmon’s concurrence in State v. Allen, 440 So.2d at 1335. In State v. Chapman, 438 So.2d 1319 (La.App. 3rd Cir.1983), this Court, in dicta, stated that the insufficient evidence standard elucidated in Jackson v. Virginia, supra, was the proper standard a Trial Judge should use to determine whether a defendant is entitled to a new trial when the defendant has based his motion on a challenge of insufficient evidence. This Court further stated that a motion for a new trial based on other grounds enumerated in article 851 should be determined under the “thirteenth juror standard” as outlined in Tibbs v. Florida, supra. This dicta was partially based on the Louisiana Supreme Court’s continued recognition of the use of a motion for a new trial as a proper procedural device for a defendant in a jury trial to urge the issue of insufficient evidence, and as such, the need to clarify for the Trial Courts the proper standard to determine such a motion. However, the holding of Hudson mandates that a finding of insufficient evidence using the Jackson standard requires a defendant to be acquitted. As the defendant cannot be granted a new trial if the evidence is found insufficient under Jackson, it is necessary for the Trial Judge to determine the merits of a defendant’s motion through an analysis that will allow the granting of a new trial. Hence, the dicta of Chapman, requiring the Jackson analysis to determine the merits of a motion for a new trial based on insufficient evidence, appears to be inconsistent with the holding of Hudson. For the foregoing reasons, we decline to follow Chapman and we hold that a Trial Judge, in reviewing the merits of a motion for a new trial must review the weight of the evidence and, as such, make a factual determination as a thirteenth juror. The Trial Judge is not to use the Jackson analysis in determining whether a defendant is entitled to a new trial, i.e., he is not to view the evidence in a light most favorable to the State in determining whether or not a rational trier of fact could have found the essential element of the crime beyond a reasonable doubt. The Jackson standard is to be used only to determine if the defendant is entitled to an acquittal based on insufficient evidence. While the motion for post verdict judgment of acquittal is the proper procedural vehicle a defendant should use to urge insufficient evidence, since the motion for a new trial is still recognized as a proper procedural vehicle to assert this issue, we find it necessary to instruct a Trial Judge to review such a motion under both the thirteenth juror standard, in order to determine whether the defendant is entitled to a new trial and the Jackson standard in order to determine whether the defendant is entitled to an acquittal based on insufficient evidence. This is necessary to insure that a defendant’s assertion of insufficient evidence has been properly considered. Hence, a motion for a new trial urging insufficient evidence will require a dual determination by the Trial Judge. Applying the foregoing discussion to the merits of the defendant’s argument, we find that the Judge’s statements denying the defendant’s motion for a new trial complied with both the thirteenth juror standard and the Jackson standard. The Judge’s statements indicated that he agreed with the jury’s interpretation of the evidence, hence, the use of the Tibbs analysis, and that he found it legally sufficient to support the defendant’s conviction, hence, the use of the Jackson analysis. Except for an error of law, an appellate court may not review the granting or denial of a new trial. La.C.Cr.P. art. 858; State v. Robinson, 490 So.2d 501 (La.App. 4th Cir.), writ denied, 495 So.2d 303 (La.1986). As the Trial Judge’s statements denying the defendant’s motion for a new trial indicated the proper use of both standards, no error of law occurred and hence, we find it unnecessary to remand for further clarification. Alternatively, the defendant argues that the Trial Judge erred in determining that there was sufficient evidence to support the verdict. In review of a Trial Court’s ruling on the sufficiency of the evidence, an Appellate Court must view the evidence in the light most favorable to the prosecution and must determine that a rational trier of fact could have concluded that all elements of the crime have been proved beyond a reasonable doubt. State v. Sutton, 436 So.2d 471 (La.1983); State v. Gallow, 452 So.2d 227 (La.App. 1st Cir.), writ denied, 456 So.2d 1016 (La.1984). In order to be convicted of illegal possession of stolen things, the State must prove that the item was stolen, that the item was of value, that the defendant knew or should have known that the property was stolen, and that the defendant intentionally procured, received, or concealed the property. La.R.S. 14:69; State v. Moore, 439 So.2d 1178 (La.App. 4th Cir.), writ denied, 443 So.2d 587 (La.1983). The State presented evidence that the forklift was stolen through the testimony of the forklift’s owner, Mr. Lafferty, the investigating officer, Trooper Holland, and the president of Heavy Haulers, the company that stored the forklift, Mr. James Oliver. Mr. Lafferty, a qualified expert in the valuation of machinery, estimated the forklift to be worth between $12,000.00 to $15,000.00. Mr. David Stoute, an acquaintance of the defendant testified that the defendant stated to him that the forklift was stolen and that the defendant intentionally received the property under this knowledge. Viewing the evidence in a light most favorable to the State, clearly sufficient evidence of every element of the crime was presented. These assignments of error have no merit. ASSIGNMENT OF ERROR NUMBER 2 The defendant next contends that the Trial Court erred in sentencing him as a second offender. Defendant bases his argument on two issues. Initially, the defendant argues that his trial counsel may not have been informed of the defendant’s prior conviction and this may have affected the attorney’s advice to the defendant to not plea bargain. The defendant also argues that under the 1987 amendment to La.C.Cr.P. art. 893 he is entitled to probation and because his case is “in the pipeline” the amendment should be retroactively applied to his case. KNOWLEDGE OF PRIOR CONVICTION On March 22, 1985, the defendant’s trial counsel filed a motion for a Bill of Particulars and Discovery and, therein, requested information which the State had regarding the defendant’s prior convictions and arrests. On March 29, 1985, the State responded with the information that they had no knowledge of any prior arrests and convictions. Defendant’s appellate counsel states that he is not aware of whether the defendant’s trial counsel knew of the defendant’s prior convictions, but the defendant’s appellate counsel was informed by the defendant of this prior felony conviction. Defendant argues, in essence, that because he was led to believe that the State did not know of his prior felony conviction, his trial counsel may have relied on this information to the defendant’s detriment by not plea bargaining to a lesser crime in order to avoid a harsher sentence as a second felony offender. While the State’s failure to uncover such an aged conviction was error, there is no proof that the defendant relied to his detriment on the State’s mistake. Mere speculation by the defendant’s appellate counsel of what defendant’s trial counsel knew or didn’t know about the defendant’s criminal past, without proof of actual reliance to the defendant’s detriment cannot form the basis of a ruling in the defendant’s favor. As no reliance to his detriment has been shown, the defendant has failed to show prejudice to a substantive right. La.C.Cr.P. art. 921. This assignment has no merit. RETROACTIVITY OF ARTICLE 893 Effective September 1, 1987, a second offender who meets certain specified criteria may receive a probated sentence. La.C. Cr.P. art. 893(A). Prior to the article’s amendment, a second felony offender was ineligible for parole. Defendant was sentenced on November 20, 1986, and as he was a second felony offender, he was denied parole. Under the amended article, the defendant would be eligible for parole. The defendant argues that the amended article should be applied retroactively because it is procedural in nature. A defendant is to be tried under the statute in effect at the time of the commission of the crime. La.R.S. 24:171 provides: The repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. A penal statute amended after the commission of the crime that modifies or lessens the possible penalty to be imposed does not extinguish liability for the offense committed under the former statute, unless the Legislature so intended. State v. Narcisse, 426 So.2d 118 (La.), U.S. cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). As the Legislature has not expressly declared the amendment of article 893 to be retroactive, we must apply the law in effect at the time of the commission of the offense. Hence, defendant is not entitled to be resentenced to probation. This assignment lacks merit. ASSIGNMENT OF ERROR NUMBER 3 The defendant contends that the Trial Court erred in allowing into evidence several photos of the forklift and of the forklift serial numbers. The defendant contends that these photos did not accurately depict the forklift at the time he acquired it and that the enlarged photos of the forklift serial numbers were unduly prejudicial. Initially, the defendant contends that the admission of the forklift photos were improper because the photos did not accurately depict the machine’s condition when he acquired it. The defendant claims that the forklift was severely fire damaged when he obtained it and that he performed extensive repairs which substantially increased the machine’s value. The defendant argues that the photos of the repaired forklift indicated that the forklift was in this improved condition when he acquired it and hence, indicated that the defendant should have been suspicious that the forklift was stolen because he traded such a lesser valued item for it. All evidence must be relevant to be admissible. Therefore, to be admissible the photos must tend to show the commission of the offense and the intent, or tend to negate the commission of the offense and the intent. La.R.S. 15:441. Several witnesses testified that the photos accurately depicted the appearance of the forklift at the time it was seized by the authorities. Additionally, several witnesses testified that the forklift had the original equipment that the defendant claimed to have replaced and that there was no evidence that the forklift had ever been in a fire. Therefore, the State presented evidence which indicated that the photos depicted the forklift in a condition similar to the forklift’s condition when the defendant acquired it. As the photos show the value of the machine when the defendant acquired it, they were relevant to show that the defendant was aware of the incredible “deal” he made and the possibility that it was stolen. The defendant also argues that the prejudicial effect of the enlarged photos of the altered serial numbers outweighed its probative value. The defendant claims that the serial numbers had to be enlarged to four inches high before the alterations were visible. Therefore, the defendant argues, the alterations could not have been visible to the naked eye and his failure to note the alteration numbers was reasonable. The Trial Judge has great discretion in ruling on the admissibility of photographic evidence. State v. Hollingsworth, 337 So.2d 461 (La.1976). The evidence of an altered serial number is relevant to show that the item was stolen. A photograph which is otherwise admissible should not be excluded merely because it is an enlarged form. Only when an enlargement misrepresents the evidence should the photo be excluded. State v. Baldwin, 388 So.2d 664 (La.1980); U.S. cert. denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981). In the instant case, both Trooper Holland and Mr. Lafferty testified that the altered serial numbers on the forklift were not hard to locate and were easily visible to the naked eye. Hence, the State showed that the photos did not misrepresent the evidence. There appears to be no error in the Trial Judge’s ruling and the photos were therefore admissible. This assignment has no merit. ASSIGNMENT OF ERROR NUMBER 6 The defendant sought to admit certain magazine publications in order to corroborate his valuation of the forklift. The State objected to this evidence as hearsay and irrelevant. The defendant countered that these magazines were admissible to show the defendant’s state of mind. The Trial Judge concluded that only the magazine published before the defendant traded for the forklift was admissible to show the defendant’s state of mind. The remaining magazines were ruled to be inadmissible hearsay. Hearsay evidence is generally inadmissible. La.R.S. 15:434. Remarks that are offered to show the defendant’s state of mind and not for the truth asserted therein, are not hearsay. State v. Lane, 438 So.2d 1265 (La.App. 3rd Cir.1983), writ denied, 443 So.2d 1117 (La.1984). In this case, the Trial Judge ruled that only those magazines that could show the defendant’s state of mind in his valuation of the forklift were admissible. As only those magazines published prior to the defendant’s trade for the forklift could have influenced his state of mind at the time of the deal, only those publications were admissible, and the Trial Judge committed no error in excluding the remaining publications as impermissible hearsay since no other exception to the hearsay rule was applicable. ASSIGNMENT OF ERROR NUMBER 7 The defendant alleges that the trial court erred in limiting the defendant’s cross-examination of witness David Stoute. The defense counsel questioned Mr. Stoute regarding any previous arrest he may have had for possession of stolen goods. The State objected and the Trial Judge instructed the jury to disregard this question. La.R.S. 15:495 states that: Convictions, but not arrests ... are admissible to impeach the credibility of a witness. The defendant argues in his brief that he did not intend to impeach the witness’s credibility by this question. Instead, the defendant argues that he wished to show that Mr. Stoute also had outstanding charges against him and therefore, had an interest in seeing the defendant convicted. When questions regarding the arrest of a witness are not asked to impeach the witness’ general credibility but instead are asked to demonstrate the leverage the district attorney has over the witness as a result of the pending charge, such cross examination is not precluded by La.R.S. 15:495; State v. Brady, 381 So.2d 819 (La.1980). While the defendant’s attorney objected to the Trial Court’s ruling denying him questions regarding Mr. Stoute’s prior arrests, the defense attorney failed to state on the record his grounds for objecting. This would have properly been done through an offer of evidence outside the presence of the jury. On appeal, we are unable to determine whether defense counsel was attempting to impeach the witness’ credibility, which is impermissible under La.R.S. 15:495, or whether he was attempting to show bias. Hence, as the defendant has failed to properly preserve his objection for appellate review, we must affirm the ruling of the Trial Court. ASSIGNMENT OF ERROR NUMBER 8 The defendant challenges the admissibility of certain documentary evidence. This evidence consists of the defendant’s application for a certificate of title for ownership of the “trike”, a bill of sale of the “trike” to the defendant, and a form where the defendant represents that he will maintain liability insurance on the “trike”. The defendant raises five (5) separate challenges to the admission of this evidence. AUTHENTICATION Defendant argues that the documents in question are copies of official documents and must be authenticated to be admissible. The defendant did not object to the introduction of these documents on the basis that they lacked certification by the custodian of the record, but only argued that the certification on the documents was insufficient to authenticate the documents. The rule of authentication, evidencing the genuineness of a document, must always be satisfied. State v. Cobb, 419 So.2d 1237 (La.1982). La.R.S. 13:3711 provides: Copies of any books, records, papers or other documents of any of the executive and administrative departments, boards, and agencies of this state, and copies of any books, records, papers, and other documents of any of the political corporations, bodies politic, boards, departments and agencies of this state and the parishes and municipalities thereof, when certified as being true copies by the official, officer or employee in whose custody they may be shall be admitted in evidence in all courts of this state, equally with the originals of such books, records, papers or other documents. La.R.S. 13:3712, in pertinent part, provides: A. Certified copies of books, records, papers or documents provided in La.R.S. 13:3711 shall be prima facie proof of the existence and contents of the originals and of any act, transaction or occurrence or event as a memorandum of which said books, records, papers or documents were kept or made. The Trial Judge has great discretion in determining the sufficiency of the foundation which is necessary for the introduction of evidence. State v. Cobb, supra. Under La.R.S. 13:3711 and 13:3712, certified documents of state agencies are admissible into evidence. The documents admitted as state exhibit S-5, have been reviewed, and are properly certified by the custodian of the records, and as such, they were properly authenticated and admissible. OTHER CRIMES EVIDENCE, PRIEUR NOTICE AND RELEVANCY The defendant alleges that the Trial Court erred in introducing these documents because they inferred that the defendant committed the offense of sales tax evasion. Hence, the defendant argues that the State was required under State v. Prieur, 277 So.2d 126 (La.1973), to provide notice of its intention to introduce evidence of other crimes. The defendant testified at trial that he felt the value of the trike was $4,500.00 when he traded it for the forklift. The documents in question included an application for title filed by the defendant and a bill of sale which showed that the defendant placed a value of $500.00 on the trike when he obtained it. Contrary to the defendant’s assertion, the valuation of the trike on the documents does not indicate evidence of another crime. Instead, it is evidence that the defendant actually assessed the value of the trike to be $500.00 when he acquired it. While the defendant at trial stated he estimated the value of the trike to be much greater than $500.00, this documentary evidence effectively impeached the defendant’s assertion that he truly valued the trike at this amount. This valuation also infers that the defendant traded a very low valued item for a forklift valued at defendant’s own minimum estimate of $5,000.00. This implies that the defendant could not possibly have believed he was trading equally valued items when he obtained the forklift in exchange for the trike. Hence, the evidence was relevant to show that the defendant had good reason to know that the forklift was stolen when he paid such a lesser amount for it. NOTICE OF INCULPATORY STATEMENTS The defendant also contends that these documents were inculpatory statements and that he should have been notified under La.C.Cr.P. art. 768, of the State’s intention to use this inculpatory evidence. Article 768 requires the State to advise the defendant prior to the opening statement, and in writing, if it intends to introduce an inculpatory statement into evidence. “Inculpatory statement” in this article creating the State’s disclosure duty, refers to an accused’s out-of-court admission occurring after a crime, which implicates or incriminates the speaker as to the commission of that crime. State v. Quimby, 419 So.2d 951 (La.1982); State v. Willis, 438 So.2d 605 (La.App. 3rd Cir.1983). These documents were written prior to the defendant’s acquisition of the forklift, hence it does not fall within the disclosure requirement of article 768. IMPROPER REBUTTAL EVIDENCE AND ASSIGNMENT OF ERROR NUMBER 10 These documents were introduced during the State’s rebuttal. The defendant complains that these documents were improper rebuttal evidence because this evidence in jected a new issue into the trial which should have been raised in the State’s case in chief. La.C.Cr.P. art. 765(5) states that in the normal order of a criminal trial the State presents its evidence, the defendant presents his evidence, and then the State presents evidence in rebuttal. The defendant presented evidence in his case that he estimated the “trike” to be worth $4,500.00 when he traded it for the forklift. Clearly the documents in question rebutted the defendant’s claimed state of mind. The Trial Judge did not abuse his discretion by allowing these documents in as proper rebuttal evidence. ASSIGNMENTS OF ERROR NUMBERS 9 AND 11 The defendant next contends that the Trial Court erred by allowing the State to conduct improper rebuttal examinations on the State’s three rebuttal witnesses: David Davenport, Phillip Bauer and John Bates, III. The defendant contends that the rebuttal evidence raised new issues which should have been introduced during the State’s case in chief. The defendant also argues that the Trial Court erred by not permitting him to introduce surrebuttal evidence. At the trial, the defendant failed to object to the testimony on the grounds that it introduced new issues. Under La.C.Cr.P. art. 841, an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. However, even had defendant properly reserved his right to raise this issue, our review of the testimony of these three witnesses reveals that no new issues were raised on appeal. The defendant claims that the Trial Judge erred in refusing to allow the defendant to present surrebuttal evidence. La.C.Cr.P. art. 765 which covers the normal order of a criminal trial, provides that the State is allowed to present rebuttal evidence. Therefore, the defendant does not have a statutory right to surrebut the prosecution’s rebuttal. Under article 765(5), in the normal order of a criminal trial, the introduction of any additional evidence is solely within the discretion of the Trial Court. State v. Howard, 449 So.2d 69 (La.App. 4th Cir.1984). When the State in rebuttal does not introduce any new matters other than those brought forth by the defense in its case in chief, the denial of the request for surrebuttal will generally not be found to be an abuse of discretion. Howard, supra. As no new issues were raised by the State on rebuttal, no error arises from the Trial Judge’s ruling. These assignments lack merit. For the above and foregoing reasons, the defendant’s conviction and sentence are affirmed. AFFIRMED.

GOTHARD, Judge. This controversy arose from the sale of an immovable property at private sale by a succession to a third party. From a judgment in favor of the succession, a co-owner who had redeemed the property appealed. The succession answered the appeal. We affirm. Rosetta Walker Gipson died intestate on November 10, 1970, her husbands Henry Gipson and Jacob Green having predeceased her. The succession was opened in 1973 and an administrator appointed. As Rosetta Walker had no children, the heirs were her brothers and sisters, several of whom predeceased her and were represented by children or grandchildren. In all there were about forty heirs. Frank Walker had paid the property taxes beginning in 1972, when he redeemed the property after it had been sold for 1970 taxes. He continued paying the taxes and maintaining it until 1981, when he was ordered to remove items from a building on the premises by the attorney for the succession. On May 23, 1982 Walker purchased the property for unpaid 1981 taxes and recorded the tax deed in Jefferson Parish. Virtually no activity took place in the succession proceedings until 1984, when the third administrator was appointed the first two having resigned because of age and ill health. In 1985 Sandra Walker, the new succession representative, received an offer to purchase the property from a third party. The offer was for $8,000 and was later raised to $10,000. Over the years prior to 1985 Frank Walker had the grass cut and saw to the property’s general maintenance. He expressed an interest in owning the property himself, but when informed of the third party’s $10,000 offer, by his own testimony he responded he could not pay that price. In September, 1985 he filed a proof of claim for monies expended on taxes, on the redemption, and on the maintenance expenses, plus interest. In October the administratrix petitioned for a private sale and on November 20, 1985 the property was sold to Walter Hall, with warranty. The suit against Frank Walker filed March 21, 1986, captioned “Petition for Declaratory Judgment, Specific Performance, and Redemption of Property and Nullity of Tax Sale”, arose from Walker’s refusal to convey his rights to the property back to the succession, which refusal resulted in a cloud on the title. The suit sought a judgment nullifying the tax sale and ordering Walker to convey his rights, title, and interest in and to the property to the succession. Trial was held and judgment was signed on May 1, 1987. The trial judge held that because mandatory legal notice to the property owners (the heirs) prior to adjudication by tax sale was insufficient, the tax sale to Frank Walker was null and void. He further decreed that the sale of the property by the administratrix was valid and binding. He ordered that the succession pay Frank Walker $2,616.30 for his payment of taxes, interest, expenses in connection with succession property, and costs of the tax sale of 1982. Additionally, the succession was cast for court costs. The issues raised by the appellant, Walker, all relate to the validity or not of the tax sale: 1) whether the trial judge erroneously changed his position of disallowing testimony attacking the tax sale by requesting post-trial memoranda on validity of the sale, thereby prejudicing the appellant’s ease; 2) whether he was in error in not recognizing the presumption of validity of tax sales; and 3) whether the succession representative was estopped from attacking the sale, under the doctrine of equitable estoppel. The succession, in answering the appeal, raised four issues, three of which were to be considered only if this court should find the trial court in error in annulling the tax sale. As we find the judgment of the trial court to be correct, we pretermit discussion of these issues. However, we shall consider the remaining issue of appellees, whether the court abused its discretion in casting them for court costs. The Constitution of 1974, article 7, Sec. 25 (and its predecessor) provides mandatory notice of tax delinquency, which must be given to a tax debtor before his property may be sold for taxes. Childress v. Johnson, 387 So.2d 1217 (La.App. 1st Cir.1980), writ denied, 393 So.2d 744 (La.1980). LSA-R.S. 47:2180 clearly sets out the mandatory procedure to be followed by the tax collector in notifying the record owners of immovable property of delinquency and, ultimately, of a forthcoming tax sale: A. On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have been assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law. B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. In the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor’s property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation.... Although his proffered testimony is conflicting, Andrew LeBlanc, director of property tax collection for the Jefferson Parish Tax Collector, stated that the only notices of the delinquency were addressed to Henry Gipson and wife. Copies of the final notice, addressed to the two decedents at 6128 West Bank Expressway, Marrero, and of the sheriffs sale, which referred to that notice and to newspaper advertisements, were introduced into evidence. The law as to validity of notice to a deceased person is summarized in Blythe v. Zor, Inc., 148 So.2d 832 (La.App. 4th Cir.1963), writ denied, 150 So.2d 768 (La.1963), as follows at 833: Notice of delinquency as to a deceased person, unless served on his heirs or legal representatives, is irregular; and a sale made pursuant to notice addressed to the deceased, in whose name the property is assessed, is void. Butler v. D’Antonio, 231 La. 275, 91 So.2d 345; Board of Commissioners, etc. v. P.M. Realty Company, La.App., 146 So.2d 21; Scheller v. Goode, La.App., 69 So.2d 96; Doll v. Montgomery, La.App., 58 So.2d 573; Fountain v. Kirby Lumber Corporation, La.App., 199 So. 603; 27 T.L.Rev. 128. Documents filed with the appellant’s proof of claim indicate that beginning with 1973, all tax notices were mailed to Henry Gipson and Wife at 6128 West Bank Expressway, which is Frank Walker’s residence. Frank Walker argues that all the heirs received notice of the imminent tax sale in 1982, as he made copies and distributed them to the heirs, and that there was no opposition to his buying the property in his own behalf. The certificate of death and heirship filed in the succession named eleven brothers and sisters as of 1973, of whom some had already died. Walker testified that he gave copies of the final notice to the living siblings, along with the current administratrix and her predecessor. For the heirs who predeceased and left descendants he gave the following notice: “Q. Did you contact each one of their children? A. No I contacted the head, the oldest one in the family which was Edward Walker. He’s the oldest in Ed Walker’s family. Charles [Walker] tends to Elijah’s [Walker] business in the family.” With more than forty heirs this would be inadequate notice, even if the law allowed constructive notice. Further, as the only formal notices were mailed to Walker’s home address, it cannot be said that failure of many of the heirs to receive notice was due to their own fault, as in Securities Mortgage Co., Inc. v. Triplett, 374 So.2d 1226 (La.1979). Accordingly, the sale to Walker was a nullity. In addition, regardless of his motives and intents, because he was a co-owner, his purchase of the property at the tax sale operated only as a payment of the taxes rather than as a sale and inured to the benefit of all the owners who could assert their rights by paying their pro-rata share of the taxes. White v. White, 233 So.2d 289 (La.App. 1st Cir.1970). We have reviewed the testimony and record carefully to determine whether or not the appellant was prejudiced by the judge’s request for a post-trial memorandum on the issue of validity of the tax sale, when at the beginning of trial he had disallowed testimony on that issue. We point out first that the judge allowed the tax collector’s testimony regarding notice on proffer. The appellant was allowed to present his own evidence as to the notice he provided to the co-heirs and his intention to buy the property for himself. The appellant complains of being prohibited from submitting evidence in regard to prescription, which he raised as a “defense” in his answer but did not plead as a formal exception. If the content of an allegation is sufficient the allegation may be considered an exception. La.C.C.P. art. 865. However, Walker did not comply with La.C.C.P. art. 924, Form of Exceptions, which provides that the grounds for the exception must be stated “with particularity”. Our examination of the trial transcript reveals no ruling at all on prescription, as no questions were asked in that regard. Counsel for defendant did ask a question regarding possession, to which Walker replied that he had been in possession from 1973 to 1981. The court disallowed further questions on possession because Walker had not previously asserted adverse possession. Appellant’s post-trial memorandum reiterates his defense of having copied the notice for other heirs, and emphasizes the fact that all the heirs agreed he should have the property. The fact that the heirs other than himself agreed to sell to a third party belies his allegation of universal agreement. He argued also a defense of laches; however, the cases cited were distinguishable from ours on facts. In one, Bridges v. Trevino, 64 So.2d 528 (La.App. 1st Cir.1953), filed twenty years after the tax sale, the several owners had received formal notice of the tax delinquency. In the other, Harrell v. Harrell, 142 So. 138 (La.1932) there was no attack on proceedings in the tax sale and the court held that thirty-seven years was too long for the plaintiffs to wait to invoke the equitable doctrine of co-ownership. Only in his appellate brief does the appellant state the grounds of his defense of prescription. He asserts that under La. Const. 1974, art. 7, sec. 25(C) the proceeding to annul has prescribed. That provision reads as follows, in pertinent part: (C) Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given. The sale took place on May 23, 1982. He alleges in brief that notice of the sale was served on the heirs at the end of the three year redemption period. If official notice had indeed been given after three years, then the plaintiffs would have had to file the suit within six months of its service in accordance with the Constitution. Otherwise, the five year limit controlled and the suit was filed timely, on March 21, 1986, less than five years after the tax sale. In his brief appellant asks this court to remand for testimony on possession and prescription. La.C.C.P. art. 2163 provides that a peremptory exception may be filed in the appellate court, under certain circumstances, as follows: The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception. In the case before us the record does not contain the grounds for the exception. For that reason we overrule the exception. Jenkins v. Tillman, 221 So.2d 895 (La.App. 1st Cir.1969). For the reasons discussed above, we find that the appellant was not prejudiced by the trial judge’s rulings as to testimony and pretermit discussion of other issues except for costs. The appellee complains that the court abused its discretion in ordering it to pay all costs. Under La.C.C.P. art. 1920, ordinarily costs are assessed to the party cast; however the court may assess all or part against any party, “as it may consider equitable”. Although the judge did not articulate his reasons, he no doubt considered the testimony and made his decision on the basis of fairness. We find no abuse of discretion. For the reasons assigned above, we affirm the judgment appealed from. Costs of this appeal are to be borne equally by the appellant and appellee. AFFIRMED.

ON WRIT OF REVIEW KLIEBERT, Judge. Ms. Jean Wood, in her representative capacity, filed a suit for damages on behalf of her minor son on October 29, 1985 alleging that David Hayes, a Jefferson Parish employee, committed sexual assault on her minor son. Subsequently, on April 25, 1986, under the same docket number, she filed a pleading entitled “Petition for Intervention” claiming damages for herself for loss of consortium. In response to the so-called petition in intervention, the Parish filed an exception of prescription grounded in the one year prescription for torts prescribed by Civil Code Article 3492. In defense of the exception, Ms. Wood argued her pleading was an incidental demand and timely filed under the provisions of Code of Civil Procedure Article 1067. The trial judge maintained the exception and dismissed the petition for intervention. Then Ms. Wood filed a motion seeking leave of court to amend the original petition (filed in her representative capacity) to allege her personal damages for loss of consortium and to vacate the court’s ruling on the exception of prescription and permit her to voluntarily dismiss the petition for intervention, or, alternatively, for a new trial. When the trial judge denied all relief requested in the motion, an application for supervisory writs was filed with this court. We granted a writ of review and set the case for hearing on our regular appellate docket. For the reasons hereafter stated, we affirm the rulings of the trial court on both issues. Counsel for Ms. Wood argues that her individual pleading entitled “Petition for Intervention” was filed pursuant to the provisions of Code of Civil Procedure Article 1091 and is an incidental demand (as defined by Code of Civil Procedure Article 1031); therefore, under the provisions of Code of Civil Procedure Article 1067, which provides as follows, the petition is not barred by prescription: Art. 1067. When prescribed incidental or third party demand is not barred An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand. In support of his position counsel for Ms. Wood cites Romero v. Richard, 425 So.2d 355 (3rd Cir.1982) which followed the reasoning of Washington v. Goldate, 411 So.2d 1224 (4th Cir.1982). In the latter case, Washington’s survivors filed suit for his wrongful death in an accident which occurred on July 5, 1978. At the time of the accident, Washington was driving a truck owned by his employer, Cort. More than one year after the accident, but within ninety days of a service of the original petition filed by Washington’s survivors, one of the insurers of Cort filed a petition in intervention claiming damages for the truck being operated by Washington at the time of the accident. The Fourth Circuit, citing C.C.P. Article 1091, found Cort had a right to intervene and since an intervention is an incidental demand, Article 1067 applied. Further, it found the filing of the intervention within ninety days of the service on any defendant, including the last to be served, was sufficient. Subsequently, however, in Hildebrand v. Schnell, 441 So.2d 395 (4th Cir.1983) a different panel of the Fourth Circuit, citing Moraus v. State, through DOTD, 396 So.2d 596 (3rd Cir.1981) reasoned that a claim asserted by a passenger over one year after the first driver commenced an action against the other four drivers asserted an independent cause of action and consequently was not an incidental demand within the meaning of C.C.P. Article 1067. Nevertheless, since it found the intervention was not filed within the ninety days prescribed by the article, it concluded it was unnecessary to overrule the Washington case, supra. We believe C.C.P. Article 1067 is designed to enable a litigant who is brought into a suit, after prescription would normally have run, to assert his claim within ninety days against the party who brought him in, or where his cause of action is the same as that of other existing litigants, against parties in the suit other than the one who brought him into the litigation. It is not designed to allow a virtual stranger to the litigation to enter into the lawsuit and assert claims which are independent of those being litigated. Moraus v. State, through DOTD, supra; Hildebrand v. Schnell, supra; See also Louviere v. Shell, 440 So.2d 93 (La.1983). Thus, under our interpretation of Article 1067, the prescription issue turns on whether Ms. Wood’s intervention is the same or a different cause of action from that already in litigation. The claim for damages by Jon Hayes (Ms. Wood’s minor son) and Ms. Wood arises out of the same facts; however, the loss of consortium claimed by Ms. Wood is a separate and distinct cause of action from her son’s claim. See Ferguson v. Burkett, 454 So.2d 413 (3rd Cir.1984); Carroll v. Newtron, Inc., 477 So.2d 719 (3rd Cir.1985). Hence, C.C.P. Article 1067 has no application to the situation involved here. We next turn to Ms. Wood’s contention that she has a right to amend the original petition and to seek authority to file the amendment under the provisions of C.C.P. Article 1153 and, where, as here, the action asserted in the amended petition arises out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of filing the original pleading. Since her amended petition would relate back to the date of filing of the initial pleading, she contends her claim was timely filed. In Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La.1985), where the amended petition, filed after prescription had run, added major children as plaintiffs and changed the husband’s capacity in a survival action from the administrator of the children’s estate to his individual capacity, the supreme court set forth the following four-part test to determine whether the amended petition would be allowed to relate back to the date of filing the original petition, to-wit: (1) The amended claim arises out of the same conduct, transaction or occurrence set forth in the original pleading; (2) The defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) The new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) The defendant will not be prejudiced in preparing and conducting his defense. Since the children’s claim in Giroir fulfilled those criteria, the amendment related back to the date of the original petition. Here, defendants knew of the existence of Ms. Wood because she sued on behalf of her minor son in the original petition and has a close familial relationship with her son. However, the claim by Ms. Woods for the loss of consortium of her minor son is wholly new and unrelated to her son’s original claim for damages. The addition of Ms. Wood individually as a plaintiff and the assertion of her personal claim for damages would change the basic underlying claim of the original demand. This distinguishes the situation here to that involved in the Giroir case. In Giroir, the children were added by amended petition to their father’s wrongful death and survival action based on the death of their mother, “and the addition of them as plaintiffs does not change the basic underlying claim” ('Giroir at page 1045) because it is the same cause of action merely being asserted by additional plaintiffs. Here Ms. Wood’s amendment attempts to assert a new cause of action which changes the underlying claim from damages for mental problems, etc., resulting from sexual abuse, to a loss of consortium resulting from those mental problems. In Poirrier v. Browning-Ferris, 517 So.2d 998 (3rd Cir.1987) writ denied November 20, 1987, the Third Circuit concluded the wife’s claim for lack of consortium was a separate cause of action from the husband’s claim for personal injuries and hence maintained an exception of prescription to the wife’s effort to assert her claim for filing an amendment to the husband’s original petition for personal injuries. “When a suit filed by a second party states a different cause of action than the suit by the first party, although each cause of action is based in part on common facts, the first suit does not interrupt prescription as to the subsequent cause of action ... ” Louviere, supra. Therefore, the second supplemental and amending petition does not meet the requirements for relating back to the date of filing the original petition required by C.C.P. Article 1153. In our opinion, therefore, the rulings of the trial court were correct. Accordingly, for the foregoing reasons, the application for writs of mandamus and prohibition is denied. Costs are to be borne by the applicant. RULINGS AFFIRMED; WRIT OF MANDAMUS DENIED.

LOTTINGER, Judge. Defendant was indicted for the first degree murder of Julia Szari. La.R.S. 14:30. Defendant entered a dual plea of not guilty and not guilty by reason of insanity. At a second trial, the jury found defendant guilty as charged. The trial court sentenced the defendant to life imprisonment without benefit of probation, parole, or suspension of sentence upon the recommendation of the jury. Defendant has appealed, urging six assignments of error: 1. The trial court erred by denying his motion to suppress the statements he made while in the custody of the Livingston Parish Sheriff’s Office. 2. The trial court erred by holding that defendant made a knowing and intelligent waiver of his legal and constitutional right to remain silent. 3. The trial court erred by denying defendant’s motion for mistrial when the prosecutor mentioned evidence of other crimes in the state’s opening statement without prior notification to defendant of the state’s intention to introduce other crimes evidence at trial. 4. The trial court erred by admitting into evidence the testimony of Jessie Lord who was acting secretly as a state agent after defendant had retained counsel and in violation of defendant’s constitutional rights. 5. The trial court erred in denying defendant’s motion for mistrial when the prosecutor remarked and/or testified, during cross-examination of a defense witness, as to the ultimate issue of fact before the jury. 6. There was insufficient evidence for a jury to convict defendant of First Degree Murder. FACTS The instant offense occurred in Livingston Parish on September 17, 1983, at the victim’s business establishment, the Rainbow Tavern. Szari operated the business and resided in a room located behind the tavern. A bystander noticed that Szari was “standing or half standing, half sitting in her car” with the door partially open in front of another nearby tavern. The bystander asked Szari what was the matter. The victim responded: “[H]e tried to kill me and I am hurt ... bad[.] I am dying.” The witness then asked the victim who had attacked her. Szari replied “[Y]ou know him, he is the one with the hat.” She also stated that it was a knit hat. The eyewitness summoned the Livingston Parish Sheriff’s Office and an ambulance. Upon arrival, a sheriff’s deputy managed to obtain a brief description of the assailant from Szari. The victim described the assailant as white, tall, and slim. The victim also indicated to the deputy that the assailant wore a “hat or something” on his head. After being treated at a local emergency facility, Szari remained in a hospital until her death on October 9, 1983. At the autopsy, it was determined that Szari’s death was caused by a blow to the victim’s forehead. A number of days after the assault, the deputies received information from a local bank that two checks, dated September 17, 1983, had been cashed on Szari’s bank account. The bank had been previously notified that the victim’s checkbook had been stolen. A number of days later, the deputies were contacted by officials of the Livingston State Bank. Both checks had been cashed by a local food store on Szari’s bank account. Upon examining the signature card of Szari’s account, the bank determined the signatures were unauthorized and refused to honor both checks. The deputies interviewed the food store clerk for the identity of the person who signed the checks. The individual was described by the clerk as male, white, and other information that lead to a composite drawing of the person. This composite drawing lead to Wascom’s arrest. On September 30, Wascom was arrested and given his constitutional rights by the arresting deputy. Defendant was not questioned until the following day. After again being advised of his Miranda rights, defendant made a series of inculpatory statements and confessions in regard to the instant offense. The statements and confessions, with the exception of defendant’s initial statement, were witnessed by both Foster and Stewart. Before defendant made his initial statement, Foster advised him of his constitutional rights, and defendant signed a waiver of rights and a consent to questioning form. Foster testified that, from the time of defendant’s arrest until about 6:00 p.m. on October 1, he advised defendant of his rights at least four times and stated that defendant indicated that he understood his rights. Several of the statements were recorded on audiotape, and defendant’s final statement, which was elicited at the Rainbow Tavern was recorded on videotape. At trial, the state introduced into evidence the video tapes and transcription of the audiotapes. Wascom admitted he went to the Rainbow Tavern at about “after 10 o’clock.” Once Wascom was inside, after the victim gave Wascom a cup of ice, Wascom attacked her by hitting her with a bar stool. He then stabbed the victim with a knife as she apparently tried to defend herself and/or to fight him with a broom. Defendant admitted having taken the victim’s purse, which he said contained about seventy to eighty dollars, and having cashed two of her checks. About three or four days later, defendant borrowed his mother’s car and drove to the Courtney Bridge, where he disposed of the knife he had used to stab the victim. During the period in which defendant gave his statements on October 1, he executed a handwritten waiver whereby he agreed to participate in a physical lineup without the presence of an attorney. At the lineup, the food store clerk identified defendant as the individual for whom he had cashed Szari’s checks. The clerk later identified Wascom as that same individual at trial. Handwriting samples were obtained from the defendant and delivered to a forensic document expert. At trial, he testified that he compared Wascom’s handwriting samples to the signatures on Szari’s checks and concluded that, in his expert opinion, the person who wrote the handwriting samples also wrote the writing on the checks. ASSIGNMENTS OF ERROR NOS. 1 AND 2 By means of these assignments, defendant contends that the trial court erred (1) by denying his motion to suppress the statements he made while in custody because the state failed to prove the statements were freely and voluntarily made, and (2) by holding that Wascom made a knowing and intelligent waiver of his legal and constitutional right to remain silent. Defendant argues that, because of his intoxication induced by both alcohol and drug consumption, he lacked the capacity to make a knowing and intelligent waiver of his constitutional rights and that, thus, his statements to the police were not freely and voluntarily made. Before a confession can be admitted into evidence, the state has the burden of affirmatively showing that it was made freely and voluntarily, and not influenced by fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451. “Furthermore, if the statement was elicited during custodial interrogation, the state must show that the defendant was advised of his constitutional rights.” State v. Narcisse, 426 So.2d 118, 125 (La.1983), cert. denied, 464 U.S. 865 (1983). “Intoxication can render a statement involuntary if the intoxication is of such a degree that it negates defendant’s comprehension and renders him ‘unconscious of the consequences of what he is saying.’ ” Narcisse, 426 So.2d at 125. Whether intoxication exists and whether it is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. State v. Robinson, 384 So.2d 332 (La.1980). With regard to the relationship between diminished mental or intellectual capacity and involuntariness, the Supreme Court has noted that such a condition does not of itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Benoit, 440 So.2d 129, 131 (La.1983). The critical factors are whether the defendant was able to understand the rights explained to him and whether he voluntarily gave a statement. State v. Young, 469 So.2d 1014, 1018 (La.App. 1st Cir.1985). After carefully viewing and listening to defendant’s videotaped statement and listening to his statements recorded on audiotape and in light of all the evidence adduced at the suppression hearing and the evidence introduced at trial pertinent to defendant’s contentions, we find that the state carried its burden of proving that defendant was both capable of and did in fact knowingly and intelligently waive his constitutional rights before making his statements and that such statements were made freely and voluntarily. The evidence showed defendant was advised of his constitutional rights at least four times, that he was able to understand those rights (which included the right to remain silent), that he waived those rights, and that he made his statements voluntarily. Cf State v. Narcisse, supra; State v. Delore, 381 So.2d 455 (La.1980); State v. Wille, 496 So.2d 375 (La.App. 5th Cir.1986), writ denied, 497 So.2d 301 (La.1986). Hence, the trial court properly allowed the audiotapes, videotape and the transcripts of the audiotapes to be admitted into evidence. These assignments lack merit. ASSIGNMENT OF ERROR NO. 3 By means of this assignment, defendant contends that the trial court erred by denying his motion for mistrial when the prosecutor mentioned evidence of other crimes during the state’s opening statement, without having given prior notification to him of the state’s intention to introduce other crimes evidence at trial. During the prosecutor’s opening statement, he related that the “first break” in the case occurred when the sheriff’s office learned that two of the victim’s personal checks had been cashed at Charter Marketing, that the victim’s bank had refused to honor the checks because they bore unauthorized signatures, and that Brian Penny would identify defendant as the person who signed the checks. Thereupon, defense counsel entered an objection. Outside the presence of the jury, defense counsel moved for a mistrial on the basis that the prosecutor had referred to inadmissible other crimes evidence, i.e., forgeries; and, in support of his motion, he cited State v. Prieur, 277 So.2d 126 (La.1973). The prosecutor countered that Prieur was inapplicable because the forgeries were part of the res gestae. The trial court correctly refused to grant the motion. The prohibition against references to inadmissible evidence of other crimes under La.Code Crim.P. art. 770 excludes the evidence of words or actions which form a part of the res gestae. State v. Brown, 428 So.2d 438 (La.1983); La.R.S. 15:447. To constitute res gestae, those actions or words must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. La.R.S. 15:448. Prieur recognized the res gestae exception to the inadmissibility of evidence of other crimes, and Prieur “does not require the state to provide notice to the defendant of crimes that fall within the res gestae exception.” State v. Belgard, 410 So.2d 720, 723 (La.1982). Because defendant forged and cashed two of the victim’s checks at a time in close proximity to the robbery and attack perpetrated against her, those events formed a continuous chain of events with the instant offense and were within the res gestae. State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982); State v. Sanford, 446 So.2d 1381 (La.App. 1st Cir.1984). “The state is permitted to present to the jury the criminal act charged in its entirety. To hold otherwise would require that the state present only a part of the sequence of events which formed the criminal transaction.” State v. Brown, 428 So.2d 438, 442 (La.1983). For the foregoing reasons, this assignment is without merit. ASSIGNMENT OF ERROR NO. 4 By means of this assignment, defendant contends that the trial court erred by admitting into evidence the testimony of Jessie Lord (Lord) who was acting as a state agent after defendant had retained counsel and in violation of defendant’s right to counsel under the U.S. Const. Amend. VI and La. Const, art. I, § 13. At defendant’s (second) trial, Lord testified that he was a former federal prison inmate, that he had been brought to Louisiana to testify in an (unrelated) murder ease in Tangipahoa Parish, and that he had been held in the Livingston Parish Jail for three months before defendant’s trial. In his trial testimony, he recounted various incul-patory statements and a confession made to him by defendant in regard to the instant offense while the two men were incarcerated in the Livingston Parish jail. Initially, we note that defendant neither offered a contemporaneous objection nor moved to suppress the statements and confession on the constitutional grounds he now argues on appeal. Nonetheless, this court can properly review such an additional ground to suppress when it is fully argued later at trial on the merits or at a hearing on a motion for new trial. See State v. Serrato, 424 So.2d 214 (La.1982). However, in this ease defendant failed to argue the additional ground at trial or on a motion for new trial. Hence, defendant’s argument is not properly before this Court. In any event, we find defendant’s contention to be without merit. Lord testified that, during his period of incarceration at the Livingston Parish Jail, no official (local, state or federal) requested that he obtain any information from defendant. Lord testified that the Livingston Parish jail warden was the first person he told that defendant was admitting the instant offense. When questioned as to whether or not the warden suggested that he try to secure more information from defendant, Lord denied that the warden had done so, although he stated the warden told him to keep his “eyes and ears open” and to let him know “if you hear anything else about it.” An FBI agent, testified that Lord had been brought to the Livingston Parish Jail and incarcerated there as a material witness in a homicide case that originated in Tangipahoa Parish, not for the purpose of obtaining information from any inmate in that jail, including Wascom. The warden testified that Lord had been incarcerated in the jail for about four to five months prior to the instant trial and that neither he nor anyone else, to his knowledge, ever requested Lord to elicit information from defendant. The warden denied that, he had ever asked Lord to go back and obtain more information from the defendant. In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985), the United States Supreme Court stated the following: The Sixth Amendment guarantees the accused, at least after the initiation of for mal charges, the right to rely on counsel as a ‘medium’ between him and the State. * * * [T]his guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached. However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent. [Citation and footnote omitted] In the instant ease, the record shows that the state neither created an opportunity to confront defendant without his counsel’s presence nor did it obtain statements from defendant by knowingly circumventing his right to have counsel present in a confrontation between him and a state agent. State v. Brown, 434 So.2d 399 (La.1983). Thus, this assignment is without merit. ASSIGNMENT OF ERROR NO. 5 By means of this assignment, defendant contends that the trial court erred by denying his motion for a mistrial when the prosecutor both alluded to a non-existent other crime and remarked and/or testified, during cross-examination of a defense witness, as to the ultimate issue of fact before the jury, i.e., whether defendant was guilty of murder. During the prosecutor’s cross-examination of Dr. Phillip Louis Cenac, Jr., Dr. Cenac testified that defendant “presents a pattern” which is easily recognizable. When asked to explain what he meant, Dr. Cenac stated as follows: That means that an hour from leaving this courtroom, he will be drunk, predictably so. That means that his behavior is much more predictable that (sic) yours or mine. As a matter of fact, that is the interesting thing about it. It is dependent behavior. It is as if he has no choice anymore. It is as if he is hooked up to one of those feeding machines that the pharmacologist use (sic) to study the addiction potential. Thereupon, the prosecutor asked Dr. Cenac if he was saying that defendant would kill again; and defense counsel objected to the question. Out of the presence of the jury, defense counsel moved for a mistrial. After denying defendant’s motion for a mistrial and upon the jury’s return to the courtroom, the trial court admonished the jury to disregard the prosecutor’s question since it presumed a fact which was in the nature or the essence of the trial. Contrary to defendant’s assertion, within the context in which the prosecutor’s question occurred, the question did not amount to a prohibited reference under La. Code Crim.P. 770(2) to another crime committed or alleged to have been committed as to which evidence was not admissible. Although the question impliedly expressed the prosecutor’s opinion as to defendant’s guilt in reference to the instant offense, the question was asked to the witness after the state had presented its case-in-chief. Taken in that context, we find that the expression of the prosecutor’s opinion was apparently based on the state’s evidence that had been placed before the jury and not evidence outside this case. State v. Eastin, 419 So.2d 933, 938 (La.1982). The trial court is given discretion to determine whether a fair trial is impossible or an admonition is adequate to assure a fair trial when prejudicial conduct does not fit within the mandatory mistrial provisions of La.Code Crim.P. art. 770. The trial court correctly determined that an admonition was sufficient in this case. “The harsh remedy of mistrial is not justified when an admonition will preserve the defendant’s rights.” State v. Belgard, 410 So.2d 720, 724 (La.1982). This assignment lacks merit. ASSIGNMENT OF ERROR NO. 6 By means of this assignment, defendant contends that the evidence is insufficient to convict him of first degree murder. However, his entire argument hinged on this Court finding merit to assignments of error one and two, i.e., that his inculpa-tory statements and confessions to the police should have been suppressed by the trial court. Having previously found assignments one and two meritless, defendant’s argument falls. In State v. Garcia, 483 So.2d 953, 956 (La.1986), the court stated: The constitutional standard for testing the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond any reasonable doubt that defendant had the specific intent to kill or to inflict great bodily harm that he was engaged in the perpetration of armed robbery and, hence, that he was guilty of first degree murder. La.R.S. 14:30. This assignment of error lacks merit. Therefore, the conviction and sentence are affirmed. AFFIRMED. . Defendant was first tried in April of 1986, and that trial ended in a mistrial when the jury was unable to reach a verdict. Defendant’s conviction occurred at his second trial on September 16-19 and 22-23, 1986. . La.Code Crim.P. art. 770 provides, in pertinent part, as follows: Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: ****** (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible ...

FOURNET, Justice. We granted this writ of certiorari to review the judgment of the Court of Appeal for the Second Circuit reversing the judgment of the lower court awarding the plaintiff workmen’s compensation under Act 20 of 1914 of the State of Louisiana, as amended, for an eye injury sustained during the course of his employment by the Chicago, Rock Island & Pacific Railway Company on the ground that at the time of his injury the plaintiff was employed in interstate commerce and as such within the exclusive purview of the Federal Employers’ Liability Act, 35 U. S. Stats, at L. 65, as amended on August 11, 1939, 53 Stat. 1404, 45 U.S.C.A. § 51, because in its opinion the Court of Appeal declared the de cisions of this court rendered prior to the adoption of the amendment of the act could have no application and declined to give them any consideration. La.App., 21 So. 2d 428. The case was submitted and tried on an agreed statement of fact wherein it was stipulated that the plaintiff, Oscar Rainwater, was, at the time of the injury, employed by the defendant, a railroad engaged in interstate commerce and serving several states, as a member of an extra gang of laborers who were hauling posts belonging to the defendant from a nearby wood and loading them on railroad cars preparatory to their shipment from Winnfield, Louisiana, to designated points along the defendant’s system, there to be used in repairing the defendant’s road bed. Of the six cars being loaded at the time of the accident, three were actually shipped to points within the state and three to points without, the exact destination of the car the plaintiff was working on when the accident occurred being unknown. It was further stipulated that if the plaintiff is entitled to recover under the workmen’s compensation laws of this state,- he is entitled to receive compensation at the rate of $14.35 a week for a period not to exceed 50 weeks; otherwise, -that he is not entitled to recover at all. We are advised by counsel for the defendant in their brief that the Federal Employers’ Liability Act has never been construed by the Supreme Court of the United States since its amendment in 1939 and while we have not found any 'case in which that court does directly interpret the act as amended, we have found two of its very recent decisions that intimate the amendment has broadened the scope of the act in so far as employees are concerned. See Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538. We have also found a number of decisions in which the federal district and circuit courts have held that this amendment broadens the scope of the act (Edwards v. Baltimore & O. R. Co., 7 Cir., 131 F.2d 366; Ermin v. Pennsylvania Railroad Co., D.C., 36 F.Supp. 936; Agostino v. Pennsylvania Railroad Co., D.C., 50 F.Supp. 726; Patsaw v. Kansas City Southern Ry. Co., D.C., 56 F.Supp. 897), as well as similar decisions in the appellate and supreme courts of various of the states (Southern Pac. Co. v. Industrial Accident Commission, 19 Cal.2d 271, 120 P.2d 880; Harris v. Missouri Pac. R. Co., 158 Kan. 679, 149 P.2d 342; Missouri Pac. R. Co. v. Fisher, 206 Ark. 705, 177 S.W.2d 725; Albright v. Pennsylvania R.Co., Md., 37 A.2d 870; Piggue v. Baldwin, 154 Kan. 708, 121 P.2d 183; Louisville & N. R. Co. v. Potts, 178 Tenn. 425, 158 S.W.2d 729; Scarborough v. Pennsylvania R.Co., 154 Pa.Super. 129, 35 A.2d 603; Prader v. Pennsylvania R. Co., 113 Ind.App. 518, 49 N.E.2d 387; Great Northern R. Co. v. Industrial Comm., 245 Wis. 375, 14 N.W.2d 152; Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W.2d 536; Wright v. New York Central R. Co., 263 App.Div. 461, 33 N.Y.S.2d 531, affirmed 288 N.Y. 719, 43 N.E.2d 97) writs of certiorari to the United States Supreme Court having been refused in several instances. Albright v. Pennsylvania R. Co., supra, denied at 323 U.S. -, 65 S.Ct. 72, 89 L.Ed. 44; Industrial Board of State of New York v. New York Central R. Co. supra, denied at 317 U.S. 668, 63 S.Ct. 73, 87 L.Ed. 537. As was pointed out in the case of Prader v. Pennsylvania Railroad Company, 113 Ind.App. 518, 49 N.E.2d 387, 389, “Congress entered this field (of regulating the relations of common carriers engaged in interstate commerce and their employees) in 1906 when it enacted the first Employers’ Liability Act, which, however, was subsequently declared unconstitutional because it attempted to regulate the liability of carriers in interstate commerce for any injury to any employee, even though his employment had no connection whatever with interstate commerce. The Employers’ Liability Cases (Howard v. Illinois Cent. R. Co.), 1908, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297. The second and present act became law in 1908, and until it was amended in 1939, 45 U.S.C.A. § 51 et seq., its scope was limited, by judicial interpretation, strictly to liability for injuries to employees who were actually engaged in interstate commerce when injured, leaving redress under the state law open in the event the employee was injured otherwise. * * * For cases within its scope, however, there was no remedy for the employee or liability on the part of the employer except as in said Act provided. * * * On August 11, 1939, Congress amended the Federal Employers’ Liability Act of 1908.” (Italics ours.) As originally written, the Federal Employers’ Liability Act declared that “Every common carrier by railroad while engaged in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia, * * * or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of ldn dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” To this the amendment of 1939 added the provision that “Any employee of a carrier, any 'part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” 45 U.S.C.A. § 51. As reflected by the report of the Judiciary Committee on the Amendment, “This amendment is intended to broaden the scope of the Employers’ Liability Act so as to include within its provisions employees of common carriers who, while ordinarily engaged in the transportation of interstate commerce, may be, at the time of injury, temporarily divorced therefrom and engaged in intrastate operations. * * * The adoption of the proposed amendment will, to a very large extent, eliminate the necessity of determining whether an employee, at the very instant of his injury or death, was actually engaged in the movement of interstate traffic. If any part of the employee’s duties at the time of his injury or death directly, closely, or substantially affected interstate or foreign commerce, the claimant would be considered entitled to the benefits of the act. The preponderance of service performed by railroad transportation employees is in interstate commerce. As to those who are constantly shifting from one class of service to another, the adoption of the amendment will provide uniform treatment in the event of injury or death while so employed.” Committee Report No. 661 upon S. 1708, 76th Congress. It is obvious, therefore, that while the purpose of this amendment may have been to eliminate the necessity of establishing that at the very moment of his injury the employee was actually engaged in the movement of interstate commerce when the employment is ordinarily so -or when it constantly shifts between interstate and intrastate activities, its practical result has been to extend federal dominion over virtually the entire field since it includes therein the relations of the railroad corporations to alt employees, any part of whose work is in the furtherance of interstate commerce or affects such commerce directly or closely and substantially. This broadening of the scope of the statute had the effect of adding to the number of employees coming within the exclusive purview of the federal statute rather than detracting therefrom. Consequently, employees that had been classified under our jurisprudence as engaged in interstate commerce prior to this amendment were not removed from such classification by its enactment and the authorities so classifying them have not been rendered valueless. Prior to the adoption of this amendment it was generally held that an employee engaged in the repair of the instrumentalities of a railroad or common carrier used as highways of interstate commerce, such as its roadbeds, tracks, bridges, tunnels, and culverts, was engaged in interstate commerce within the meaning and contemplation of the federal statute. This was true even though these instrumentalities were also used in intrastate commerce and even though the line of the carrier was wholly within the limits of one state, provided such line connected with roads carrying interstate commerce. The jurisprudence of this state was in accordance with this general weight of authority. 35 Am.Jur. 865, Section 448, 10 A.L.R. 1191; 47 L.R.A.,N.S., 55; Vol. 2 of Roberts Federal Liabilities of Carriers 1475, Section 766, 2d Ed. In this jurisprudence we find cases holding that the following were engaged in interstate commerce: One carrying bolts and rivets to be used next day in repairing a bridge (Pedersen v. Delaware, etc., R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153); one carrying-blocks of wood to be used in jacking up a wrecked car so as to clear the track (Southern Railroad Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321, Ann.Cas.1918B, 69); one shoveling snow from near the track (New York Cent. R. Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536); one cooking meals for carpenters engaged in repairing a bridge (Philadelphia B. & W. R. Co. v. Smith, 250 U.S. 101, 39 S.Ct. 396, 63 L.Ed. 869); and, in our own jurisprudence, one carrying timbers about to be used in the repair of a siding in the yards of the railways company used for parking cars while trains were being made up. Hamilton v. Louisiana Ry. & Nav. Co., 162 La. 841, 111 So. 184. In the Hamilton case, this court rejected the plaintiff’s demand for compensation under the state laws, concluding that since the sidings (appurtenant to the trunk line and used in connection therewith in the operation of trains, including those engaged in interstate commerce) were instru-mentalities of interstate commerce, the plaintiff, assisting in their repair, was engaged in interstate commerce. It is our opinion, therefore, that under this jurisprudence, irrespective of the amendment of 1939, the plaintiff in the instant case was employed in interstate commerce. For the reasons assigned, the judgment of the Court of Appeal for the Second Circuit is affirmed.

HAMITER, Justice. Outdoor Electric Advertising, Inc., a Texas corporation, instituted this suit on June 26, 1942, to recover the sum of $2828, alleging that such amount represented the balance due by defendant to it under several written contracts for the erection and maintenance of certain signs along the highways of Louisiana advertising defendant’s business. Thereafter it filed a supplemental and amended petition amplifying some of the allegations originally made. On September 2, 1942, defendant answered, admitting the execution of two of the contracts on which the suit is based and tendering primarily the defense that “the plaintiff failed to comply with its obligations under the contracts entered into with respondent in that the signs covered by said contracts were never maintained by plaintiff in accordance with the terms of said agreements.” Trial of the merits, on the issues thus created by plaintiff’s pleadings and the answer of defendant, was commenced on December IS, 1942. On that day witnesses for both litigants were examined in open court, their testimony consuming eighty-seven pages of the transcript; but the trial was not then completed, the parties agreeing that the case would be held over for the purpose of taking additional testimony either by deposition or by oral examination out of court. In the following February and March, counsel filed stipulations or agreements for the taking of testimony by depositions of witnesses residing in distant states. Before the resumption of the trial and the offering of the depositions, however, defendant, on May 24, 1943, tendered an exception (which he did not name), based on the provisions of Act No. 8, Third E.S., of the Legislature of 1935. These read in part: “Section 1. Be it enacted by the Legislature of Louisiana, That no foreign- corporation doing business in this State shall be permitted to present any judicial demand before any court of this State, unless and until it has' complied with the laws of this State for doing business herein, and unless and until it has paid all taxes, excises and licenses due to the State, provided that nothing in this act shall be construed to prevent the bringing of a cause of action against any such foreign corporation.” In the exception defendant avers that plaintiff, a foreign corporation, is doing business in this state without having secured the required certificate of authority, and without having paid the various taxes due by it; and he shows that “plaintiff is prohibited from judicially invoking the benefits of the laws of this state and is prohibited from presenting any judicial demand before any court of this state.” At a separate trial of the exception, the district judge heard evidence on defendant’s averments. Later he sustained the exception (referring to it as an exception to the right to assert a right of action) and ordered plaintiff’s suit dismissed. It was his opinion, as the written reasons for judgment discloses, that the exception was of the kind that could be offered at any stage of the proceedings; and he concluded from the evidence adduced that plaintiff was doing business in Louisiana without complying with the laws of this state. Plaintiff appealed devolutively, contending here, as in the trial court, that defendant’s exception is dilatory in nature and cannot be considered or admitted for the reason that it was not pleaded specially in limine litis before the joining of issue. Exceptor, on the other hand, insists that the exception is one that may be filed at any stage of the proceeding before final judgment. In the trial court, during the hearing of the exception, exceptor’s counsel remarked: “It is an exception leveled at the legal right of the plaintiff to bring an action in the courts of this state.” Here, in their brief, counsel argue: “ * * * The State has seen fit to prohibit such corporation from using its Courts until they comply with its laws and pay all taxes, etc. due to the State, and the Court should ex proprio motus, dismiss such a suit, even in the absence of pleading by the defendant, should the record reveal the doing of business, and the failure to have complied with the laws for the doing of business in this State.” Similar exceptions have been urged in other cases previously before the courts of this state, being designated therein by various names. That filed in Norm Advertising, Inc., v. Parker (Court of Appeal, Second Circuit) was called an exception to the jurisdiction of the court. It was referred to in R. J. Brown Co. v. Grosjean, 189 La. 778, 180 So. 634, as one of plaintiff’s lack of capacity to stand in judgment. In Proctor Trust Company v. Pope, La. App., 12 So.2d 724, the designation was an exception to procedural capacity. This court in Hess Warming & Ventilating Company, Inc. v. Home Comforts Corporation et al., 205 La. 1045, 18 So.2d 611, 612, inferentially termed it a plea of want of capacity to institute and prosecute the suit and to stand in judgment. But in none of those previous cases has there been considered or determined the matter of when during the pendency of the proceeding the exception should and must be offered. Obviously defendant’s exception is not that of no cause of action which may be pleaded after issue is joined. In the Hess case, cited supra, it was said that the exception of no cause of action admits for the purpose of the trial thereof all the factual averments of the petition, and that its function is not to traverse the alleged facts but to test their legal sufficiency. Further, we observed in that case: “ * * * The question as to whether the plaintiff corporation is amenable to the provisions of Act No. 8 of the Third Extra Session of 1935 is a question which involves its right and capacity to prosecute this suit and to stand in judgment herein. That question has nothing whatever to do with the plaintiff’s cause of action as such. It involves an affirmative defense which must be raised by special plea and disposed of by the introduction of evidence. * * ” Neither can defendant’s plea be treated as an exception of no right of action. An exception of that kind is in the nature of, perhaps the same as, the exception to the want of interest in the plaintiff to maintain the suit. Its basis, as is shown by many cases in which it has been considered, is Article 15 of the Code of Practice which recites: “An action can only be brought by one having a real and actual interest which he pursues, but as soon as that interest arises, he may bring his action.” The purpose served by the exception of no right of action is shown by the following language used in Succession of Breaux, 168 La. 712, 123 So. 300: “* * * We are not prepared to say that the plaintiff’s petition would set forth a cause of action, or sufficient ground for annulling the judgment of probate, if the plaintiff disclosed a right of action, or an interest to be served by annulling the judgment of probate. We prefer, however, to rest our affirmance of the judgment appealed from upon the fundamental proposition that, as far as the allegations of the plaintiff’s petition go, he has no interest whatever to serve by this suit, and hence no right of action. A lawsuit can be maintained only by or on behalf of one who has an actual interest in the matter complained of. Code of Practice, art. 15.” Likewise, in Tichenor v. Dr. G. H. Tichenor’s Antiseptic Co., 180 La. 119, 156 So. 194, the court sustained an exception of no right of action, the decision being based on Code of Practice Article 15 and the finding that plaintiff had no interest in the contract sued on. Clearly then defendant’s exception, predicated on the 1935 Act, is not an exception of no right of action which may be pleaded at any time. The interest of plaintiff in the subject matter of this litigation is not challenged; if it were, the challenge would be unavailing, for, as shown By the written contracts attached to the petition, plaintiff has an immediate and direct interest therein. The statute relied on by defendant, Act 8 of the Third E.S. of 1935, above quoted, prohibits a foreign corporation' that is doing business in this state from using our courts unless and until it has qualified to do business here and has paid all funds due by it to the state. By employing the word “until” in the statute the Legislature has impliedly authorized the foreign corporation to avail itself of our judicial system whenever the stated conditions are fulfilled. Thus, under this interpretation, a corporation that has been subjected to a dismissal of its suit because of such statutory grounds can bring the suit anew after discharging its mentioned obligations to the state. From this it necessarily follows that the exception based on the 1935 Act can not defeat the foreign corporation’s action; it can merely delay its prosecution. Exceptions are means of defense used by the defendant to retard, prevent or defeat the demand brought against him. Code of Practice, Article 330. Those that do not tend to defeat the action, but only to retard its progress, are termed dilatory exceptions, Code of Practice Article 332, and they must be pleaded specially in' limi-ne litis, before issue is joined, otherwise they shall not be admitted, Code of Practice, Article 333. Defendant’s exception could not defeat plaintiff’s action, as above shown, but could only retard the progress of the litigation; hence, under the plain provisions of the Code of Practice, it was purely dilatory in nature. Being dilatory, and since it was not pleaded in limine litis before the joining of issue, we must hold that defendant has waived the right of asserting the incapacity of the plaintiff • corporation to maintain this suit. The Hess case, cited supra, although not decisive of the instant issue, contains the following observation appropriate to the conclusion just announced: “A foreign corporation, in order to maintain an action in this State, is not required to anticipate a plea of want of capacity to institute and prosecute the suit and to stand in judgment because of its noncompliance with the statutory requirements imposed upon such corporations as a limitation of their right to sue. The incapacity of a foreign corporation to maintain its suit may be waived. Many persons observe their moral obligations as faithfully as they do their legal enforcible obligations and the books are full of instances where enforcible judgments have been rendered in such cases. Succession of Thompson, 191 La. 480, 186 So. 1.” What we have said above is applicable to the litigants in this cause — plaintiff and defendant. The State of Louisiana, in the interest of which the discussed. legislation was obviously enacted, has not intervened in and is not a party to this suit; consequently, its rights under the statute are not before us for consideration and are not determined herein. For the reasons assigned the judgment appealed from is reversed and set aside, defendant’s exception is overruled, and the case is remanded to the district court for further proceedings according to law. Defendant shall pay the costs of this appeal, and all other costs shall abide the final determination of the case. O’NIELL, C. J., takes no part,

OTT, Judge. The plaintiff alleges that it is a corporation and conducts a branch of its business at Dallas, Texas, under the name of Lowe & Campbell; that since the year 1925, it has had a running account with the defendant, B. C. Alwes, of Donaldsonville, Louisiana, and further alleges as follows: “That the said B. C. Alwes is now justly, truly and legally indebted unto and in favor of your petitioner, on the said account, in the just and full sum of $364.36, as will more fully appear by the sworn itemized statement hereto attached and made part hereof, and for identification, herewith marked Exhibit A. “That on or about January 3, 1941, the said B. C Alwes duly acknowledged the account and promised to pay the same, that however he has not kept said promise and that the same is justly due owing and has never been paid; that petitioner attaches hereto and makes part hereof the letter of acknowledgement of said B. C. Alwes, of date Jan. 3, 1941, which for identification herewith is marked Exhibit B.” The account annexed to the petition and made a part thereof is itemized and lists various articles of athletic goods, such as footballs, sport shoes, clothes, and other equipment commonly used by high schools in their athletic activities, and the account is made out in the name of B. C. Alwes, Principal, Donaldsonville High School. The alleged letter of acknowledgement of the account annexed to the petition and made part thereof is dated January 3, 1941, and is written on the stationery of the Donaldsonville High School, and (omitting the address) reads as follows: “The fact that we have made no payments on our indebtedness to your firm doesn’t mean that we fail to realize our obligation. Just as soon as our present set up enables us to net anything above the amount needed to cover current expenses, we shall take care of our past due bills. At present, however, we barely break even in our receipts and expenditures. Very truly yours, Donaldsonville High School B. C. Alwes Principal” The defendant filed an exception of no cause or right of action which was overruled. He then filed answer, denying that he was liable individually for the account sued on, but alleged that the account was for athletic goods ordered by him as agent and principal of the Donaldsonville High School and for the use of said high school, all to the knowledge of plaintiff and its representative. The defendant coupled with his answer a reconventional demand for $450 for damage to his reputation and good name on account of filing the suit against him. The case came to this court on a question of the right of the defendant to a trial by jury, and on that appeal we undertook to give a history of the case and the issues involved. See 17 So.2d 382. As was stated on the former appeal, the reconventional demand of the defendant was dismissed by the trial judge, and we refused to pass on his action in that respect for the reason that the question was not then before us. The case was tried before a jury in October, 1944, on the principal demand, and a verdict and judgment rendered in favor of the defendant, rejecting plaintiff’s demands. Plaintiff has appealed, and the defendant answered the appeal, asking that the judgment be amended by sustaining the exception of no cause or right of action, and that the order of the trial judge in dismissing his reconventional demand be set aside. The exception of no cause or right of action is based on the ground that the documents annexed to plaintiff’s petition show that the goods were sold to the Donald-sonville High School and for its use and benefit, and that the defendant Alwes was only acting in a representative capacity as agent or principal of said school. The plaintiff contends that-the defendant is liable for the reason that he did not disclose the principal for whom he was acting when the goods were purchased, and for the reason that he exceeded his authority. However, there is no allegation in the petition to show that the defendant failed to disclose his principal, or exceeded his authority. Documents annexed to a petition control the allegations thereof, and it is clear from the itemized account and purported letter of acknowledgement annexed to plaintiff’s petition that the goods were sold to Alwes as principal of the Donald-sonville High School; that he was acting for and on behalf of the high school of which he was principal. Indeed, the very letter on which plaintiff relies to prove an acknowledgement of the account shows that the account is an obligation of the Donald-sonville High School. The account and the letter show that plaintiff knew in what capacity the defendant was acting, and the latter cannot be held personally liable for failing to disclose the principal for whom he was acting. Where a mandatary has communicated his authority to a third person with whom he contracts, or where such third person has knowledge of the capacity in which the mandatary acts, the latter cannot be held personally liable to such third person, unless the mandatary has entered into a personal guarantee. Civil Code, Art. 3012; Barry v. Pike, 21 La.Ann. 221; Delaroderie & Son v. Hart & Pike, 20 La.Ann. 126, on rehearing page 129; Trastour v. Fallon et al., 12 La.Ann. 25. Assuming that the defendant was not legally authorized to bind the Donald-sonville High School, or the Parish School Board, there is no allegation to the effect that he misled or deceived plaintiff in this respect. One who contracts as agent for another is not bound personally if it develops that he exceeded his authority, or acted without authority, unless the other party to the contract was misled or deceived. Civil Code, Art. 3013; A. Lorenze Co. v. Wilbert, 165 La. 247, 115 So. 475. The trial judge dismissed the re-conventional demand of the defendant on the authority of Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663, wherein it was held that a defendant residing in another parish cannot reconvene and claim from the plaintiff damages for an alleged libel in the pending suit; that he has no cause of action until the pending suit is terminated in defendant’s 'favor. In our opinion, the trial judge was correct in dismissing the reconventional demand on the authority of the cited case. For the reasons assigned, it is ordered that the exception of no cause or right of action filed by the defendant, be and the same is hereby sustained, and the judgment which dismissed plaintiffs suit is hereby affirmed. The order of the trial judge dismissing defendant’s reconventional demand is also affirmed; plaintiff to pay all costs.

TALIAFERRO, Judge. At about the hour of eight A.M., December 9, 1943, on a narrow concrete bridge some two miles west of the City of Minden, in Webster Parish, Louisiana, plaintiff was injured seriously in a collision between his one and one-half ton tractor, with van trailer attached, and the three ton tractor, with tank trailer attached, of the defendant, Earl Gibbon. The bridge is 98 feet long and is 18 feet between railings. Each of the units measured 38 feet in length and 8 feet in width. Plaintiff was. driving his own unit and was traveling easterly; defendant’s unit, driven by one of his employees, was going westerly. The left fender of the two tractors violently contacted. The left part of plaintiff’s tractor, including left side of hood, the grill, cowl, running board and door, were, according to photograph in the record, badly damaged. The drive shaft was disengaged from its rear connection, but, strange as it may seem, not one of the tires of either unit was deflated. The left front corner of the van was also damaged to some extent. The full extent of damage to the Gibbon unit is not shown. If photographs of it were taken they were not offered in evidence. Both units had to be winched from the scene of the accident. It is shown, however, that the drive shaft of the Gibbon unit was so badly damaged that it also would not function. As the drive shaft of each unit was rendered impotent from the collision, it is certain the distance traveled by either or both after the accident may be accredited solely to momentum. Following the collision plaintiff’s unit rested at the east end of the bridge with all the van and two or three feet of the tractor resting thereon. The Gibbon tank rested on the west end of the bridge with tractor off of it and pointing slightly southwest. Plaintiff sues Earl Gibbon and his insurer, The Fidelity and Casualty Company of New York, to recover a large amount in damages allegedly sustained by him as a result of the accident, and for the value of his tractor and trailer, alleged to have been virtually destroyed, For a cause of action, plaintiff alleges that he approached the narrow bridge at a speed not in excess of thirty miles per hour and entered thereon at a speed of about twenty miles per hour; that when he had traversed approximately one-half of the length of the bridge, defendant’s unit approached it from the east at a speed of from forty-five to fifty miles per hour; that the driver thereof, realizing that it would be dangerous, if not impossible, to pass plaintiff’s unit then on the bridge, applied the brakes and changed his course from the middle of the highway to his extreme right, which movement caused the tank trailer to veer somewhat to the left and to strike plaintiff’s tractor and trailer on their left side as they were leaving the east end of the bridge, and at the same time pushing the trailer against the south side of the bridge; that plaintiff’s unit stopped almost immediately following the impact; that because of the speed of defendant’s unit it swerved from side to side across the bridge until it stopped beyond the west end thereof. Plaintiff further alleges that the collision and resultant damages are due solely to the negligence of the driver of the Gibbon unit in these respects, to-wit: That he drove upon and attempted to cross the bridge after plaintiff’s unit had preempted it, well knowing that it was practically impossible for the two units to safely pass thereon; that said driver, had he been keeping a proper lookout and had not been driving at an excessive rate of speed, could have stopped his unit before entering on the bridge as, under the circumstances, was his duty; and, had he done so, the accident would have been averted. Defendants assert lack of negligence of any character on the part of the driver of the Gibbon unit in connection with the accident; and specifically charge that plaintiff’s negligence alone brought it about. Amplifying, defendants aver that the Gibbon unit, traveling at a reasonable and lawful rate of speed,. reached the bridge before plaintiff did and had almost cleared it when plaintiff’s unit entered thereon and collided with the Gibbon tractor; that long before plaintiff drove his unit upon the bridge, he could see, and did see that the Gibbon unit would first reach the bridge; that plaintiff knew the bridge was too narrow for both units to safely pass thereon and knew that unless he stopped his unit prior to going on the bridge, a collision would result; that notwithstanding this knowledge and these circumstances, plaintiff negligently and wantonly drove upon the bridge after it had been preempted by the driver of the Gibbon unit; that had plaintiff observed the ordinary rules of prudence for his own safety and that of others, there would not Ijave been any accident; and that to his failure in this respect the accident solely may be accredited. In the alternative, the contributory negligence of plaintiff is pleaded in bar of any recovery by him. Plaintiff’s demand was rejected and his suit dismissed, and he appealed to this court. The lower court gave lengthy written reasons in support of its judgment. The concrete bridge whereon the collision occurred, on account of its narrowness, has been by the Department of Highways classed as a “one-way bridge”, and the customary signs reflecting the designation were posted east and west of it. Plaintiff and defendant’s driver were well acquainted with the character of the bridge and its said designation as each had driven over it several times. It is an elemental rule of the road that a motorist driving at a reasonable rate of speed who first enters upon a one-way bridge or roadway, enjoys a right of preemption over other motorists desiring at the time to use the bridge or roadway. It follows, as a corrollary, that if the right of preemption is interfered with by another in such manner as to cause damage to the preemptor, the offending one may be held responsible therefor. In the present case, the driver of each vehicle contends that he first reached the bridge and preempted it. The plaintiff only has sued for damages resulting from the infraction of said rule. The burden, of course, devolved upon him to substantiate by a fair preponderance of testimony, the allegations relied upon for recovery. A factual question, pure and simple, was tendered. The trial judge resolved that question against the plaintiff. The accident happened in broad day time. The road on each side of the bridge is practically level and straight for several hundred yards. Each driver should have seen the unit driven by the other quite a distance beyond the bridge as there was no intervening traffic or other thing to .interfere with the view. Notwithstanding all this, the witnesses who claimed to have seen the collision and the vehicles immediately preceding it, are arrayed by sides in hopeless conflict as to the exact spot of the collision, and as to which unit first got on the bridge; and, we might further add, these witnesses, so far as the record discloses, with few exceptions, appear to be wholly without interest in the outcome of the case. It so happened that there were several motor vehicles not far behind and trailing each of the units. Immediately behind the Gibbon unit, in this order, were a touring car in which there were three negroes; next a truck laden with gravel in which there were two young white men and behind this truck was a passenger car in which there were three grown white women and some children. Immediately behind plaintiffs unit "were two busses followed by two automobiles. We are convinced from the testimony that neither unit was traveling at an excessive rate of speed, immediately prior to reaching the bridge; that is, neither was going in excess of thirty-five miles per hour. Plaintiff did not, as a witness, give a plausible and consistent version of facts transpiring immediately prior to and at the time of the collision. Firstly, he admits that although carefully watching the road ahead of him, he did not see the Gibbon unit until he (plaintiff) was about one-half way across the bridge; that at that time the Gibbon unit was ISO yards from the bridge, traveling much faster than it should have. He would have us believe that that-unit covered ISO yards while his own covered only some 50 feet. Again he testified that the other driver applied the brakes when 10 feet from the bridge, at which time he (plaintiff) was about' entering on the west end of it; that he had brought his own unit to a stop when it was collided with by the other near the east end of the bridge. He also did not see the several motor vehicles that immediately preceded the Gibbon unit although they were in plain view. He offers no satisfactory explanation or excuse for not seeing that which he should have seen. Carl Q. Sims, the driver of the Gibbon unit, at the date of trial, was in the Marine Corps of the Government. His testimony was taken de bene esse prior to the trial while on furlough in tíre City of Shreveport, Louisiana. He testified that when he was between 100 and ISO yards from the bridge he observed plaintiff’s unit beyond the bridge approximately ISO to 200 yards, and that as he (the witness), was nearer the bridge he drove forward at a normal rate of speed and entered thereon first, at which time, plaintiff was from 20 to 30 yards from its west end; that he thought he could clear the bridge before plaintiff would drive thereon, but had traveled only about one-half of its length when plaintiff did so; that he then applied his brakes forcefully and this caused the drive wheels of the tractor to veer slightly to his left and was in this position when the vehicles collided. Plaintiff’s son, Thomas, aged seventeen, was riding in the cab of his tractor at the time of the accident. He testified that he saw the Gibbon unit as it came from within a curve (which, however, is several hundred yards east of the bridge), at which time his father’s unit was ISO yards west of the bridge; that the next time he saw the other unit was when, as he says, it had “jack knifed straight across the road, the tractor part”, near the bridge; that at that time his father’s unit was three-fourths of the way across the bridge, and immediately the collision occurred. Murry S. Kost, a witness for plaintiff, was traveling behind him several hundred yards. He testified that when the collision occurred he had pulled his vehicle to the left of the line of motor vehicles between him and plaintiff, and saw the accident plainly. According to his testimony the two units entered upon the bridge about the same time and the locus of the collision was near the center thereof. There were two busses and two passenger cars between this witness’ car and plaintiff’s unit. He says that he was between 600 and 800 yards away from the bridge and, all facts considered, it is not clear to us how he could have accurately observed the vehicles as they came together. He also says that the Gibbon unit “jack-knifed” as it entered on the bridge. If, as he says, the collision occurred near the center of the bridge, the two units must have entered thereon about the same time. The two men in the gravel truck that was behind the car immediately at the rear of the Gibbon unit, testified for plaintiff. The driver of the truck testified firstly that plaintiff’s unit got to the bridge first and that the collision occurred at the bridge’s east end. He modified this testimony by subsequently saying that the collision occurred about three-fourths of the length of the bridge from its west end and that he was “nearly positive plaintiff’s unit reached the bridge first”. He further says that plaintiff’s unit moved forward only two or three feet after the impact. The other man in this truck would riot say which unit reached the bridge first, but believed the collision occurred near the center of the bridge, and that plaintiff’s unit possibly moved forward thereafter 30 feet. Harold Heard was driving the car that was immediately behind the Gibbon unit. There were two colored women passengers with him. They were en route to Shreveport. He is positive that the Gibbon unit entered upon the bridge when plaintiff’s unit was between 50 and 90 feet west of it. He continued to follow the Gibbon unit onto the bridge and ran his own car into its rear end when the collision occurred. He says the accident occurred near the west end of the bridge. The two women passengers corroborate Heard’s testimony in all essentials. Mrs. T. A. Smith of Haynesville, Louisiana, accompanied by her mother, Mrs. Ray Kendrick, and aunt, Mrs. Clinton Crump, was driving to Shreveport the morning of the accident and witnessed it. Her car was trailing the gravel truck. She saw plaintiff’s unit before it reached the bridge, and sensed that there was an accident impending as the Gibbon unit was closer to the bridge and she realized that it was going to preempt it. She testified, in-. ter alia, as follows: “Q. Now at the time you first saw the-furniture van, which was the nearer to the bridge, the furniture van or the Earl Gibbons truck? A. The Earl Gibbons truck. “Q. Now did the two trucks continue to approach the bridge ? A. Yes. “Q. Would you describe what happened, Mrs. Smith? A. I saw the moving van coming this way and it was kind of swaying across that middle black line and I said ‘It is going to be a wreck’, and kind of threw up my arms like that, and it happened in just a few minutes. “Q. Where on the bridge did the accident happen? A. The gasoline truck was practically on the other side of the bridge going towards Shreveport, and the moving van was just getting on the bridge coming this way towards Minden. “Q. Which of the two vehicles entered on the bridge first? A. The gasoline truck was practically off before it was hit.” Mrs. Smith further testified that the plaintiff’s unit, after the collision, “ran all the way across the bridge.” Mrs. Kendrick testified that she was riding on the rear seat of the Smith car and was crocheting. The first thing that directed her attention toward the scene of the accident was when Mrs. Smith threw up her hands and said: “A wreck or something”. The vehicles had collided when she looked up. She said plaintiff’s unit moved forward after the collision . and stopped at the end of the bridge. The testimony of Mrs. Crump is virtually the same as that of Mrs. Kendrick. Mrs. W. S. Goode, at the date of the collision, lived on the north side of the highway in plain view of the bridge where the collision occurred. She was standing in her front yard at the time, primarily watching the Gibbon unit as it came from the west. She watched it without cessation until it entered upon the bridge and is quite certain it was near the west end thereof when plaintiff’s unit collided with it. Plaintiff’s allegations as to who entered the bridge first and where thereon the accident happened are only unqualifiedly supported by himself and his son. The testimony of the truck driver is so equivocal that it carries small probative weight. Mr. Kost and the other occupant of the truck, while introduced by plaintiff, did not prove to be very good witnesses for him for the reasons mentioned in narrative of their evidence. On the other hand, Gibbon’s driver, the three negroes in the car that ran into the Gibbon tank, Mrs. Smith and Mrs. Goode were strong witnesses for defendants, and were positive and definite in their versions of how and where the accident happened. And, as said before, no reason whatever appears for these witnesses to color their testimony. It is contended that the damage to plaintiff’s unit was so serious that it could not have traveled many feet after the collision, and as it rested at the bridge’s east end it is argued that the collision must have occurred there or close to it. This argument loses its force when it is recalled that none of the tires of either unit was deflated, and the driving power (the drive shaft) of each was completely knocked out. One unit could have moved as well as the other. And, plaintiff is certain the Gibbon unit did travel several feet after the collision. We believe the lower court correctly resolved the conflicting testimony in the case and, for the reasons assigned, the judgment appealed from is affirmed with costs.

HAMITER, Justice. On the present appeal, this case presents the single question of whether the claim of the United States Government for taxes due by an insurance company now in receivership should be paid by preference and priority, out of funds held by the receiver, over the policy obligations of that company. The issue, which was resolved against the United States by the district court, has the following described factual background : For a number of years prior to April 1, ' 1937, the Imperial Protective Union and the American Benefit Association, which were organized under the laws of Delaware and Colorado respectively, sold life insurance in the State of Louisiana, writing policies on the- level premium plan, without complying with our statutory requirements relative to the doing of business. On the mentioned date these companies transferred all of their assets, valued at approximately $45,000, to the Imperial Life Insurance Company, a corporation organized under the laws of Louisiana, the transferee assuming all of the policy obligations of the transferors. The officers of the three companies were identical; and their primary purpose in effecting the transfer was to provide means for qualifying the transferee company to do business in this state. In keeping with this purpose, $23,185 of the assets (in the form of bonds) thus transferred, which previously was a part of the mortuary or reserve funds of the transferors, was deposited, along with other bonds, by the transferee with the State Treasurer as qualifying security in accordance with the requirement of Act 169 of 1908. On November 17, 1938, pursuant to the petition of E. A. Conway, the Secretary of State of Louisiana, a receiver was appointed for the Imperial Life Insurance Company (at that time admittedly insolvent) with full power to take possession of its property and to liquidate its affairs. To the tableau of debts filed by the receiver, on which it was not listed as a creditor, the United States tendered an opposition, asserting that the insolvent company was indebted to it for unpaid social security taxes of $1364.24 and also for income taxes, in the amount of $41,647.97, assessed against the above named trans-feror companies for the years 1934 through 1937. That opposition, ultimately, came before this court, and its consideration resulted in a decree that the United States be recognized as a creditor on the tableau of debts as contended. We pointed out that the Imperial Life Insurance Company was directly obligated for the social security taxes claimed, and that its responsibility for the income taxes of the transferor companies arose, under the provisions of a federal statute, by reason of its being the transferee of their assets. Policyholders-were not parties to that proceeding, and,, consequently, no question of preference and priority between them and the United States was there presented or determined.. See 198 La. 999, 5 So.2d 314. Thereafter the receiver filed an amended’ tableau of debts, listing the United States as an ordinary creditor relative to the-mentioned tax indebtedness. This amendment was opposed by the United States, it showing that its claim should be paid by preference and priority after the costs of administration. Also filing oppositions were-certain policyholders who asserted that they should be granted preference in payment. On these oppositions a trial was had in-the district court, resulting in a judgment decreeing that “the demands of the Government for priority of its claim on the-funds in the hands of the receiver of the Imperial Life Insurance Company are denied, and the claims of the policyholders shall be first paid out of said funds.’’ From the judgment the United States perfected and is prosecuting the instant appeal. As that judgment indicates, this appeal does not ’ pose any question respecting individual recognition of policyholders of the several companies involved or the-rights of those claimants as between themselves. The issue, as we appreciate it and’ which we attempt to determine, concerns-solely the matter of preference and priority of payment, out of the funds in the hands of the receiver, as between the United States on the one hand and the-policyholders on the other. The claim of the United States is predicated upon Section 3466 of the Revised! Statutes, 31 U.S.C.A. § 191, which provides : “Whenever any person indebted to chc-United States is insolvent, or whenever the- estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached Toy process of law, as to cases in which an .act of bankruptcy is committed.” There can be no question that the company in receivership (Imperial Life Insurance Company) is indebted to the United States. As above shown, this court, on a previous appeal in the case, decreed that it was liable to the United States for social ■security taxes under a direct obligation and also, as transferee, for the income taxes originally due by its transferors. Moreover, it cannot be denied that such company has been insolvent since November 17, 1938, for on that date it admitted insolvency when the Secretary of State of Louisiana, alleging that ground, sought ■and obtained the appointment of a receiver for it. Hence, under the quoted statutory provision the claim of the United States must be first satisfied unless there exists some legal impediment arising out of the nature of the corporation’s assets from which satisfaction is sought to be obtained. According to the record the receiver has only $16,563.25 in his hands for distribution, an amount insufficient to pay both the claim of the United States and the indebtedness due to the policyholders. Those funds were obtained by the receiver from the qualifying securities of $25,000 (the difference was used in paying receivership expenses) deposited by the Imperial Life Insurance Company with the State Treasurer, and the source of such securities to the extent of $23,185 was the mortuary or reserve funds of the transferor companies, Imperial Protective Union and American Benefit Association. The deposit was made pursuant to, and as required by, Act 169 of 1908, and the deposited qualifying securities, as that statute specifically provides, was “held by the State Treasurer in trust for the benefit and protection of and as security for the policy holders of the corporation making the deposit.” § 4. Thus, under the plain and unmistakable language of the statute, the funds now in the hands of the receiver are impressed and burdened with an expressed trust in favor of and for the benefit of the policyholders. By a provision of law enacted obviously in the interest of society generally and policyholders particularly, not by any voluntary act of the insurance company, the deposited securities were earmarked, segregated and set aside, and delivered to a named trustee, for the sole protection of that definite group. Included in the group are those persons holding policies originally issued by the Imperial Protective Union and American Benefit Association, because the policy obligations of such companies were assumed by the Imperial Life Insurance Company (the corporation that deposited the securities with the State Treasurer) on the confection of the above mentioned transfer of assets. Therefore, by reason of that statutory trust, the claim of the policyholders to the funds in question must prevail over the claim of the United States. In this connection, it is well to point out that when the deposit was made in April, 1937, by which the discussed trust was effected, the depositing corporation was not insolvent (had it been, undoubtedly its qualifying to do business would riot have been permitted) ; hence,- the United States at that time was without right to assert a preferential claim to the deposited securities under the priority statute on which it now relies. Furthermore, we offer the observation that in all probability there would presently be no funds at all for distribution had it not been for the statute requiring the making of the deposit for the protection of policyholders; the money now held by the receiver, which constitutes all of the corporation’s remaining property and is the proceeds from the deposited securities, undoubtedly would have been dissipated long ago with the rest of the assets. In support of the contention that the United States is entitled to a preferential payment, its counsel cite and rely on United States v. Knott, 298 U.S. 544, 56 S.Ct. 902, 905, 80 L.Ed. 1321, 104 A.L.R. 741. Therein a New Jersey surety company, engaged in writing surety or fidelity bonds, was declared insolvent upon its own petition, and its assets were placed in the hands of a receiver. Previously, in order to do business in the State of Florida, it had deposited securities with the treasurer of that state as required by statute.' In the receivership proceeding the United States, under Revised Statutes, § 3466, 31 U.S.C.A. § 191, claimed priority of payment of a debt due by the surety company to it. This claim was opposed by certain Florida officials, they asserting that the indebtedness due to the United States must be postponed to the claims due to the Florida creditors. The issue was finally resolved in favor of the United States by the United States Supreme Court, the basis of the decision being the cited federal priority statute, the one under consideration in this cause. But the Knott case, as we understand it, differs from the instant controversy in two important respects. For that reason we find that it is not decisive or controlling here. In the first place the Florida statute is entirely different from Louisiana’s Act 169 of 1908. The former, pertaining only to companies undertaking to become sureties upon bonds or contracts, provides that any company desiring to engage in business must deposit securities of a specified amount, “which bonds shall be receipted for by the State Treasurer and held or deposited by him”, Comp.Gen.Laws Fla. 1927, § 6302; that whenever such company ceases to do business in the state, has settled all claims against it, and has been released from all suretyship obligations, the securities shall be returned to it. The Florida statute, in a different section, further provides : “Whenever final judgment has been rendered against any surety company on a fidelity or surety bond, said surety shall pay the same within thirty days. Upon notice of failure to pay said amount within said time, the State Treasurer shall retain said bonds, or so much thereof as may be necessary to cover said judgment and costs, subject to the order of the court trying any suit that may be brought upon such bond.” Comp.Gen.Laws Fla.1927, § 6303. But nowhere in the Florida statute is it redited that the deposited securities are held by the treasurer in trust for the benefit of any particular or special claimants. That the Florida statute failed to impose a trust for the benefit and protection of the qualifying surety company’s creditors, and that such failure'was one of the reasons for the result reached by the United States Supreme Court in the Knott case, is clearly indicated by the following statement in the court’s opinion: “No one was appointed trustee; and, at the time of the deposit, there was no ascertainable beneficiary.” The Louisiana enactment, on the other hand, in unambiguous and unmistakable language, dedicates the deposited securities to the payment of claims of policyholders; and of the securities the State Treasurer is made trustee and the policyholders beneficiaries by the law when it states that they shall “be held by the State Treasurer in trust for the benefit and protection of and as security for the policy holders H: * >> Secondly, the cases differ materially in that the Knott contest involved a surety company, not a life insurance company as here. To our minds this is an important distinction. In contrasting life insurance to other forms of insurance, the Supreme Court of Missouri, in State ex rel. American Automobile Insurance Company v. Gehner, 320 Mo. 702, 8 S.W.2d 1057, 1058, 59 A.L.R. 1026, quite appropriately explained : “ * * * One thing in common to the two policies is that each may be canceled or surrendered for a certain cash value. But, if they are not so canceled, the life insurance policy is certain to be paid in the end; whether the loss secured by a fire insurance policy shall ever be paid is contingent. The beneficiary in a life insurance policy has a vested interest, so to speak, in the reserve, which must be paid at the death, an event certain to occur. But a fire insurance policy, particularly automobile insurance, usually runs for a year. It is a remote contingency only that payment for loss would be demanded during that period. So the interest in the reserves of the policy holders in a life insurance company is different, both in kind and degree, from that of a policy holder in the reserves of a fire insurance or liability insurance company.” On the insolvency of a surety company there might not be any indebtedness under its uncancelled policies, since the liability is only remotely contingent. This was recognized in the Knott case, as the following language of the opinion indicates: “ * * * Who would share in the proceeds of the securities could not be known until they were exhausted in satisfaction of judgments, or until the entry of the decree of distribution in a suit authorized by the 1933 amendment. While in the case at bar the Supreme Court [Florida] de- dared that the deposit created ‘a trust fund/ the term appears to have been used to connote an inchoate general lien for the benefit of those persons who may become entitled to be paid from the proceeds, either as unsatisfied judgment creditors, or as Florida creditors at the time when insolvency supervenes. Such an interest lacks the characteristics of a specific perfected 'lien which alone bars the priority of the United States.” (Brackets ours.) But the contractual obligations of a life insurance company under its outstanding policies are certain to matfire eventually. Furthermore, the amounts thus owed are always easily ascertainable from the books of the company. The life insurance policyholders, consequently, are not “persons who may become entitled to be paid from the proceeds”; they are those who are entitled to be paid, and how much they are to receive can be determined at any time. When, therefore, the Louisiana Legislature declared that the deposit by a life insurance company with the State Treasurer would be held in trust for the benefit and protection of the policyholders, it meant just that. It provided something more than an inchoate general lien, even more than a perfected lien, on the securities in favor of those persons; it granted to them a direct interest in the deposit and recognized their right to be paid therefrom by preference and priority over all others. As authority for the contention that the policyholders had no perfected lien on or direct interest in the deposited securities, Counsel for the United States cite Hankins v. Sallard et al., La.App., First Circuit, 188 So. 411, 413. That case simply held that after the appointment of a receiver for a life insurance company a judgment creditor (policyholder) of that company cannot seize in a garnishment proceeding the funds on deposit with the State Treasurer. Accordingly, there was judgment annulling the garnishment proceeding and recognizing the right of the receiver to take possession of the securities in the hands of the State Treasurer to be administered for the benefit of all the policyholders of the insurance company. The claim of the judgment creditor (policyholder) to be paid from the funds was not denied; rather, the court said: “ * * * The trust fund deposited with the state officer can be distributed to the policy holders through the receiver and under the orders of the court just as well, if not better, than by the state officer himself. Whatever rights and preferences the judgment creditor in this case may have against this fund can be protected and recognized in the receivership proceedings. As he acquired no privilege on the fund by a prior seizure, he must be relegated to the receivership proceedings for the assertion and recognition of whatever claim he has against this trust fund.” The judgment appealed fro'm, in our opinion, is correct, and for the reasons given it is affirmed.

PER CURIAM. In his application for rehearing, plaintiff claims that we have erred in two particulars, viz.: “I. The court erred in not taking into account and considering the salient issue made by this record, by Appellate’s (Appel-lee’s) brief that Appellant (appellee) was an ordinary, common carpenter and should not be gauged or judged by what a few exceptional men can do, found after combing one-fourth of the State. “II. The- court erred in not taking into account that there is an almost universal prejudice in the building industry against and makes it practically impossible for Appellant (appellee) to get a job because of the loss of one of his eyes.” Our answer to the plaintiff is that our opinion clearly shows that we considered him as “an ordinary and common carpenter”, in which duties as such he was not required to have precise vision, and did not gauge or judge him by what a few exceptional men could do, but only gauged or judged him in the light of what a “common” carpenter could do. By that we mean, if in twenty years of experience in the carpentry trade, he had only learned the art of sawing a board, and the nailing thereof, the roofing of houses, under the evidence in the record, he could still perform his regular work with his remaining eye in which he has perfect vision. As to plaintiff’s second contention, we only say that this record is barren of any evidence which would tend to show any prejudice in the .building industry against any one-eyed common carpenter, and to show that such a one-eyed carpenter could not get a job because of the loss of one of his eyes. As previously stated in our opinion, one of plaintiff’s own witnesses testified that a carpenter of plaintiff’s class had had employment at Camp Polk, near Lees-ville, within the sphere of plaintiff’s employment, and had done satisfactory work. Rehearing refused.

HAMITER, Justice. In Ward Five of Allen Parish, of which the City of Oakdale with a population of more than 5,000 is a part, there exists a City Court, it having been established pursuant to the requirement of section 29 of Act 136 of 1898, as last amended by Act 167 of 1936, that “in wards containing cities of more than 5,000 inhabitants, there shall be elected by the voters of the ward, for a term of six years, a City Judge * * *» The Marshal of that City Court is the relator herein, Roland Bass, who was duly elected to and holds the position in accordance with the following provision of the mentioned statute and section: “For every City Court, there shall be a Marshal who shall be elected at the same time as the City Judge, by the voters of the ward, who shall hold his office for the term of six years. His salary shall be paid by the Police Jury and the Board of Aldermen or Commission Council payable monthly on his own warrant, and said Police Jury, Board of Aldermen or Commission Council shall each fix the amount of salary to be paid monthly by it to said Marshal in such amount as determined by it; * * Subsequent to the action of the Board of Aldermen of the City of Oakdale in fixing its share of the Marshal’s monthly salary at $10 and in discharging relator as a member of the police department of that city, and after the Police Jury of Allen Parish had likewise decided to pay only $10 per month as its part of the salary, relator brought this suit to compel the Mayor and Board of Aldermen to “provide for and pay to him as Marshal of the said Fifth Ward Court and as Marshal of said Ward a salary of $1250.00 per year, from December 1, 1942, payable $104.17 per month and to reinstate and recognize him as Chief of Police of said City of Oak-dale.” No demand is made against the police jury. The district court dismissed the suit on exceptions of no cause and no right of action and a plea of estoppel, and from that judgment relator prosecuted an appeal to this court. We reversed the judgment, overruled the exceptions and plea, and remanded the case for trial on its merits. 204 La. 940, 16 So.2d 527, 530. In the course of our written opinion rendered on that hearing we observed that relator is the Marshal of Ward Five of Allen Parish, not the Marshal of the City of Oakdale, and as such he can not be recognized as the Chief of Police of that municipality. However, there was offered the further observation, including a declaration of the law governing the principal issue of this controversy, that: “Undoubtedly, under the provisions of Act No. 167 of 1936, the Mayor and Board of Aldermen of the City of Oakdale are given the discretionary power to fix the amount the municipality is required to contribute to the payment of the salary of the marshal of the City Court of Ward Five. But in fixing the City’s portion of the salary of the marshal, the municipal authorities can not abuse the discretion which has been vested in them by the statute. Clearly, relator in his petitions charges that the Mayor and Board of Aldermen have abused that discretion in regard to the amount of salary the City should pay him as marshal of Ward Five. Relator alleges facts on which those charges are based. “It is a well-settled principle of law that where the Legislature creates an office, a city council can not abolish or nullify it either by direct or indirect means. It stands to reason that a municipal council can not fix the salary of a ward marshal so low that a competent person can not afford to accept the office. If the council attempts to do this, the court may interfere to prevent the abuse by the council of its discretionary right to fix the marshal’s salary. It was so held in State ex rel. Thurmond v. City of Shreveport, 124 La. 178, 50 So. 3, 8, 134 Am.St.Rep. 496. In refusing the application of the respondent for a rehearing, the court remarked: ‘The authorities cited in our original opinion justify the interposition of the courts in cases where it is manifest that the municipal authorities have sought, either directly or indirectly, to abolish a statutory office or to starve out the incumbent.’ ” On the trial of the merits, following the remanding of the case, the district court had before it the question of whether or not the municipal authorities had actually abused their discretion by fixing the city’s portion of the Marshal’s salary at only $10 per month. The judge, after receiving evidence and on concluding that there had been an abuse of that discretion, made peremptory the alternative writs of mandamus and ordered defendants to pay to relator as Oakdale’s share of his salary as Marshal of the Fifth Ward City Court of Allen Parish the sum of $100 per month, the payments commencing as of December 1, 1942, and being subject to credits of $10 per month from such date. Defendants are appealing. Our study of the evidence in the record has not convinced us that the trial judge committed manifest error. The Fifth Ward of Allen Parish, according to that evidence, embraces an area eleven miles wide and thirteen miles long. It contains in excess of 10,000 inhabitants, approximately half of whom reside within the corporate limits of the City of Oakdale. In the discharge of his official duties, such as making arrests and serving court processes, the Ward Marshal is required to operate throughout the limits of Ward Five, as well as within the City of Oakdale, and to accomplish the necessary traveling he is compelled to keep and maintain an automobile. Defendants, in contending that $20 per month (half paid by the city and half by the police jury) is adequate salary for the Ward Marshal, insist that the position requires only a small part of a person’s time, calling attention to the fact that such official, over a lengthy period, has handled very few cases each month. It is undoubtedly true that ordinarily the Ward Marshal’s work is light and that relatively few matters require his attention; but it is likewise true, and this is shown by the record, that he is on duty at all times, being subject to call at any hour, day or night. Furthermore, it is not at all improbable, considering that he is a peace officer, that of the demands made on him some will involve work of a very hazardous nature. Appellants offered as witnesses two persons, one a farmer and the other a filling station employee and both of whom were defeated for the Marshal’s position by relator in the 1942 primary, who testified that they had expected and planned, if elected to the position, to continue with their regular occupations. Neither of these, however, expressed himself definitely on the adequacy of the salary of $20 per month. Moreover, the statute, as we understand it, does not contemplate that the position is to be held only by one who is otherwise engaged in a gainful occupation. The Legislature, it seems to us, would have so declared in unmistakable language if that had been its intention. Therefore, the trial judge, in our opinion, did not err in concluding that the municipal authorities had abused their discretion and that the salary proposed and fixed for the Marshal of Ward Five City Court of Allen Parish was so low that a competent person can not afford to accept the office. Furthermore, considering the facts and circumstances of the case, we are unable to declare excessive the sum of $100 per month fixed by such judge as the share of the Marshal’s salary to be paid by the City of Oakdale. As to the part of relator’s salary to be borne by the Allen Parish Police Jury, we express no opinion. That body was not im-pleaded as a defendant and no question respecting its liability is before us. For the reasons assigned the judgment is affirmed.

DREW, Judge. Plaintiffs are seeking to recover $3475 from defendant. They allege they are the owners of land located in Sections 13 and 24, Township 9 North, Range 16 West, Caddo Parish, Louisiana. They further allege that defendant moved a portable sawmill into the vicinity of this land on or about September 15, 1942 and soon thereafter began to cut and remove timber from their land. They allege defendant had been instructed not to trespass on the property but, regardless of the warning, he did cut and remove both hardwood and pulp wood and carried them away in excess of 86,-000 feet of timber and 20 cords of pulp wood. Plaintiffs also allege that defendant destroyed and removed from their property all trees of value because of their beauty and enhancement of the land; and plaintiffs allege their damage to be as follows: Value of timber cut and carried away .$1300.00 Damage to landscape and value of land defaced by removal of trees of scenic beauty.$2000.00 Plaintiffs alleged their damage because they were forced to have the land surveyed in order to estimate the amount of timber removed therefrom by defendant, and paid an engineer $125 for surveying it, and were forced to pay a timber expert $100 to estimate the amount of timber cut and removed by defendant. Plaintiffs also claim attorney’s fees for their lawyer to institute and try this suit in the sum of $250. Defendant filed an exception of no right of action to that part of the petition relating to damages other than the value of the timber cut and removed and also a motion to strike from the petition the articles dealing therewith. The lower Court sustained the exception of no right of action to that part of the petition dealing with damages, other than for cutting and removing the timber. In answer defendant admitted that he operated a portable sawmill in the vicinity of plaintiffs’ property, but denied that he had cut or removed any timber from plaintiffs’ land. The lower Court in a written opinion set aside its ruling on the exception, in so far as it applied to the fees of the engineer and timber estimator, and reserved to plaintiffs the right to proceed by rule to have their fees fixed, otherwise it reaffirmed its ruling on the exception. It granted judgment for plaintiffs for timber cut and removed in the sum of $258, with legal interest thereon from September 20, 1943 until paid. Defendant is appealing from this judgment and plaintiffs have answered the appeal praying that the judgment be increased to the amount sued for, to-wit, $3475. Plaintiffs amended their answer to the appeal alleging that their prayer for judgment be increased to $3475 was made in error, and they only intended to pray for an increase to $1475; and that when the exception was sustained below to the items sued for aggregating $2000, they accepted it and admitted the claims constituting the $2000 were fictitious. The lower Court a'ccepted the estimate made by the expert timber estimator and found that defendant had cut and removed from plaintiffs’ land 86,000 feet of timber, and that its value as standing timber was $3 per thousand. It rejected plaintiffs’ contention that they were entitled to the manufactured price of the lumber made from the timber, inferentially holding’ that defendant was not in bad faith in cutting the timber. The expert who surveyed plaintiffs’ land found it to consist of three tracts, one of 13% acres in Section 13, another of 53% acres in Section 13, and one of 106% acres in Section 24, all in Township 19 North, Range 16 West, Caddo Parish, Louisiana. Defendant purchased the timber on lands adjoining plaintiffs’ land on both the south and east and set up a portable sawmill to cut the timber. Plaintiffs offered testimony to show that 86,000 feet of timber were cut and removed from plaintiffs’ land by defendant. The testimony also shows that the land on which defendant bought the timber and plaintiffs’ land were previously owned by one man, named Hearne, and as the Elders died the children and grandchildren inherited the land and divided it amongst themselves, the entire property being commonly known and spoken of as the “Hearne Property”. The divisions made of the different tracts by the heirs were made on paper and no survey ever run, there being no physical marks to show the dividing lines between the different properties owned by the different heirs. Defendant relied upon a woodsman to locate the lines for the purpose of cutting the timber he had purchased, but it is clear from the record that he relied upon a woodsman who did not know the lines and was not capable of determining them, and it is possible, as well as probable, that defendant cut some of plaintiffs’ timber through mistake as to the lines, but the facts adduced in this case are not sufficient to base a judgment on for any amount of timber cut. Plaintiffs rely on the testimony of their agent that he saw defendant’s employees cut and remove some timber from the land owned by plaintiffs, but he does not attempt to say how much was cut, also on the testimony of an expert timber estimator who was of the opinion approximately 86,000 feet of timber were cut and removed from plaintiffs’ land. He stated, however, that his estimate could not be accurate and was of the opinion the stumps which he used in making his estimate had been cut not more than ten months before. Two witnesses for defendant, both of whom were timber men of many years’ experience, testified that in their opinion the timber cut, as shown by the stumps, had been cut many years before. Defendant’s woodsman and other employees testified that they did not cut across the line, but it was very easy for these employees to have been mistaken for they did not know where the lines were and cut only where the defendant’s woodsman told them to cut. There is evidence in the record to show that timber had been cut on plaintiffs’ land on several occasions before defendant set up the mill. The evidence in the record is not convincing and, as observed by the lower Court, there is much evidence which could have enlightened the Court which was not offered. The testimony adduced is not satisfactory and not sufficient to base a judgment on for any specific amount. We therefore conclude that in order that justice might be done between the parties litigant, that the judgment of the lower Court be set aside and plaintiffs’ suit dismissed as of nonsuit, casting plaintiffs for costs. It is so ordered and decreed.

TALIAFERRO, Judge. Plaintiff sues to recover workman’s compensation. He alleges that while performing the duties of his employment with the defendant, on December 31, 1942, he lifted and moved a short distance a piece of railroad steel twenty feet long, weighing one hundred fifty pounds, and from the strain incident thereto the third, fourth and fifth lumbar vertebrae were fractured; that the joints, muscles and nerves in and about the sacro-iliac region were injured and impaired and arthritis has developed; and that said fractures and injuries produced, from the date of the accident, total disability to perform work of any reasonable character, which, he alleges, will be permanent. He further avers that while defendant provided him with the services of a physician to alleviate his injuries, it refused and continues to refuse to pay him any compensation whatever. Defendant denies that plaintiff was injured while in its employ to the extent of rendering him incapable to work, and, therefore, denies that it is due him any compensation at all. Its position is that plaintiff is a malingerer, purely and simply. Defendant appealed from judgment awarding plaintiff compensation at the rate of $11.70 per week for not more than three hundred weeks. The Court found defendant’s injuries temporary in character but total in effect. Plaintiff, answering the appeal, prays that the term for weekly payments be increased to four hundred weeks, contending that his disability is not only total, but permanent. There exists some uncertainty as to the date plaintiff was injured, but we conclude, as did the trial judge, that it occurred between eleven and twelve o’clock January 1, 1943, which is one day subsequent to that alleged upon. At that time he and other workmen were engaged in loading cross-ties upon a cart or wagon. The piece of steel rail, described in the petition, had to be removed a few feet, as it was in the way of the workmen. Plaintiff alone undertook to do so. He describes how he did it and the effect of doing so, as follows: “I just reached down and caught hold of it and picked it up, and I felt something that felt like it pulled loose in my back.” Two co-laborers corroborate his testimony as regards the lifting and removal of the rail. He made no immediate outcry that he had hurt himself but shortly thereafter he informed these workmen that such had happened. He continued, however, to stay on the job the remainder of the day, but says he did not do any heavy work. In this respect he is corroborated by one of his co-laborers. He did not report to work the next day nor the day following. He also testified that he reported the accident to defendant’s Field Office Manager the day following its occurrence, but in this we think he is in error. We think he reported the accident to this Manager on January 4th. Pie was advised to report to Dr. C. M. Baker in the City of Minden, Webster Parish, for examination and treatment. At that time he complained of serious pain in the lower portion of his back but Dr. Baker was unable to discover any clinical reason for the pain. He did, however, treat plaintiff by strapping his back, and discharged him on February 8th. He advised plaintiff to return to work. He reported for work but did very little because, as he says, his back and right leg pained him too much. In February, 1943, plaintiff employed his present counsel and was directed by him to report to Dr. C. H. Mosely of Monroe, Louisiana, for examination and X-raying. He promptly did so on February 15th. Dr. Mosely made physical examination and found evidence of injury in the back. X-ray pictures, in his opinion, confirmed this diagnosis. The pictures made by Dr. Mosely, he testified, revealed a fracture of the fifth lumbar vertebra, into the articular facet, and complete loss of the spinous process of the fourth and fifth lumbar vertebrae. He also found evidence of other injuries to the third and fourth vertebrae. He attributes the pain of which plaintiff complains, in the right leg, to injury to the sciatic nerve. On the day of trial Dr. Mosely made another physical examination of plaintiff’s back and found spasms therein, which, he says, no one, not even a physician, could simulate. This condition, he says, is directly due to the vertebrae injuries of which he testified. Dr. Baker did not X-ray plaintiff’s back until November, 1943. The pictures then made by him, he testified, do not reveal any abnormality of the spine, and likewise interpreted the pictures made by Dr. Mosely. Dr. Baker’s diagnosis of plaintiff’s physical condition and his interpretation of the X-ray pictures are concurred in by two other reputable physicians practicing in the City of Minden. All of them unqualifiedly testified that plaintiff is a malingerer. Dr. Cannon of Shreveport agreed with Dr. Mosely’s diagnoses and X-ray interpretations. The lower court found, as is obvious, a hopeless disagreement in the opinions of the physicians. This is not uncommon in cases of this character, regrettable as it may be. The court gave considerable weight to the lay testimony and that of Dr. J. B. Benton, who has had many years of experience in the conduct of a clinic in Minden and in reading X-ray pictures. Dr. Benton testified that he physically examined plaintiff a few months subsequent to the alleged accident, and several times thereafter, from which he inclined to the view that plaintiff was not suffering from a traumatic ailment; but after viewing the pictures made by Dr. Mosely he reached the opinion that there was injury to plaintiff’s vertebrae, as contended by Dr. Mosely. He thought, however, plaintiff would be well under proper treatment within eight or ten months from the date of the trial in June, 1944. We find, as did the lower court, that the lay testimony strongly supports plaintiff’s profession of disability. If he is disabled, and we believe he is, no cause has been suggested therefor save as alleged by him. He was twenty-two years of age when trial' was had and to the time he claims to have been hurt there is no intimation or suggestion that he had suffered from disease or injury of serious character. He has been seen daily by some of the witnesses and less frequently by others. Those who daily associate with him testified that he was unable to work after some effort to do so, because of his physical condition. One witness, a reputable farmer who lives close to plaintiff, saw him quite often and to a substantial extent corroborates the testimony of plaintiff’s kinsmen. Plaintiff has used crutches continuously since soon after being discharged by Dr. Baker. In written reasons for judgment the lower court said: “Either the plaintiff sustained an injury that at least temporarily disables him, or he is a malingerer of the worst type. It is unreasonable that a young negro 22 years old with a wife to support would feign disability and try to collect $11.70 a week, (which is the amount he would be entitled to under the evidence as to his earnings), when he could by working easily earn more than twice that amount. Something was said during the trial about his rejection for army service. It could be that he is feigning disability in order to evade military service, but there is no proof that this is so. “With great respect for the ability and integrity of the doctors who testified for defendant, I am constrained to disagree with their findings in the case, and conclude that plaintiff is temporarily totally disabled to perform work of a reasonable character. His appearance in the court room where he moved about on crutches, and in apparent pain, leads to that conclusion. If the doctors had given any other reason for plaintiff’s disability, such as syphillis, bad tonsils, bad teeth and the like, another conclusion might have been reached, but they stand on the statement that there is nothing the matter with him, and with this I am unable to agree.” Defendant endeavored to prove by one of its agents that he saw plaintiff plowing land for several hours. We are convinced that this agent mistook plaintiff’s brother for him; that it is a case of mistaken identity. We are of the opinion that the trial judge correctly adjudged the case, and, for the reasons herein given, the judgment appealed from is affirmed with costs. DREW, J., is recused.

FOURNET, Justice. This is a sequel to our recent decision in the case of Interdiction of Escat, 206 La. 207, 19 So.2d 96, wherein we reversed a judgment of the lower court interdicting Mrs. Jennie Kessling Escat, because of the insufficiency of the evidence sustaining that judgment, and remanded the case to the lower court for the introduction of further evidence. The case is now before us on writs granted Henry J. Cox, the curator appointed by the court to represent Mrs. Escat, in order that we might review the refusal of the trial judge to compel the Recorder of Mortgages to cancel the inscription of the curator’s bond inscribed in the records of his office after the curator had been discharged, his bond cancelled, and the suit dismissed by order of the lower court upon the joint motion of the plaintiff and defendant. While the trial judge has made no response to the rule issued in this case, we gather from the record as made up that when this case was remanded to the lower court for the introduction of additional evidence to sustain the contention of the plaintiff that Mrs. Escat was incapable of caring for her person or property, the plaintiff, having no further evidence to introduce, joined the curator in filing a motion-asking that the suit be dismissed, the curator discharged, and the inscription of his bond in the mortgage office cancelled, and that an order was accordingly issued by the judge of Division “C”, but that, subsequently, the judge of Division “B” refused to make absolute the rule directed to the Recorder of Mortgages ordering him to show cause why this mortgage should not be cancelled, holding, as contended by counsel for the recorder, that the order discharging the curator and cancelling his bond had been improvidently granted since the case was remanded to the lower court ■ for the introduction of additional evidence to supplement that of an eminent psychiatrist who had testified Mrs. Escat was unable to care for her person or property, and that this was particularly true in view of the fact that a judge may ex officio pronounce an interdiction under the provisions of Article 391 of the Revised Civil Code. It was to review this holding that we granted the writs in this sequel. Counsel for the recorder, appearing in this court, contends that the writs herein granted should be recalled because the proper procedure in this case is by way of appeal from the judgment of the district court dismissing the rule directing the Recorder of Mortgages to show cause why the curator’s bond should not be cancelled from the records of his office; in the alternative, that the holding of the trial judge is correct. While this court will not ordinarily grant writs where the party applying for them has a right of appeal from the ruling complained of, we do have the right under our supervisory jurisdiction to grant such writs, and we will grant them when we think this means will justify the end sought to be accomplished. Under the express provisions of Article 491 of the Code of Practice, “The plaintiff may, in every stage of the suit previous to judgment * * * discontinue the suit on paying the costs,” and, as expressed in the syllabus of the case of Shreveport Long Leaf Co. v. Jones, 188 La. 519, 177 So. 593, “A motion to discontinue a suit takes effect the moment it is filed, without an order of dismissal by the court.” See, also, Person v. Person, 172 La. 740, 135 So. 225. An order having been issued in the lower court upon the joint motion of the plaintiff and defendant dismissing these proceedings, discharging the curator, and cancelling his bond, the Recorder of Mortgages is without interest or right to question the proceedings further. The trial judge is likewise without right to reinstate a case that has been thus dismissed. Any judgment rendered subsequent to its dismissal is null. Gilbert v. Meriam, 2 La.Ann. 160; Liquidators v. Berthelot Bros., 118 La. 380, 42 So. 971; Monvoisin v. Plant, 147 La. 464, 85 So. 206. The right .of a judge to pronounce a judgment of interdiction ex officio, under the wording of the article of the Revised Civil Code relied on by him, is predicated upon there being a proceeding pending before him. For the reasons assigned, the ruling of the trial judge dismissing the rule to show cause why the inscription of the bond of the curator, Henry J. Cox, in the office of the Recorder of Mortgages should not be cancelled, is annulled and set aside and the Recorder of Mortgages is hereby ordered and directed to cancel the inscription of this bond, recorded in Book 1596 at Folio 149.

WESTERFIELD, Judge. Sidney D. Torres and more than ten other' persons, residents and voters of the Sixth Ward of the Parish of St. Bernard, filed this suit in the Twenty-Fifth Judicial District Court for that parish, alleging that Torres, a white democratic elector of the parish, was a candidate for the democratic nomination for the office of police juror of the Sixth Ward, and that Harry Serpas, the defendant, participated in the said primary by voting and acting as a commissioner; that as a result of the primary, petitioner was declared to be the democratic nominee and his name was printed on the official ballots used in the general election, which was held April 18, 1944; that at this election the commissioners of election counted and tabulated 74 votes for petitioner and 106 votes for Serpas, whose name was not printed on the ballot, but was written thereon in handwriting, and that the commissioners made a return of the result of the election to the Secretary of State and the Parish Board of Supervisors of Elections, and that the Supervisors of Elections illegally proclaimed Serpas as the duly elected police juror of the Sixth Ward of St. Bernard Parish. Torres claims that he received all of the legal votes -cast at the election and that such votes as were cast for Serpas were illegal, null and void and should have been counted for petitioner because Serpas voted in and acted as a commissioner in the primary election of January 18th, 1944, and he was, therefore, disqualified from becoming a candidate. The case was tried below by a jury, which was impaneled in response to the prayer of defendant and resulted in a verdict in favor of defendant, whereupon judgment was rendered by the Court dismissing plaintiff’s suit and an appeal was taken to the Supreme Court. The defendant filed a motion to dismiss the appeal in that Court upon the ground that, since the proceeding was taken under Sections 1419, 1420, 1422, and 1423 of the Revised Statutes and Act 24 of 1877 and Act 24 of 1894, no appeal is permissible, in view of the provisions of Section 1422 to the effect that “the jury shall have power to determine by their verdict which of the parties is entitled to the office, or to refer the same again to the people. The court shall have no power to grant a new trial as in other cases, and no appeal shall be allowed”, and Section 1423, which declares that “the judgment rendered upon the first finding of the jury shall be final; and on certifying the same to the Governor, a commission shall be issued by him in favor of the person in whose favor the verdict may be.” Plaintiffs, however, in their answer to the motion to dismiss the appeal, contended that Section 1419 of the Revised Statutes was amended by Act 24 of 1894 (Dart’s Statutes 2835) and that the provision requiring a jury trial was eliminated and “ordinary procedure” substituted, and, therefore, the provisions with respect to the trial by jury and the finality of the verdict of the jury were repealed. The Supreme Court declined to consider the motion to dismiss upon the ground that it did not have jurisdiction, ratione materiae, because the value of the thing in contest, the emoluments of the office during the entire term of four years, as shown by the evidence of the plaintiff, amounted to less than $1,500. The case was transferred to this Court and a motion to dismiss based upon the same grounds as were urged in the Supreme Court was filed here. There is no doubt that originally the sections of the Revised Statutes, under which this proceeding was brought, made a jury trial mandatory and declared that a majority of the jury would be sufficient to reach a verdict and that the verdict of the jury should be final and no appeal allowed. Act 24 of 1894, relied upon .by counsel in opposition to the motion to dismiss, is entitled: “ ‘An act to amend and re-enact Section Fourteen Hundred and Nineteen and Fourteen Hundred and Twenty-one of the Revised Statutes of Louisiana, and to authorize candidates for State offices to contest before the courts the election of their opponents,’ and to authorize candidates for Parish, State or any Municipal office of the State to contest before the courts the election of their opponents.” Neither Section 1419 nor Section 1421 relate to jury trials in such cases. Provision for that character of trial and the finality of the jury’s verdict is made in Sections 1422 and 1423, however, the same procedure with reference to the number of signatories to the petition, and the time in which it is to be filed, is repeated in the Act of 1894. This Act requires that such “suits instituted under the foregoing sections contesting the election of State and parish officer or of a municipal officer, shall be filed and tried in all respects as ordinary suits; except that they shall be entitled to trial by preference.” It is obvious that the provisions of Act 24 of 1894 are inconsistent with those of Sections 1422 and 1423 of the Revised Statutes relative to jury trials. In the case of Gauthier v. Lapeyrouse, 122 La. 35, 47 So. 367, the court, in speaking of the Act of 1894, said: “It expressly provides that suits in contested election cases, shall be tried as ordinary suits. “It is true that section 1422, the one which relator alleges has not been repealed, is not expressly referred to in Act No. 24, p. 27, of 1894. That article, however, provides the tribunal to try contested election cases. The sovereign authority directs to which court the complainant shall take his trouble for settlement. “The general terms of the law includes all cases. “When the law orders that a case shall be tried as an ordinary case, as it does in the cited law, supra, it is not in contemplation that there should be a jury trial, unless either or both of the parties to the litigation ask for a jury trial. “In our opinion, the court has jurisdiction to try the case. All cases classed as ordinary cases are to be so tried, unless there is some expression in the law to indicate that it must be tried by jury. “This leaves section 1422, cited above, without effect and repealed to the extent that it directs in mandatory terms that it shall be proceeded with before the court and jury.” The motion to dismiss is denied. On the Merits The facts do not seem to be in dispute. Serpas himself admits that he voted in the primary election and there is uncontradicted evidence to the effect that he was a commissioner. Section 29 of Act 97 of 1922 (Dart’s Louisiana General Statutes Section 2679) reads as follows: “No one who participates in the primary election of any political party shall have the right to participate in any primary election of any other political party * * * nor shall he be permitted to be himself a candidate in opposition to any one nominated at or through a primary election in which he took part.” In Serpas v. Trebucq, La.App., 1 So.2d 346, at page 351, this Court, in discussing this question, said: “It is argued on behalf of Trebucq, the contestee, that this identical legal question has already been considered by the Supreme Court and that that court, in Lacombe v. Laborde, 132 La. 435, 61 So. 518, 521, has held that participation in a party primary does not .disqualify the defeated candidate if, in the ensuing general election, he receives, in ‘write-in’ votes, a majority of all the votes cast. And that is exactly what was held in that case. But the reason on which that result was based can no longer be used to sustain a similar conclusion here. When that case arose, the controlling statute was Act No. 49 of 1906, which, as we find in the Laborde case, provided, in section 27, that: * * There is no doubt that one who votes and acts as commissioner in a primary election has participated in such primary, consequently, and for the reasons assigned the judgment appealed from is annulled, avoided and reversed, and it is now ordered that there be judgment herein in favor of petitioner, Sidney D. Torres, and against the defendant, Harry Serpas, declaring Sidney D. Torres to be the duly elected police juror of Ward 6 of the Parish of St. Bernard, at the general election on April 18th, 1944. Motion to dismiss denied. Judgment of lower court reversed.

DORE, Judge. The plaintiff, W. O. Meyer, was employed on October 3, 1939, by the Tangi-pahoa Parish School Board as an instrumental music teacher to teach in the high schools located in the various wards of the said parish, for a term of 8% months at a salary of $130 per month. On October 1, 1940, he was again employed by the said school board as bandmaster and to teach instrumental music in the parish schools located in the various wards, for a term of eleven months, at a monthly salary of $130. Again, on October 6, 1941, he was employed to teach instrumental music in the said parish schools, for a term of 11 months at $130. It appears that he was assigned, under his contracts, to teach instrumental music at the Kentwood and Spring Creek schools. On April 4, 1942, prior to the expiration of the school year, and the contract of employment entered into by and between the School Board and the plaintiff, the Superintendent of Education for the said Parish, wrote the following letter: “Members of the School Board, Parish of Tangipahoa, Amite, Louisiana. Gentlemen: In an effort to comply with the provisions of Act 58 of 1936, I herewith recommend and request that Mr. W. O. Meyer, presently employed as a probationary teacher in the Parish of Tangipahoa, be relieved from further service in this Parish because of incompetence as a teacher. I deem Mr. Meyer incompetent because, from many reliable reports made to me, he is unable to maintain any semblance of discipline in his classes, thus making it more difficult for the teachers conducting other periods of study or class room work to maintain discipline, all to the detriment of the numerous students taking- work under them. Because of his inability to maintain a proper discipline among the students, he has, on at least two occasions, resorted to cursing students by calling them ‘Bastards’, and other such curse words. I respectfully ask that the School Board consider this recommendation of discharge and act upon it immediately.” On April 6, 1942, the defendant School Board, in regular session, adopted the following resolution: “A Resolution “It was moved by Mr. W. B. Leatherman, seconded by Mr. H. E. Tucker, that in accordance with written recommendation of the Parish Superintendent, that Mr. W. O. Meyer be relieved of his duties as music teacher in the schools of Tangipahoa Parish, effective at once, and that the Superintendent be and he is hereby directed to notify Mr. Meyer of his dismissal.” On April 8, 1942, by registered mail, the Superintendent wrote to plaintiff, as follows : “Enclosed is a copy of a letter presented by the writer to the Tangipahoa Parish School Board at its regular meeting held in Amite on April 6, 1942, setting forth certain recommendations concerning termination of your employment. I regret very much to have to advise you that the School Board, upon my recommendation, has voted unanimously to relieve you of your duties as music teacher in Tangipahoa Parish, immediately. A copy of the School Board resolution is enclosed. “I considered it my sacred duty as Parish Superintendent of Schools of this parish to make this recommendation to the Board because of the many disciplinary problems presented in your department at the Kent-wood High School, as well as because of your profanity in dealing: with certain students at the Spring Creek School. I consider this action necessary for the welfare of the students of the schools you have been serving. “Since the resolution of the Board provides that you shall be dismissed immediately, this is to advise that Friday, April 10th, 1942, will be your last day of service with the Tangipahoa Parish School Board. Your salary check for the month of April is enclosed.” The plaintiff, in his petition, contends that he had served for a period of three years as a probationary teacher and was thereby a permanent teacher of the defendant; that “he was discharged without a hearing, without assigned reasons, without notice of such reasons and that the action of the defendant board was arbitrary without foundation”. The prayer of his petition is that he be reinstated as a permanent teacher and instructor of music in the Kentwood High School or any other approved high school in the parish at a salary of not less than $130 per month for eleven month term of each year, plus such increases in salary to which he may be entitled and ordering the defendant to pay him the sum of $130, as the balance due on his 1941-42 contract. In defense to the suit, the school board denies that the plaintiff was a permanent teacher at the time the resolution of April 6, 1942, was adopted dismissing the plaintiff. It averred that the plaintiff was a probationary teacher; that he was discharged in accordance with the provisions of Act 58 of 1936, upon the written recommendation of its Superintendent charging the plaintiff with incompetency. Upon trial, the lower court rendered judgment in favor of defendant and dismissed plaintiff’s suit. Plaintiff has appealed. Although plaintiff, in his petition, alleged that he was a permanent teacher of the defendant board, in his brief before this court he admits that he was only a probationary teacher and now contends that he was discharged from his duties without notice, trial or hearing, contrary to the provisions of Act 58 of 1936. Therefore, the only question before this court is whether or not defendant school board followed the procedure set forth in the Statute, the pertinent provision of which reads as follows: “Each teacher shall serve a probationary term of three years, such probationary term to be reckoned from the date of his first appointment in that parish in which the teacher is serving his probation. During said probationary term the parish school board may dismiss or discharge any probationary teacher upon the written recommendation, accompanied by the valid reasons therefor, of the superintendent of schools of that parish. (Italics ours.) “Any teacher found unsatisfactory by the parish school board at the expiration of the said probationary term, shall be by said board notified in writing that he has been discharged or dismissed,” etc. The evidence in this case clearly shows that the procedure as outlined in the quoted section of Act 58 of 1936 was followed. The plaintiff was discharged by the defendant school board upon the written recommendation, accompanied by valid reasons therefor, of its superintendent, and after due consideration by the school board of such reasons. It appears that the principals of the Kentwood High School and the Spring Creek High School had complained to the Superintendent about the plaintiff in the way the plaintiff would conduct his class and in chastizing his pupils, indulging in curse words such as “little bastard” or “bastards”. It further appears that these principals could not work in harmony with the plaintiff. In fact, after plaintiff had cursed two of his pupils at Spring Creek, the principal of that school thought it best for the safety of the plaintiff and welfare of the school that plaintiff remain away from the school. After an investigation of the affair by the superintendent, the superintendent came to the same conclusion. The plaintiff in testimony does not deny that he cursed two of his students at Spring Creek, nor does he deny that he chastized some of his pupils at Kentwood with his baton or reed against the wishes or orders of the principal of that school. He also does not deny that there existed a friction between the principals and himself. These matters were brought before the defendant board at the meeting of April 6, 1942, prior to the adoption of the resolution of dismissal. There is evidence that plaintiff was a good music teacher and had turned out a good band for the Kentwood High School. Even granting such fact, the fact remains that, as shown by the principals of the schools in which plaintiff taught, he was inefficient in preserving order in his class room. It is contended by the plaintiff that he should have had a notice of hearing or trial by the school board, based on written charges' of the principals of the schools and of the superintendent prior to the adoption of the resolution of his dismissal. We find no merit in this contention in that the quoted provision of the Act does not call for a hearing before the school board, but only requires that the school board shall act only upon the written recommendation, accompanied by valid reasons therefor, of its superintendent, and that the teacher be notified in writing of the action of the board of his discharge or dismissal, which requirements were met in this case. The judgment appealed from is affirmed.

WESTERFIELD, Judge. Miss Eva Morales, a feme sole, brought this suit against Samuel Burns, whom she alleges to be the owner and operator of Morrison’s Cab Service and Shepherd Cab Owners’ Association, said to be his insurance carrier, for the sum of $475 the amount of damages claimed to have been sustained by her Buick automobile as a re- suit of a collision with one of the Morrison cabs. Defendants filed exceptions of no cause of action which were referred to the merits. No testimony was offered by the defendants and, at the conclusion of the plaintiff’s evidence, judgment was rendered in favor of Burns and the Shepherd Cab Owners’ Association dismissing plaintiff’s suit “for the reason that plaintiff has not alleged and has not proved that the operator of the cab was acting in the course of his employment at the time of the accident, and has not shown what relationship Shepherd Cab Owners Association has with the case”. From this judgment plaintiff has appealed. It must be conceded that the record is barren of any evidence which would tend to show that the Shepherd Cab Owners’ Association was Burns’ insurance carrier. In regard to the holding of the learned judge, a quo, to the effect that plaintiff had failed to allege or prove that the operator of the cab involved in the accident was acting in the course of his employment at the time of the accident, the situation is not so clear. We find that in paragraph 1 of the plaintiff’s petition it is alleged “that Samuel Burns, of age and domiciled in this City and State, doing business as the Morrison’s Cab Service and the Shepherd Cab Owners’ Association, authorized and doing (business) in this City and State, are justly and truly indebted unto petitioner in the full sum of $475.00 to wit”. In answer to this paragraph defendants aver that “paragraph 1 is admitted except as same pertains to liability which is denied”. We have, therefore, an admission that Burns was doing business as the Morrison’s Cab Service. The answer further states that “this accident occurred thru no fault or negligence on the part of the Burns driver” and discusses at length the innocence of the Burns driver and the negligence of the driver of the Morales car in failing to keep a proper lookout for the Burns car which is alleged to have had the right of way. We believe, therefore, that it may be fairly said that there is an admission that Burns was the owner of the car involved in the accident with the plaintiff’s automobile. Insofar as the want of allegation and lack of proof that the driver of the Burns car was engaged in his employer’s business at the time of the accident, the fact that he was driving the Burns car at the time, which is conceded, creates a presumption that he was acting in the course of his employment. Union Indemnity Co. v. Henry C. Faust, No. 9440, see Louisiana and Southern Digest ; Norman, et al. v. Little, et al., 14 La.App. 298, 129 So. 459; Lovoi v. R. F. Mestayer Lumber Co., Inc., et al., La.App., 185 So. 473. We are asked to remand the case in order to admit proof which, it is said, is readily available to establish the connection of Shepherd Cab Owners’ Association with Burns as his insurance carrier. Opposing counsel objects to our doing so, as it would amount to the giving to the plaintiff who had failed to establish his case another opportunity to do so. Article 906 of the Code of Practice reads as follows: “ * * * if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refused to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.” See, also, Young v. Thompson, La.App., 189 So. 487; Sunseri v. Cassagne, 191 La. 209, 185 So. 1. The record as presently made up would require us to condemn the defendant Burns and absolve the Shepherd Cab Company. We believe, however, that it. would be more consonant with the ends of justice to remand the cause for all purposes, consequently, and For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that this case be remanded to the Civil District Court for the Parish of Orleans for further proceedings according to law and not inconsistent with the views herein expressed. All costs to await the final disposition of the case. Reversed and remanded.

O’NIELL, Chief Justice. The question in these cases is whether an order of the Conservation Department, increasing the size of the drilling units theretofore prescribed by the department in a given oil or gas field, can have the effect of superseding pooling agreements made between owners of adjacent lands under authority of the previous order of the commissioner. The plaintiffs, in two separate suits, are suing for the cancellation of two oil and gas leases and two pooling agreements made by one of the plaintiffs, Frank R. Alston, with the defendants. The plaintiffs contend that the defendants have refused to pay the royalties due under .the leases and pooling agreements. Frank R. Alston asks also for a judgment for $3,533.02, in suit No. 37,640, for royalties from May 22, 1942, to March 31, 1943, alleged to be due under the pooling agreement dated August 21, 1941; and Francis H. Alston asks for $1,323.19, in suit No. 37,641, for royalties from May 22, 1942, to September 1, 1943, alleged to be due under the pooling agreement dated August 20, 1941. The pooling agreements provided for production units of 320 acres. The defendants filed exceptions of non-joinder and of no cause or right of action. The exceptions of nonjoinder and of no cause of action were overruled, and the exceptions of no right of action were referred to the merits. In their answers the defendants admitted the execution of the pooling agreements and admitted that they had not paid royalties in accordance with the agreements since May 21, 1942. They averred that thereafter they tendered to the plaintiffs royalties in accordance with the orders of the Department of Conservation, known as Orders 28-C, 28- C-ó and 28-C-8, which established drilling units of 640 acres, and which superseded the pooling agreements. The judge of the district court, after hearing the cases, overruled the exceptions of no right of action and gave judgments for the plaintiffs for the sums of money claimed as royalties under the pooling agreements, but rejected the demands for cancellation of the leases and pooling agreements, and recognized the leases and pooling agreements to be valid and in effect. The judge also rejected the plaintiffs’ demands for attorney’s fees for the cancellation of the leases. The defendants appealed, and the plaintiffs, answering the appeal, ask again for a cancellation of the leases and for the attorney’s fees. The defendants are not urging their exceptions in this court. On September 9, 1940, Frank R. Alston executed an oil and gas lease to Paul Pewitt on the 40 acres forming the S. W. % of S. W. of Section 11, and on May 10, 1941, Pewitt assigned the lease to the Southern Production Company. On November 8, 1940, Frank R. Alston executed another lease in favor of the Southern Production Company, on the S. % of N. W. *4 and N. % of S. W. % and S. E. i/4 of S. W. y4 and W. % of S. E. % and S. E. of S. E. % of Section 11, containing 320 acres. On September 19, 1941, Frank R. Alston sold the S. W. J4 of S. W. J4 °f Section 11 to Francis H. Alston. All of Section 11 is in the Logans-port gas field. The lease dated September 9, 1940, did not give the lessee the right to pool the leased land. But the lease dated November 8, 1940, contained a clause permitting unitization of the land described in that lease, or any portion thereof, with any adjacent tract, to make up an area not exceeding 160 acres, or not exceeding the area prescribed by the Department of Conservation if the department should prescribe a unit larger than 160 acres. The plaintiffs contend that that lease, so far as it authorized pooling and unitization, was superseded by the pooling agreements entered into on August 20 and 21, 1941. On November 18, 1940, the Southern Production Company assigned its lease to the Ohio Oil Company; and on December 27, 1940, the Ohio Oil Company assigned the lease to the Southern Production Company so far as it covered gas and distillate. Two wells were completed in Section 11, to what is called the Jeter horizon, and produced gas and distillate. One of the wells was completed on December 30, 194-0, and was known as the Bland Well. It was located in the N. W. of the section. The other well, known as the Alston-Frost well, was completed on January 26, 1941, in the S. E. % of the section. On August 20, 1941, Frank R. Alston entered into a pooling agreement with the defendants, whereby 80.1 acres of his land was placed in the unit comprising the N. % of the section; and on August 21, 1941, Frank R. Alston entered into another pooling agreement, whereby his remaining acreage, consisting of 281.26 acres in Section 11, was placed in the unit comprising the S. % of Section 11. These pooling agreements conformed with an order called Order 28, rendered on June 27, 1941. The plaintiffs were paid royalties from August 20, 1941, to May 21, 1942, under the terms of the pooling agreement, at the ratio of 80.1 to 321.44 of the one-eighth of the gas and distillate produced from the well located on the N. y2 of Section 11. And, they were paid royalties from August 21, 1941, to May 21, 1942, under the terms of the pooling agreement, at the ratio of 281.26 to 321.44 of the one-eighth of the gas and distillate produced from the well located on the S. % of Section 11. On February 10, 1942, the Department of Conservation issued Order No. 28-C, dividing the Logansport gas field into drilling units of 640 acres, allowing only one well to be drilled on any one unit. The order expressly allowed the W. % of Section 11 to be combined with fractional Section 10, to comprise 610 acres, and the E. -V2 of Section 11 to be combined with the W. % of Section 12, to comprise 640 acres. Francis H. Alston owned 40 acres in the W. % of Section 11, and Frank R. Alston owned 200 acres in the W. % of Section 11, and 120 acres in the E. % of Section 11. On June 26, 1942, the Department of Conservation, after giving the notice and hearing required by the statute, issued the Orders, 28-C-6, unitizing the W. % of Section 11 with fractional Section 10, and 28-C-8, unitizing the E. % of Section 11 with the W. % °f Section 12. Thereafter the defendants tendered to the plaintiffs royalties accruing to them in accordance with Orders 28-C-6 and 28-C-8, and on the basis of 610 acres to one of the units and 640 acres to the other unit. The defendants claimed that these orders superseded and abrogated the agreements dated August 20 and 21, 1941. The plaintiffs claim that the royalties should have been paid according to the terms of those agreements; that is, on the basis of 320 acres to the unit. The question therefore is whether the plaintiffs’ royalties should be computed in accordance with the pooling agreements, or in accordance with Orders 28-C, 28-C-6 and 28-C-8, issued subsequent to the making of the pooling agreements? And, if the royalties should be computed according to the agreements, should the leases and pooling agreements be cancelled for failure of the lessees to pay the royalties according to the pooling agreements ? Order 28-C, increasing the'drilling units to 640 acres in the Logansport Field, and the unitization Orders 28-C-6 and 28-C-8 are valid orders. Act 157 of 1940 authorizes the Commissioner to change the established units if conditions require it. In Paragraph 3 of Section 3 of the act it is provided that “the Commissioner shall have authority to make, after hearing and notice as hereinafter provided, such reasonable rules, regulations and orders as may be necessary from time to time.” The only restriction on the authority of the Commissioner to establish drilling units is that such an order must be reasonable and the unit prescribed must not exceed the maximum area which one well can efficiently and economically drain. In the absence of a showing to the contrary, we assume that the Commissioner’s finding in this instance, which was preceded by the notice and hearings required by the statute, determined correctly that one well could efficiently and economically drain 640 acres. The Commissioner’s order, increasing the size of the units from 320 to 640 acres, was made necessary by a Federal order, called Order No. M-68, which provided that “No material may be used for the drilling of any oil well on less than 40 acres, or any gas well on less than 640 acres, on or after December 23, 1941.” The Commissioner’s authority is subordinate to that of the Federal Government during the emergency caused by the war. Order 28-B, on which the plaintiffs rely, and which was the authority for the pooling agreements, made provision for changes to be made by the Commissioner of Conservation, — thus: “This order [No. 28-B] shall be subject to change by the Commissioner, after notice and hearing as prescribed by law and by the rules of the Commissioner.” It is argued by the plaintiffs that such power in the Commissioner would be dangerous, for if he could increase the unit to 640 acres he might make it 1,280 or 2,560 acres. But the argument overlooks the provision in the statute that the orders of the Commissioner must be preceded by due notice and hearing, and that anyone affected by such an order has the right to complain if the order is unreasonable or arbitrary, and to have his complaint reviewed by the courts. It is so provided in Section 11 of Act 157 of 1940. An order of the Department of Conservation increasing the size of the drilling units theretofore established by an order of the department, in a given oil or gas field, may supersede contracts made between landowners or leaseholders in the oil or gas field under authority of the previous order of the department, without being subject to the objection that the later order is unconstitutional for impairing the obligations of such contracts. Hunter Co. v. McHugh, 202 La. 97, 11 So.2d 495; Id., 320 U.S. 222, 64 S.Ct. 19, 88 L.Ed. 5. See also Hood v. Southern Production Co., 206 La. 642, 19 So.2d 336; Placid Oil Co. v. North Central Texas Oil Co., 206 La. 693, 19 So.2d 616; Hardy v. Union Producing Co., La.Sup., 20 So.2d 734. The judgments appealed from are annulled, and the plaintiffs’ demands are rejected and their suits are dismissed at the cost of the plaintiff in each case.

PONDER, Justice. Golden Owens, administrator of the estate of Fannie E. Owens et ah, brought suit in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana, on August 23, 1943, against Allied Underwriters for the recognition of a judgment they had obtained against the defendant in the United States District Court for the Eastern District of Arkansas, Western Division, calling for the amount of $10,000 with interest and costs. The plaintiffs asked for and obtained the issuance of a writ of attachment. Garnishment proceedings were issued to the State Treasurer with the view of attaching a cashier’s check calling for $20,000 which had been deposited by the defendant for the privilege of doing insurance business in the State of Louisiana. The plaintiffs prayed for the recognition of a lien and privilege by virtue of the attachment and payment by privilege and priority out of the proceeds of the check over all other creditors. The defendant, Allied Underwriters, an insurance company organized under the laws of the State of Texas, was placed in receivership in the State of Texas on August 17, 1943, prior to the institution of this suit. At the time this suit was filed, no receivership proceedings had been instituted in the State of Louisiana. However, a short time thereafter, September 7, 1943, a receiver was appointed by the Nineteenth Judicial District Court for the Parish of East Baton Rouge for the purpose of liquidating claims of citizens of Louisiana. The Louisiana receiver, the Secretary of State and the State Treasurer interposed exceptions of no cause and no right of action to the plaintiffs’ suit. They answered and asked for the dissolution of the attachment and the dismissal of plaintiffs’ suit. On trial of the exceptions, the attachment was dissolved, and the plaintiffs’ suit was dismissed with the reservation of plaintiffs’ right to proceed against the defendant through the Louisiana receiver. The plaintiffs have appealed. The cashier’s check involved herein was deposited with the Treasurer of the State of Louisiana on March 30, 1940, allegedly to comply with the provisions of Act 158 of 1932 to protect the creditors of the defendant in this State. The defendant was then engaged in writing certain forms of insurance in Louisiana. From the evidence, it appears that the defendant corporation was authorized to do business in this State until its certificate expired on March 31, 1942, and that since that time the defendant has not been authorized or licensed to do business in the State. The exceptions and the motion to dissolve are based on the grounds that the appointment of the receiver in the State of Texas dissolved the defendant corporation, and any proceedings instituted against the insolvent corporation- are null; that plaintiffs can only assert their rights in the receivership proceedings; that the Treasurer and Secretary of State are not subject to garnishment; that the appointment of the Secretary of State as agent for service of process by the defendant precludes the right of plaintiffs to an attachment; and that the deposit in the hands of the State Treasurer is restricted to claims arising and accruing by virtue of policies of insurance issued by the defendant upon the lives of persons or citizens of this State or upon property situated in this State. The appellants contend that they have a right to proceed against the insolvent corporation under the holdings in the cases of Federico Macaroni Mfg. Co. v. Great Western Fire Ins. Co., 173 La. 905, 139 So. 1, 79 A.L.R. 1256, and Lichtenstein Bros. & Co. v. Gillett, 37 La.Ann. 522. It is agreed in the stipulation of facts that the Allied Underwriters was sent into receivership in the State of Texas, and a receiver was appointed for the purpose of liquidating the corporation prior to the institution of this suit. The appellants do not dispute the fact that this operates as a dissolution of the corporation, but contend that the judgment dissolving the corporation in the State of Texas cannot be given extraterritorial effect. At the time this suit was brought, the corporation had no legal existence. Such being the case, this suit could not be successfully instituted against a nonexist-ing corporation, and no action could be thereafter maintained against it. The dissolution of the corporation, under the insurance laws of Texas at the domicile of the corporation in that state, brought about the civil death of the corporation, and it no longer had the capacity to be sued. Pleasant H. Pendleton v. Charles H. Russell, Receiver of the Knickerbocker Life Insurance Co., 144 U.S. 640, 12 S.Ct. 743, 36 L.Ed. 574; Oklahoma Natural Gas Co. v. State of Oklahoma, 273 U.S. 257, 47 S.Ct. 391, 71 L.Ed. 634; Riehle v. Margolies, 279 U.S. 218, 49 S.Ct. 310, 73 L.Ed. 669; Chicago Title & Trust Co. v. Forty-One Thirty Six Wilcox Bldg. Corporation, 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147; Walling, Administrator of Wage and Hour Division, U. S. Dept. of Labor v. James Reuter, 321 U.S. 671, 64 S.Ct. 826, 88 L.Ed. 1001; National Surety Co. of New York v. Cobb, 5 Cir., 66 F.2d 323; United States v. Leche, D.C., 44 F.Supp. 765; Germain Musson v. Henry D. Richardson, 11 Rob. 37; Michel v. Southern Ins. Co., 128 La. 569, 54 So. 1012; McCoy v. State Line Oil & Gas Co., Inc., 180 La. 579, 157 So. 116; Cognovich v. Sun Indemnity Co. of N. Y., 176 La. 373, 145 So. 774; Tangipahoa Bank & Trust Co. v. Guwang, La.App., 15 So.2d 148; Levy v. Union Indemnity Co., La.App., 146 So. 182; U. S. Truck Co. v. Pennsylvania Surety Corporation, 259 Mich. 422, 243 N.W. 311; Livingston, Insurance Com'r v. Southern Surety Co. of N. Y., 262 Mich. 438, 247 N.W. 712; McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125; Turner v. Browne, 351 Mo. 541, 173 S.W.2d 868; 97 A.L.R. 477. The effect of the dissolution of a corporation at its domicile is discussed at length in many of the cases cited herein. We quote from the following decisions: “Looking at the judgment of the circuit court of the United States, we are satisfied that the ruling of the court of appeals was correct. That judgment purports to be against the insurance company, but that company, at the time, had no legal existence. It had been dissolved, and its franchises, rights, and privileges declared forfeited, by a decree of the supreme court of New York, in a proceeding brought by the attorney general of the state, in the name of the people, and a receiver appointed of the effects of the corporation. The judgment was therefore no more valid against a nonexisting corporation than it would have been if rendered for a like amount against a dead man. The receiver was not substituted in the place of the dissolved corporation. No process or citation was issued by that court to bring him before it, or any proceeding taken for that purpose. Nor would such a proceeding have any effect, for, the corporation having expired, the suit itself had abated. It ceased to be a pending suit; and, if it were otherwise, the receiver could not take charge of any proceeding in a foreign ju risdiction by commencing an action, or defending an existing action, without the express authority of the court, whose officer he was, so as to bind any property or effects in his hands as receiver. Booth v. Clark, 17 How. 322 [58 U.S. 322, 15 L.Ed. 164]; Reynolds v. Stockton, 140 U.S. 254, 11 S.Ct. 773 [35 L.Ed. 464].» Pleasant H. Pendleton v. Charles H. Russell, supra [144 U.S. 640, 12 S.Ct. 745], “There is no specific provision in our rules for the substitution as a party litigant of a successor to a dissolved corporation. It is well settled that at common law and in the federal jurisdiction a corporation which has been dissolved is as if it did not exist, and the result of the dissolution cannot be distinguished from the death •of a natural person in its effect. * * * It follows, therefore, that as the death of the natural person abates all pending litigation to which such a person is a party, dissolution of a corporation at common law abates all litigation in which the corporation is appearing either as plaintiff or defendant. To allow actions to continue would be to continue the existence of the corporation pro hac vice. But corporations exist for specific purposes, and only by legislative act, so that if the life of the corporation is to continue even only for litigating purposes it is necessary that there should be some statutory authority for the prolongation. The matter is really not procedural or controlled by the rules of the court in which the litigation pends. It concerns the fundamental law of the corporation enacted by the state which brought the corporation into being." Oklahoma Natural Gas Co. v. State of Oklahoma, 273 U.S. 257, 47 S.Ct. 391, 392, 71 L.Ed. 634. “The decisions of this court are all to the effect that a private corporation in this country can exist only under the express law of the state or sovereignty by which it was created. Its dissolution puts an end to its existence, the result of which may be likened to the death of a natural person. There must be some statutory authority for the prolongation of its life, even for litigation purposes. * * * “How long and upon what terms a state-■created corporation may continue to exist ás a matter exclusively of state power. Horn Silver Mining Co. v. New York, 143 U.S. 305, 312, 313, 12 S.Ct. 403, 36 L.Ed. 164; Ashley v. Ryan, 153 U.S. 436, 441, 443, 14 S.Ct. 865, 38 L.Ed. 773; New Jersey v. Anderson, 203 U.S. 483, 493, 27 S. Ct. 137, 51 L.Ed. 284. The circumstances under which the power shall be exercised and the extent to which it shall be carried are matters of state policy, to be decided by the state Legislature. There is nothing in the Federal Constitution which operates to restrain a state from terminating absolutely and unconditionally the existence of a state-created corporation, if that be authorized by the statute under which the corporatiqn has been organized. And it hardly will be claimed that the federal government may breathe life into a corporate entity thus put to death by the state in the lawful exercise of its sovereign authority." Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corporation, supra [302 U.S. 120, 58 S.Ct. 127]. “It is true that this Court cannot, in the present state of the record, render an effective judgment on the merits, because the sole respondent brought before us by the petition for certiorari, by reason of its dissolution, no longer has capacity to be sued, and no one has sought to procure substitution of any other person as party respondent. “Such is the effect of dissolution under the Louisiana law. * * *" Walling v. James V. Reuter, supra [321 U.S. 671, 64 S.Ct. 828], “We think it equally clear that dissolution under the insurance laws brings about the civil death of the corporation, and that suits thereafter brought and judgments thereafter obtained upon service on statutory agents designated in other states are nullities. No New York case deciding the precise question has been called to our attention; we have found none. We have, however, found cases from other states which support the view we take. In Martyne v. Am. Fire Ins. Co., supra [216 N.Y. 183, 110 N.E. 502] it is said that the insurance laws of New York are substantially the same as those of Pennsylvania. In U. S. Truck Co. v. Pa. Surety Co., 259 Mich. 422, 243 N.W. 311, 312, the Supreme Court of Michigan held that after the dissolution of an insurance company in Pennsylvania and the appointment of the superintendent of insurance as statutory liquidator an insurance suit could not be brought in personam against the dissolved corporation in Michigan by service on the commissioner. It was there said: 'Dissolution of a corporation is governed by the laws of the state of its charter. * * * Full faith and credit must be given the de cree of the court of common pleas in the respects: (a) That defendant corporation was dissolved by the decree; and (b) that the insurance commissioner of Pennsylvania took and holds title to the corporate property, not as an ordinary receiver, but as a quasi assignee of the corporation by force of statute, entitled of right to defend or sue in its stead in actions in other states.’ “The Supreme Court of Pennsylvania, in Burns v. Niagara Life Ins. Co., 279 Pa. 453, 124 A. 128, in passing upon an effort to sue in Pennsylvania by serving the commissioner there, an insurance company which had been dissolved in New York, held that the suit would not lie. There the court directly decided the question presented here. It held that where a decree of a New York court provided that the defendant corporation was dissolved and its charter forfeited and annulled, thereafter service on the insurance commissioner of Pennsylvania was invalid; the life of the corporation having ceased as of the date of the dissolution decree.” National Surety Co. of New York v. Cobb, supra [66 F.2d 325], “It is well settled at common law and in the federal courts that a corporation which has been dissolved is as if it did not exist. The result of dissolution cannot be distinguished from the death of a natural person in its effect. As the death of a natural person abates all pending litigation to which he is a party, dissolution of a corporation at common law abates all litigation to which the corporation is a party, unless it is continued by the law of the state where it .is dissolved for the purpose of prosecuting or defending civil suits or criminal actions. Thus the question, as to whether a corporation is continued for the purpose of prosecuting or defending civil suits or criminal actions, depends upon the law of the state of its incorporation. * * “If the statutes of the state where the corporation is incorporated and dissolved do not give authority to maintain such a prosecution, it does not exist.” United States v. Safeway Stores, Inc. (Texas) et al [10 Cir.] 140 F.2d 834, 836. “* * * It is true that the company had maintained an agent in the city of Detroit for that purpose, but when the bill was filed in the Wayne circuit the company was not in existence. It had been dissolved by the New York court. With its dissolution passed the agency of its Detroit representative. * * *” Livingston, Insurance Commissioner, v. Southern Surety Co. of New York, supra [262 Mich. 438, 247 N.W. 713]. “Dissolution of a corporation is governed by the laws of the state of its charter. Mills v. Anderson, 238 Mich. 643, 214 N.W. 221. The foreign laws need not be formally introduced in evidence. C.L.1929, § 14179. Full faith and credit must be given the decree of the court of common pleas in the respects: (a) That defendant corporation was dissolved by the decree; and (b) that the insurance commissioner of Pennsylvania took and holds title to the corporate property, not as an ordinary receiver, but as a quasi assignee of the corporation by force of statute, entitled of right to defend or sue in its stead in actions in other states. * * * “But state laws do not have extraterritorial force. Rights and remedies of property are governed by laws of the state in which it is situate. The statutory assignment will be given force in other states but on the ground of comity, not by constitutional mandate. * * *” U. S. Truck Co. v. Pennsylvania Surety Corporation, supra [259 Mich. 422, 243 N.W. 312], The Federico case, supra, does not in any way conflict with the views herein expressed. The question presented to the court in that case was whether a surety on a defunct corporation’s bond could be held liable for the corporation’s obligation. The bond was given in pursuance to Act 172 of 1908 which required insurance companies to post a bond in the sum of $20,-000 with the State Treasurer conditioned for the prompt payment of all claims accruing to any person during the term of the bond by virtue of any policy issued by the corporation upon the life or person of any citizen of the state or upon any property situated in the state. Although Act 172 of 1908 has been repealed by Act 158 of 1932, the repealing act virtually re-enacts the provisions of that statute. We observed in the Federico case that the general rule that a judicial decree appointing a receiver terminated the outstanding policies was not applicable to the surety on the bond given in pursuance to the statute. The receiver in the Lichtenstein Brothers case, supra, was appointed under a creditors’ bill by a chancery court in Georgia. There is a vast distinction between a receiver appointed under a creditors’ bill and one appointed under a statute of the nature involved herein. In that case, we quoted from Booth v. Clark, 17 How. 322, 338, 15 L.Ed. 164, wherein the nature and authority of a receiver appointed under a creditors’ bill was discussed as follows: “A receiver is appointed under a creditor’s biil for one or more creditors, as the case may be, for their benefit, to the exclusion of all other creditors of the debtor, if there be any such, as there are in this case. * * * He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek.” In the present case, the dissolution of the corporation is governed by the laws of the state of its charter. The corporation, during its life, existed only under the express law of the state under which it was created, namely Texas, and the state which created the corporation had the right to terminate its existence. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corporation, supra. Since the life of the corporation has been terminated under the laws of Texas, it no longer has the capacity to be sued in Louisiana. The case of Item Co., Limited v. NuGrape Bottling Co., Inc., 160 La. 975, 107 So. 770, is not pertinent for the reason that the judgment had become final, and the sheriff had taken over possession of the property for sale prior to the receivership. Moreover, if extraterritorial effect were not given to the Texas judgment dissolving the corporation, the moment the Louisiana receiver was appointed, the existence of the corporation would undoubtedly terminate under the laws of this State. The corporation having expired, the suit itself would abate. Musson v. Henry D. Richardson, supra; Michel v. So. Ins. Co., supra. The facts in the present case are almost identical with those of the Cognovich case, supra. In that case, the plaintiffs, who held a judgment against the Federal Surety Company, an insolvent foreign corporation doing business in this State, sued the Sun Indemnity Company of New York as surety on the qualifying bond of the Federal Surety Company. Soon after the receiver was appointed, the suit was transferred to be disposed of in the receivership proceedings. The matter was brought to us by way of certiorari and petition of mandamus. The contention was made that Act 227 of 1932 would be unconstitutional if given the retroactive effect of depriving plaintiffs of their right to proceed directly against the Sun Indemnity Company, as surety on the Federal Surety Company’s bond. We denied the relief prayed for and dismissed the writs, making the following pertinent statement [176 La. 373, 145 So. 775]: “Act No. 227 of 1932 was intended for a case like this. The object of the act, as expressed in its title, is to authorize the appointment of receivers for foreign insurance companies that have qualified to do business in this state, and have become insolvent, or have had receivers or liquidators appointed for them elsewhere; to authorize such local receivers to collect all of the assets of such insolvent insurance companies in this state, including deposits with the state treasurer, and to proceed against the surety or sureties on the bond or bonds filed by such insurance companies with the secretary of state, for the privilege of doing business in this state; to authorize such receivers to have determined and ranked all claims against such insurance companies and the sureties on their bonds; and to provide for process in such cases, and the trial thereof.” The defendant in the present suit no longer has the capacity to be sued, and no one herein is seeking to substitute any other person in its place. Under such circumstances, the lower court properly dismissed plaintiffs’ suit. Any judgment rendered under the proceedings against the defunct corporation would be null. Musson v. Henry D. Richardson, supra; Michel v. So. Ins. Co., supra; Levy v. Union Indemnity Co., supra; Pleasant H. Pendleton v. Charles H. Russell, supra; Oklahoma Natural Gas Co. v. State of Oklahoma, supra; Chicago Title & Trust Co. v. Forty-One Thirty Six Wilcox Bldg. Corporation, supra. The plaintiff has attacked the other grounds urged by the defendant on its motion to dissolve and exceptions. It would serve no useful purpose to go into those matters for the reason that our conclusions dispose of the case. For the reasons assigned, the judgment of the lower court is affirmed at appellants’ cost.

PER CURIAM. Plaintiff’s counsel, in his brief supporting his application for rehearing, seems much concerned with what he deems to be an attack upon the partnership known as the Toye Bros. Yellow Cab Company and its members. We have reconsidered our opinion and are convinced that there is nothing contained therein which can be construed as a reflection upon the Toye Bros. Yellow Cab Company. What we did say was that the witnesses, who were largely employees of that company, seemed to have the impression that their interests lay in promoting the cause of the plaintiff Crawford. That this is true is clearly shown by the statement which we quoted in our original opinion from the testimony of Fonseca, who, when asked whether he felt it to be his duty to give a statement to the Yellow Cab Company adjuster, said, “Yes, sir, to hold my job, yes, sir.” We intended no criticisfn of Toye Bros. Yellow Cab Company or its members and, as far as we can see, made none. After a reconsideration we are convinced that our opinion on the merits of the case is correct. Rehearing refused.

HIGGINS, Justice. This is an action by a laborer to recover compensation in the sum of $7.80 per week for a period not exceeding 400 weeks (subject to a credit of $46.80, compensation paid for disability for six weeks), alleged to be due him for disability resulting from a crushing injury to his right hand on October 13, 1941, sustained while he was pushing tramcars loaded with long heavy poles, at his employer’s place of business. The defendant, in its answer, admitted that the plaintiff was employed by it, and that he received an accidental injury on the above date, when a portion of the distal phalanx of the third or ring finger of his right hand was crushed and amputated, and that he had been paid six weeks’ compensation for this disability. It denied that any other part of the plaintiff’s hand was injured and that he suffered any further disability from the accident. After a trial on the merits, the district judge awarded the claimant $3 per week compensation for a period not exceeding ISO weeks beginning October 13, 1941, less the six weeks during which he was paid compensation, with legal interest on each weekly installment from its respective due date until paid, and taxed the defendant with court costs, including the expert medical fees of the doctors. The defendant appealed. The plaintiff answered the appeal praying that the judgment be amended so as to grant compensation at the rate of $7.80 per week for a period of 400 weeks and, in the alternative, if the court found there was only partial disability, compensation not exceeding 300 weeks. The Court of Appeal annulled the judgment, dismissed the plaintiff’s suit, and denied a rehearing. La.App., 17 So.2d 648. The plaintiff applied to this court for a writ of certiorari or review, the granting of which was opposed by the defendant, on the basis that only issues of fact were presented. We granted the writ and the respondent then filed a motion to recall and dismiss it on the ground that no question of law was involved and, therefore, it had been improvidently issued. The Court of Appeal, in its opinion, stated: “The type of injury claimed to have been sustained by plaintiff has resulted in that character of affliction commonly called a ‘claw hand.’ The fingers have become stiffened in a semi-clutching position, and permit of no extension or flexion. * * * Careful weighing of the testimony of plaintiff’s medical witnesses, even in a light most favorable to plaintiff’s contention, leaves the result far from conclusive in plaintiff’s favor. * * * If the disability could be attributed to an enforced disuse resulting from injuries sustained in the accident, of course, plaintiff would be entitled to recover, but we do not find this to be the case. On the contrary, we can only arrive at the conclusion that the disuse was voluntary on the part of the plaintiff, and the stiffness of the fingers and the atrophy of the hypothenar eminence are attributable to his wilful neglect.” Later, the court stated that it was of the opinion that the “ * * * plaintiff has failed to sustain the burden of proving his case by a preponderance of the evidence * * Counsel for the plaintiff contends that the Court of Appeal, in reversing the judgment of the district court in his favor, committed an error of law in requiring the plaintiff’s medical testimony to conclusively show that the “claw hand” or disability resulting therefrom was caused by the injury he sustained. On the other hand, counsel for the defendant argues that the Court of Appeal required the plaintiff to prove the case by a preponderance of the evidence only, as shown by the above statement. The law is clear that the plaintiff in a compensation case bears the burden of proving his case with reasonable certainty, by a preponderance of the evidence. He is not obliged to furnish conclusive proof. In Dart’s Louisiana Digest, Second Series, Volume 7, page 322, Paragraph 149, Workmen’s Compensation, Presumptions and burden of proof, it is stated: “An employee suing for compensation under the Employers’ Liability Act (Dart’s Stat., 4391-4432), must make out his case by a fair preponderance of the evidence. * * * (1926) Purvis v. Ware Const. Co., 5 La.App. 684; (1927) King v. Rapides Packing Co., Inc., 5 La.App. 424; (1927) Reynolds v. Hotel Youree Co., 6 La.App. 790; (1929) Lee v. Southern Surety Co., 14 La.App. 393, 123 So. 502, 127 So. 36; (1930) Youngblood v. Colfax Motor Co., Inc., 12 La.App. 415, 125 So. 883; (1931) Hillman v. Wetherbee, 16 La.App. 136, 133 So. 535; (1932) Tullis v. United Carbon Co., La.App., 142 So. 307; (1932) Trotti v. Natalbany Lbr. Co., Ltd., La.App., 144 So. 627; (1934) Prudhome v. Cedar Grove Ref. Co., Inc., La.App., 157 So. 158; (1935) Moore v. Thompson-Ritchie Grocer Co., La.App., 161 So. 654.” In 32 Corpus Juris Secundum, Evidence, § 1021, page 1051, under the heading “What Constitutes Preponderance”, we find: “By a preponderance of evidence is meant simply evidence which is of greater weight, or more convincing, than that which is offered in opposition to it. * * ” In 32 Corpus Juris Secundum, Evidence, § 1016, page 1039, under “Weight and Sufficiency — Degree of Proof”, it is stated: “Conclusive evidence has been defined as evidence which is incontrovertible, either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary; evidence from which only one reasonable conclusion can be drawn, taking all the facts and surroundings into consideration. It has also been defined as such evidence as, being uncon-tradicted, controls the decision.” In 15 Corpus Juris Secundum, page 802, we find: “Conclusive. In its primary legal signification the word has been defined as meaning beyond dispute, or beyond question ; decisive, irrefutable, or uncontro-vertible; final; leading to a conclusion or decision, not admitting of explanation or contradiction, putting an end to the inquiry, debate or question, also shutting up a matter or shutting out all further evidence. * * * ” See, ajS0) American Homestead Co. v. Zemurray, 195 La. 37, 196 So. 13. # sjí if? ‡ # sjt “Conclusive proof. A phrase which has been held equivalent to ‘to a moral certainty’ or ‘beyond a reasonable doubt.’ ” In Words and Phrases, Perm. Ed., Volume 8, pages 365 and 367, the following definitions are given: “ ‘Conclusive’ means decisive; irrefutable.” “ ‘Conclusive evidence’ is that which is incontrovertible, that is to say, either not open or not able to be questioned, as, where it is said that a thing is conclusively proved, it means that such result follows from the facts shown as the only one possible: the term conclusive proof meaning either a presumption of law or evidence so strong as to overbear everything to the contrary.” From our study of the Court of Appeal’s opinion, since it contains two conflicting statements with reference to the extent of proof, we were unable to determine, at the time the writ was granted and we are not certain now, which one of the two degrees of proof the court required of the plaintiff. Counsel for the plaintiff in his application and in his brief challenges the correctness of the Court of Appeal’s statement that voluntary disuse of an accidentally injured member or wilful neglect of an accidental injury causing stiffness to the fingers and atrophy of the muscles is a defense, particularly where it is conceded the attending physician, who was employed by the compensation insurance company, admits he did not advise petitioner to exercise his fingers or recommend any treatment for and manipulation of the injured hand. He states that Section 28 of Act 20 of 1914 deals only with a wilful intention to injure or misconduct and not with disability caused by voluntary nonuse or wilful neglect of the injured member, and that if Section 28 is applicable, such a defense must be specially pleaded and proved by defendant by a preponderance of evidence, both of which requirements the defendant failed to meet in this case. There is no doubt that if Section 28 is applied in this case that the burden of proving the wilful intention of the claimant to injure himself is upon the defendant under the express provisions of that section of the statute, as held in the following cases. Johnson v. G. M. Johnson Lbr. Co., La.App., 200 So. 48; Youman v. Railways Express Agency, La.App., 190 So. 858; Sharbino v. Colfax Lumber & Creosoting Co., La.App., 181 So. 20; Morvant v. Ætna Casualty & Surety Co., La.App., 181 So. 595; Harris v. Lily-White Laundry, Inc., La.App., 178 So. 523; Hall v. A. & B. Pipe & Supply Co., La.App., 159 So. 417. Section 28 provides that “ * * * no compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another * * In this case it is not contended that the employee’s injury was not purely accidental but that the stiffness in his fingers and the atrophy in the muscles or hand, if any, were caused by voluntary inactivity and wilful neglect to use his hand. The defendant’s doctor frankly stated he prescribed no treatment or exercise for the plaintiff’s hand. It is our opinion that the provisions of Section 28 of Act 20 of 1914 are not apposite here. See Section 38 of Act 38 of 1918. From the above statements, it is clear that it cannot be successfully urged that the application for the writ and the judgment of the Court of Appeal are confined exclusively to questions of fact. In the case of Madison Lumber Company v. Helm, 202 La. 1061, 13 So.2d 349, it was held that “ * * * ‘after a writ of review has been granted, we are obliged to decide the questions of fact as well as the questions of law that are tendered for decision; and to that end it is declared in the Constitution, Article 7, Section 11, that we shall have “the same power and authority in the case” as if it had come here directly by appeal.’ Robichaux v. Realty Operators, Inc., 195 La. 70, 196 So. 23, 27.” The petitioner, an unskilled young negro laborer, had been regularly employed by the defendant doing hard work for several months prior to October 13, 1941, the date of the accident. His average weekly wage was $12. He and another negro laborer were pushing two small tramcars loaded with two fifty-foot telephone poles, in order to place them on the steel skids running at right angles to the tramcar tracks so that they could be taken into the mill for the creosoting process. One end of the poles rested on one of the tramcars or dollies and the other on the second one. Nothing supported the poles in the center. The iron cross-arms of the tramcars on which the ends of the poles rested extended across the frame of the cars and past the tracks of either side and slightly sloped toward the center of the cars. One of the poles had a bend or bow in it and as the cars were being pushed along this pole moved sufficiently to jam the plaintiff’s right hand against the skid and its support, causing a crushing and smashing injury to his hand and particularly the distal phalanx of the ring or third finger of the right hand, which was left hanging by a shred of skin and was subsequently amputated surgically. The plaintiff was taken to the office for first aid and from there to the doctor, where he received medical attention, and thereafter treatments until November 19, 1941, when the doctor discharged him as completely well and able to return to hard work on November 24, 1941. Compensation at the rate of $7.80 per week was paid to him for a period of six weeks. During the first week of December, 1941, the plaintiff was suffering from an ulcer and went to a free public health clinic, where he was examined by Dr. J. M. Sheppard, who made six blood tests for venereal diseases and found all of them negative. At that time, he also examined the plaintiff’s right hand. He states his finding, as follows: “At that time he was wearing a bandage on the distal phalanx of his ring finger, which had been amputated, the hand was swollen, red and hot, and there was marked stiffness in the last three fingers, and also there was atrophy of the hypothenar eminence, and at that time the atrophy was suggestive to me that it was probably atrophy of disuse. “Q. When was the next time you saw him? A. Saw him the next time on the 31st of February, 1942, and the swelling and heat, and all evidence of active inflammation had disappeared, but there was still some stiffness in the second finger on the right hand, and the third finger on the right hand, which the distal phalanx had been amputated from, and also from the small finger of the right hand. At that time his grip in the last two fingers was not as strong, comparatively, as the other hand, and there was still some atrophy of the hypothenar eminence.” The doctor’s testimony was taken on May 5, 1942, by deposition, and he was asked, “ * * * Did you examine the plaintiff again this morning?” and answered, “At this time there was still stiffness of the last two fingers of the right hand, and of course, the distal phalanx of the third finger was still missing, and the grip in the right hand was less than in his left hand, most markedly so in the area of the last two fingers. “Q. Did you find the atrophy of the hy-pothenar eminence present at that time? A. Yes, the atrophy was still present.” He also testified that if the plaintiff had attempted to do laborious work with his injured hand in December, 1941, that he would have further impaired it. He recommended at that time treatment by placing the hand in hot water solutions several times a day, massaging, and the manipulation of the hand by squeezing a rubber ball. He was of the opinion from the case history that the disability in the hand resulted from the accident and on the date' he examined him, May 5, 1942, he was still unable to perform hard manual labor with his right hand and that, “he should be able to get a good deal of function restored” in his hand in a year’s time. He also stated that he could find no pathology or evidence of crushed bones other than the amputated phalanx and that the plaintiff was a young man of steady nerves and otherwise in good health. Dr. J. T. Smith, who examined the plaintiff for the Draft Board in September 1941, found him to be in normal health and again examined him on May 13, 1942, for the same Board. He found that the distal phalanx of the right ring finger had been amputated and he had a “sort of claw hand there, with the third, fourth, and fifth fingers being mainly involved. He also has some deviation of his hand to the right; ulna deviation, because the ulna bones are on that side.” At the time of his examination in May and at the time he gave his testimony on June 5, 1942, he stated there was a “little atrophy of the muscles on this side. * * * This is the eminence known as the thenar eminence. (Indicating mound on palm at base of thumb). And this is the hypothenar eminence. (Indicating ridge of palm along the bases of fingers). That is made up of muscle. There might be a little atrophy there. Of course, that can be from disuse or be from actual pathology. I do not know what it is due to but I believe there is some there.” He was of the opinion that such a condition could result from an accidental injury and based upon the case history was of the opinion that the “claw hand” was the result of trauma and that the plaintiff was unable at that time to do hard manual work. He advised the same treatment prescribed by Dr. Sheppard. The plaintiff is supported in his testimony that he sustained an accidental injury, the end of his third finger on his right hand almost being crushed off and that it bled freely and he received medical attention from the employers’ liability insurance company physician for a period of •six weeks when he was discharged as completely healed and able to return to hard work. He is corroborated in his statement that he attempted to do manual labor in connection with making cement blocks but was unable to hold a wheel barrow handle when it. was loaded or to keep it from turning over, because of the weakness in the grip of his right hand. He is also corroborated in his testimony that he attempted to secure employment in the Min-den Shell Plant, a war industry, but was rejected on account of the condition of his hand. He testified that he did light work around the house and sold flowers for a former employer. He also worked a few days washing a brick wall with a hose and a brush. At the time of the trial, he said his hand was still numb and had a weak grip. The defendant foreman testified that immediately after the accident he ran out of the mill when he heard the plaintiff scream and upon seeing that his hand was cut and bleeding, he asked him how the accident happened and the petitioner then went through an actual demonstration of how the end of his right ring finger was caught between the skid rail and the cross iron bar on the tramcar. He states that no complaint was made at that time of injury to any other part of his hand. Another employee of the defendant testified in its behalf and states that he arrived at the scene of the accident “immediately after it happened” but that he did not see plaintiff make a demonstration of how his hand was injured and did not hear him make any statement that only the end of his finger was hurt. He did not see any blood on the skid rail or its support at the place where the foreman said the plaintiff pointed out that his finger had been jammed. He also testified that the foreman at once took the injured young man to the office for first aid. Dr. S. W. Boyce, the attending physician, who was employed by the compensation insurance company, testified that he examined the plaintiff on October 13, 1941 after he was injured, and amputated four-fifths of the distal phalanx of the third or ring finger on his right hand but found no other injury to any other part of the hand; that after treating him until November 19th, he found that the plaintiff’s finger was completely healed; and that he was at that time able to go back to work at hard manual labor but recommended that he be paid compensation to November 24, 1941. He admits that he did not instruct the plaintiff to treat his hand with hot applications or with hot salt water solutions or to massage or manipulate it during the six weeks’ time that he had him under observation and treatment or thereafter. On the date of the trial, June 5, 1942, he noticed calluses in the plaintiff’s right hand and stated that this was evidence of the fact that the plaintiff had used his hand and, therefore, he concluded that he was a malingerer. Dr. Chas. S. Boone, an expert for the defendant, testified on June 5, 1942, that he examined the plaintiff’s hand and observed the amputation of the distal phalanx of the right ring finger but saw no further evidence of any other injury to the hand. He found that he had been using his hand “ * * * because he has some nice calluses here.” He noticed slight atrophy in the muscles of the right hand, which he attributed to disuse. He concluded that the plaintiff could flex or close his fingers but that he could not fully extend them because he had done laborious work. He was of the opinion that the plaintiff was intentionally holding his hand in the stiff or claw-like position and was able to do hard work. On cross-examination, he admitted that the first time he examined the boy, several months after the accident, he advised him to use hot salt water treatments three or four times a day and to manipulate the fingers and muscles of the hand. Dr. T. M. Oxford, a bone specialist, testified that he made several X-rays of the plaintiff’s hand before testifying and that there appeared to be no bone injury, except to the amputated part of the finger and he could find no evidence of a crushing injury to the other part of the hand. He admitted there was a condition known as traumatic hysteria and said: “There is hysterical contraction, if it is not just fake in holding it. I don’t know which it is. I don’t think anybody could tell but the boy.” ’ He failed to observe any calluses in the hand and attributed the atrophy of the muscles to their disuse. It was stipulated that the plaintiff was inducted in the Military Service under the Selective Service Law, SO U.S.C.A.Appendix § 301 et seq., in June 1944, and, since that time, has been and is now in the Service. There is no doubt that the plaintiff suffered an accidental injury to his hand and it would be unusual that the tip-end of the third finger alone would be practically crushed off and not any other part of the hand injured when it was smashed by a heavy object such as a 50 foot telephone pole or tramcar or both of them. At the time the plaintiff went to Dr. Sheppard at the free public clinic, he went there for treatment of an ulcer and there is nothing to show or indicate that at that time, in the first week of December, 1941, he even thought about bringing a suit for compensation. This suit was not filed until February 25, 1942. At both times he examined him, Dr. Sheppard found the plaintiff’s right hand in such a damaged condition, there being objective symptoms thereof, that it is manifest he suffered an injury to other parts (that is, muscles, veins, nerves and tendons) of the hand besides the ring finger. Clearly, the plaintiff’s hand was in no condition for him to go back to hard work in either December 1941 or February 1942. It is most unlikely that the plaintiff was “compensation conscious” in December, 1941, because there is nothing in the record to indicate that he contemplated suing the company after he had been refused further compensation when the six weeks elapsed. It is also significant that this young negro tried to obtain employment but was rejected on account of his injured right hand and that he endeavored to work at other jobs as best he could. The defendant’s witnesses, the two exports and the attending physician, conceded that the atrophy, that is, the wasting, was not a subjective but an objective symptom and could not be feigned. They apparently felt that they must explain why the plaintiff had what the Draft Board doctor and the free public clinic doctor, disinterested witnesses, described as a kind of “claw hand”. The two experts found, on June 5, 1942, that there was some atrophy and accounted for it on the ground that the plaintiff had failed to exercise his hand by using it. The doctor who treated the claimant did not notice any atrophy. However, the attending physician and one of these experts, in justification of the conclusion that the plaintiff was a pretender pointed to the fact that he had calluses in his right hand that could not have been caused by the work he performed prior to the accident. In short, they say this was evidence of the fact that he had been using his hand. Now, since he had been using his hand, for he also admits that he did, the experts failed to account for the atrophy which they themselves observed. The atrophy in the muscles and the stiffness in the fingers are satisfactorily and convincingly explained by traumatic injury of the hand, for defendant’s doctors grant that a crushing injury will cause a “claw hand”. The district judge and the Court of Appeal concluded that the injured hand was still disabled at the time of the trial. It is our opinion that the plaintiff successfully bore the burden of proving by .a preponderance of the evidence that not ■only the third finger of his right hand was injured in the accident but that other parts of his right hand were so injured as to. produce the disability to perform manual labor. Jones v. Hunsicker et al., 188 La. 468, 177 So. 576. There is testimony in the record, particularly in Dr. Sheppard’s, that this condition would continue for a period of one year. There is not any evidence in the record that would justify us in concluding that it would continue for a greater period of time, and, therefore, it is our view that the plaintiff is entitled to recover compensation at the rate of $7.80 per week for fifty-two weeks, subject to a credit of six ■weeks for which period of time he has been ■paid compensation. For the reasons assigned, the judgment ■of the Court of Appeal is annulle4 and set .aside. It is further ordered, adjudged and de- • creed that there be judgment herein in fa■vor of the plaintiff, R. T. Edwards, and .against the defendant, Shreveport Creosoting Company, Inc., in the sum of $7.80 per week for a period of fifty-two (52) weeks, beginning October 13, 1941, with legal interest upon each weekly installment from its due date, until paid, subject to a credit ,of $46.80, covering the period of six weeks of compensation previously paid him; and for all costs of court. HAMITER, J., dissenting in part.

WESTERFIELD, Judge. The plaintiff is the beneficiary named in a policy of industrial life insurance issued to her deceased husband Walter W. Jacobs, who died February 9th, 1942, as a result of “rheumatic valvulitis and cardiac hypertrophy — auricular fibrulation then conjes-tive failure”. She sues for the face value of the policy — $750. The defendant insurance company denies liability upon the ground that the insured was guilty of fraud in that he “wilfully misrepresented the true condition of his health at the time he made the written application to it for the issuance of the policy.” There was judgment below in plaintiff’s favor, and defendant has appealed. The policy was issued by the defendant insurance company without medical examination and after a written application had been signed by the insured. The application contains no reference to illness and nothing which would suggest that the applicant should be rejected upon the ground of bad health. This is said to have constituted a wilful misrepresentation within the meaning of Act No. 160 of 1934, § 3, which provides that “no policy of industrial life insurance shall be void, nor shall the rights. of the assured thereunder be impaired, by any misrepresentation in the application of the assured unless such misrepresentation is wilful on the part of the assured and conceals facts as to the ill-health of the assured existing at the time of any such application, and provided further, that fraud shall always be a defense against any suit by the assured, if the insurer shall have obtained an application from the assured as hereinabove provided.” It appears that Mr. and Mrs. Jacobs resided in one-half of a house, the other side of which was occupied by a Mr. and Mrs. J. A. Busha. Mr. Busha was an agent of the defendant company. The two couples were very friendly and frequently visited each other. According to Mrs. Jacobs, Mr. Busha was very persistent in hi§ efforts to induce Jacobs to take out a policy and finally succeeded when, on May 23rd, 1941, Busha, accompanied by a Mr. Moisha Shiff, the superintendent of the defendant company, obtained the deceased’s signature to the application in her living room. The answers to the interrogatories contained in the application were written by Mr. Shiff, who testified that it was the universal custom for insurance agents to write these answers and that he could not remember any case where “the man ever filled in the form”. At the time the application was written Mr. Shiff says that only he, Busha, sometimes called Boucher, and the deceased were present and that it was not written in Jacobs’ living room, but in his, Shiff’s, automobile, while they were taking Jacobs to his place of employment, the Orpheum Theatre. Busha’s wife, who at the time of the trial, had been divorced from Busha and was married to a man by the name of Kilean, testified in substantiation of Mrs. Jacobs that the application was written in the Jacobs’ living room. She and Mrs. Jacobs also stated that in answer to interrogatories propounded by Shiff, Jacobs disclosed the fact that he was under the care of Dr. Wells; that he had had pneumonia and that he, had weakened his heart a little. Dr. Wells testified that he was the attending physician during the last illness of the deceased and that he first saw him on December 18th, 1940 (the application was signed in May, 1941); that at that time he was suffering from “auricular fibrulation” —in other words, heart trouble; that he had considerable difficulty in getting Jacobs to come to his office for treatment; and that he prescribed digitalis. Busha, who was in the armed services at the time of the trial, did not appear in person and did not have his evidence taken by deposition because, it is explained by the defendant, he was inaccessible. The trial judge held that he believed the testimony of Mrs. Jacobs and Mrs. Kilean and, therefore, concluded that both the superintendent and the agent of the defendant had knowledge of the fact that plaintiff was under the treatment of Dr. Wells for some heart affection and that, consequently, there can be no wilful misrepresentation. In the case of Shinn v. National Travelers’ Benefit Association, 1917, 102 Kan. 134, 169 P. 215, 216, it was said: “This court by a long line of decisions is on record to the effect that, when an insurance agent seeking business and finding a prospect puts him through the categorical examination provided by the company and leaves out such answers given by him as would work a refusal of his application, and the company takes his money and issues his policy, it, and not the applicant, is held responsible for the situation thus arising. When, as testified to in this case, the customer makes truthful answers, and the paper supposedly containing them is shoved across the table to him for a signature, and he immediately signs without reading, it does not lie in the mouth of the company to criticize him for trusting the honesty of its agent in writing the answers as given. “This rule, so manifestly in accord with common sense and fair dealing, has abundant support in the decisions of other courts, and still meets with the approval of this court.” In Succession of Dekan v. Life Insurance Company of Virginia, La.App., 172 So. 37, it was held that the knowledge of the agent of an insurance company should be imputed to the insurer and that subsequent issuance of an insurance policy waives the right to claim forfeiture of the policy on the ground that the answers in the application concerning the health of the insured are false, in view of the provisions of Act 97 of 1908. We do not know whether the superintendent who wrote the answers after interrogating Jacobs wilfully falsified them in order that the insurance might be issued and he might receive a small commission to which it is shown he was entitled, but the evidence preponderates to the effect that he knew, because Jacobs told him, that he was under the care of Dr. Wells, who was treating him for a heart ailment and no mention of that fact appears in the application. It would seem, however, that the system under which the defendant company operated, which presumably is the same as that of all other companies doing a similar business, is calculated to subject their solicitors to considerable temptation, particularly in view of the universal practice of the agents writing the application instead of the applicant. The general manager of the defendant company testified that the agents, that is to say, men like Busha, work on a strictly commission basis and that the superintendent (Shiff) gets a salary plus a small commission. There is, of course, no objection to an insurance company issuing policies without a medical examination, but when the agent, whose livelihood depends upon his obtaining policies, fills out the application with the knowledge that no medical examination of the applicant is to be made, further pressure is put upon him and a further strain upon his fidelity to his employer. Much stress is laid upon the fact that the deceased took out two other industrial life insurance policies, one with the Monumental Life Insurance Company and one with the Metropolitan Life Insurance Company, within a year of his death and after he had discovered that his heart was affected. The other two policies were also issued without medical examination. This fact is pointed to as indicating an intention to defraud the three insurance companies involved by withholding the insured’s true condition of health, for in the other two applications, as in the one before the court, no mention is made of his heart trouble. Mrs.' Jacobs testified that the other two policies were obtained after the agents who filled in the application blanks were informed of her husband’s true state of health, but that the applications as filled out by the agents did not reflect it. In other words, she contends that these other policies were issued under the same circumstances as the present one. She further states that the policy of the Metropolitan Life Insurance Company was delivered while her husband was in the hospital. The other two insurance companies have also refused to pay Mrs. Jacobs as beneficiary. While the procurement of these policies shortly before the insured’s death might be considered as a suspicious circumstance, we are not now concerned with those other two policies and the suspicion, such as the facts justify, is not sufficient to overcome the proof that in the instant case, the defendant’s agent was informed of the true state of Jacobs’ health. We know of no reason why Mrs. Kilean should have testified as she did and to the effect that the defendant’s agent knew of Jacobs’ illness, unless she was telling the 'truth. The knowledge of the defendant’s agent is imputed to his principal. Succession of Dekan v. Life Insurance Company of Virginia, La.App., 172 So. 37. Our conclusion is that the judgment of the district court was correct, consequently, and For the reasons assigned the judgment appealed from is affirmed. Affirmed,

DORE, Judge. ■ Plaintiff, as owner and holder of a note made and executed by the defendants, Mrs. Nadia Bloomquist Stead and her husband, Bernard' A. Stead, both non-residents of the State of Louisiana, for the sum of $150, bearing date of January 1, 1941, due on January 1, 1942, with interest thereon at 8% per annum from maturity until paid, and providing for a reasonable attorney’s fees, instituted this suit, after the said note had become due, against the defendants, by way of an attachment to recover the face amount of the note, with interest, as provided for by the note, and $50 as attorney’s fees. Under the writ of attachment which issued, the undivided 1/7 interest of the defendant, Mrs. Nadia Bloomquist Stead, in and to the succession of her deceased father and mother, John A. Bloomquist and Eliza T. Bloomquist, was seized. It appears that the succession of John A. Bloomquist and his wife, at the time of the attachment, was under administration. The administrator thereof appeared in this suit and filed a motion to dissolve the writ of attachment issued herein on the ground that the property of the succession was in the care and custody of the court and in the process of administration and that plaintiff was without authority to file this suit , until her claim had been presented to the administrator for approval and the administrator had failed to approve the same for payment. To this motion, the plaintiff excepted for the reason that the administrator had no interest in the subject matter and further that the motion disclosed no right or cause of action. On the trial of the motion and exception, the exception of plaintiff was sustained and the administrator’s motion was dismissed at his cost. The administrator has' failed to appeal from the judgment rendered against him, and therefore we are not called upon to pass on the merit of his motion. Thereafter the defendant, Mrs. Nadia Bloomquist Stead, filed a motion to dissolve the writ of attachment based on the ground that since the succession of her father and mother was under administration, her undivided 1/7 interest therein could not be attached or seized, the said succession property being then in the custody of the court. The motion was overruled or denied. The defendants made no appearance to the main demand. Judgment by default was rendered against the defendants for the sum claimed] sustaining the writ of attachment, the resulting lien and privilege recognized and ordered enforced, and ordering the property sold and its proceeds to be paid to plaintiff by preference and priority over all other creditors of defendants. The defendants have appealed. The sole question brought up by this appeal is whether or not the interest of an heir in a succession can be attached or seized and sold. It is now well settled that an heir’s undivided share or interest in a succession may be seized and sold under execution, the only limitation being that the proceeding must concern the whole of the heir’s rights in the succession, subject to the charges with which the succession is burdened, and not a specific part of the property inherited by the heir. Mayo v. Stroud, 12 Rob. 105, and many other cases, the latest being Lacaze v. Hardee, La.App., 7 So.2d 719. The purchaser of the heir’s interest in the said succession then takes the place of the heir. The many cases cited by the defendant are cases in which the plaintiffs were creditors of the succession and had attempted to seize the succession assets while the said succession was undei- process of administration. The present case is different in that the plaintiff is not a creditor of the succession, but is a creditor of an heir. The seizure was not one of the succession property but was a seizure of an undivided interest of an heir of a succession. For these reasons, the judgment appealed from is affirmed.

WESTERFIELD, Judge. Gerson Z. Tolmas, the owner of a certain commercial building in the Parish of Jefferson, known as No. 2023 Metairie Road, brought this suit for possession in October, 1944, against Simon L. Streiffer, who had occupied the premises under a written lease which expired September 30, 1944. The suit was defended upon the ground that a verbal extension of the lease for the duration of the war had been agreed upon between Tolmas and Streiffer, before the expiration of the lease. In the alternative, a stay order was prayed for upon the ground that Streiffer was in the military service of the United States and, in view of the Soldiers’ and Sailors’ Relief Act of 1940, SO U.S.C.A.Appendix § 501 et seq., he was entitled to such relief. Judgment was rendered in favor of the defendant staying the proceedings for the period of Simon L. Streiffer’s military service and for three months thereafter conditioned upon his promptly paying the monthly rental of $75. The judgment also ordered the plaintiff to pay to Julian Samuel, the curator, the sum of $50 as 'attorneys’ fees. Plaintiff has appealed to this court. The evidence fails to establish the alleged extension of the lease. The plaintiff, Gerson Tolmas, and his father and mother, Mr. and Mrs. Charles Tolmas, testified in the negative and Louis Streiffer, defendant’s father, testifying from hearsay, without objection, declared that his son had told him that there had been an oral extension of the lease. If the absent Streiffer had been present he could have done no more than assert what his father was permitted to say. Moreover, in a former proceeding entitled Charles Tolmas, Inc., v. Streiffer, possession of these premises was sought upon the ground that the lessee had violated some of the terms of the lease. In that suit the defendant, after denying the alleged breaches of the contract, pleaded in the alternative^ the Soldiers’ and Sailors’ Relief Act of 1940. There was judgment staying the proceeding which, upon appeal to the Supreme Court of Louisiana (199 La. 25, 5 So.2d 372, 374) was reversed and the case remanded to the District Court for further proceedings. Thereafter, another stay order was granted and plaintiff took no further action until the present suit was filed in 1944, when the term of the lease had expired. The former suit is mentioned to indicate the desire of the plaintiff to get possession of the property as long ago as 1941, from which it would appear extremely unlikely that any verbal extension of the lease had been granted. Our conclusion on this feature of the case is that the extension has not been established. In the Soldiers’ and Sailors’ Relief Act of 1940, Section 100, provision is made “for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act remains in force.” Section 201 of the Act declares that: “At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, * * * (the court may, in its discretion, continue) on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.” In the case of Charles Tolmas, Inc. v. Streiffer, supra, our Supreme Court, in referring to these provisions of the Act, said: “Thus it may be seen that this legislation was enacted to protect the rights of the men in the military service of the Nation during the present emergent conditions; but this protection is afforded them only in those cases in which the rights of the persons in the military service might be prejudiced without their presence to either prosecute the action or conduct their defense, and it is only in those cases that the courts are authorized to stay the proceedings for the duration of their absence. Otherwise, the act has no application.” See, also, Commercial Securities Company, Inc. v. Kavanaugh, La. App., 13 So. 2d 533. To permit a stay of the proceedings in this case for the duration of the war would, it seems to us, work an injustice and hardship to the owner who desires possession of his property without serving any purpose for which the Soldiers’ and Sailors’ Relief Act was adopted. There is nothing in that act which contemplates conferring upon a soldier or sailor any privilege not enjoyed by a civilian. It is merely intended to secure him in his legal rights until he may return and defend himself. If there was anything in this case which the presence of Streiffer could alter to his advantage we would have no hesitancy in confirming the stay order, but all that Streiffer could do, if present, would be to assert that a verbal extension had been given him ab his father did without objection. For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of Gerson Z. Tolmas, plaintiff, and against Simon L. Streiffer, defendant, condemning him to vacate the said premises Number 2023 Metairie Road, between Helois and Hesper-Streets, Parish of Jefferson, and to deliver possession of same to petitioner, and further ordering that upon failure to comply with said judgment within twenty-four hours after its rendition, a writ of possession and ejectment shall issue, commanding the sheriff for the Parish of Jefferson to eject them from said premises and to put petitioner in full possession thereof. Defendant to pay all costs. Judgment reversed.

ROGERS, Justice. The City of Gretna brought this suit against the Gulf Distilling Corporation for the cost of water which plaintiff claimed defendant used and failed to pay for. The suit was dismissed on exceptions and plaintiff has appealed from the judgment. It was alleged in the original petition that on or about November 7, 1942, defendant began operating a distilling plant in the City of Gretna without having applied for water service as it was required to do under the laws of the city, and that from that date until the end of May 1943, the defendant used water from the mains of the city which had been connected with the plant of the American Distillery Corporation and also from the fire hydrants of the city. That the cost of the water consumed by defendant during the month of November 1942 amounted to $172.27, and that the cost of the water consumed by defendant for each of the months of December 1942, up to and including May 1943, amounted to $240.49 for each month, or a total cost of $1,615.23, to which a penalty of ten per cent, or $161.52, should be added, making a total amount due plaintiff $1,776.75. To that petition defendant filed an exception of vagueness, alleging that plaintiff failed to set out the number of gallons of water used by the defendant each month and the price per gallon, and for that reason plaintiff should be ordered to amend his petition. Before the exception was fixed for trial, plaintiff filed a supplemental and amended petition. It was alleged in this petition, after reiterating all the allegations of the original petition, that paragraph 2 of the original petition should be amended so as to read as follows: “That the defendant on or about Nov. 7,1941, began operating a distillery plant in the City of Gretna, without ever having applied for water service from the City of Gretna, as it was required to do under the laws of the City of Gretna, and from said date until the end of May, 1942, said defendant used water from the City of Gretna water mains connected previously with the American Distilling Corporation amounting to the sum of $1,615.23, as appears from an itemized statement of account herewith attached and made a part hereof. That payment for water consumed should have been made on the 10th day of the month following service and upon failure to make payment on or before said day, a penalty of 10% additional would be imposed. “(2) That during the latter part of April 1942, plaintiff discovered that the defendant was illegally diverting water through a two inch connection with its mains on Second Street, which line was supposed to have been discontinued and closed off, when a four inch line and meter was installed for the American Distilling Company on Fried near Front Street “(3) That it was also discovered that the Gulf Distilling Corporation had been using water unlawfully from the City of Gretna fire hydrants on the public sidewalks of the City and that it has not been possible to estimate the amount of water so diverted and used, but that the Gulf Corporation ought to have records to show the amount of said consumption and that judgment should be rendered against said defendant for the value of the water so diverted and used. In the event that the defendant kept no record of the water so illegally diverted and used, the Court should fix the amount thereof and render judgment in favor of the City of Gretna therefor at the rates charged by the City of Gretna for water consumed; and petitioner is of the belief that water diverted through the said fire plugs would amount to not less than $400.00.” . Attached to the petition is an itemized statement covering the amount of $1,615.23 claimed as the cost of the water illegally used by the defendant from the water mains of the City of Gretna which had been connected with the American Distillery Corporation. Plaintiff prayed for judgment in the amount shown on the itemized statement, together with an additional amount of $400, which plaintiff alleged was diverted from the fire hydrants of the city and illegally used by the defendant, or for a total of $2,015.23, together with a penalty of ten per cent thereon and five per cent interest from judicial demand. To this supplemental and amended petition defendant also filed an exception of vagueness on the ground that the allegations of the petition were too general and indefinite to permit the defendant to safely answer. After hearing the parties, the trial judge maintained the exception and ordered plaintiff to amend his petition by setting forth the number of gallons of water defendant used each month and the price per gallon. The judge also ordered the plaintiff to amend his petition so as to eliminate suppositions and to specifically allege whether the water line was discontinued and closed off, and to set forth specifically, as an allegation of fact, whether the defendant has or has not the records to show the amount of water consumed by it. Plaintiff then filed a second supplemental and amended petition claiming $2,015.23 with penalties and interest. It was alleged in this petition that during the latter part of April 1942, the plaintiff discovered that the defendant had been illegally obtaining water through a two-inch line connected with plaintiff’s water mains on Second Street between Amelia Avenue and Fried Street, which water line had been cut off during the month of August 1935, when the property was being operated by the American Distillery Corporation; that the defendant knew the water was being diverted through the said two inch line and also knew that there was no meter operating on said line and that the defendant had never been billed for the water passing through the said two inch line; that after the discovery by plaintiff of the illegal diversion of water by the defendant, plaintiff cut off the two inch line; that for the first month, May 1942, when the water used in defendant’s manufacturing plant passed through the four inch meter located at Fried Street near Front Street, the meter showed that the defendant used 2,152,400 gallons of water for the month of May 1942, for which, based on the regular water rates, plaintiff charged defendant $240.49; that the plaintiff having no means of determining the amount of water illegally used by defendant, since it began its operations on November 6, 1941, plaintiff charged defendant for the remainder of the month of November 1941, or for twenty-two days, $172.29, and for the months of December 1941, January, February, March and April 1942, at the rate of $240.49 a month, as shown on the itemized statement annexed to the petition as part. That the amount of water consumed and the amount due therefor for the month of May 1942 were used as a basis for the estimate of the amount due for the water illegally used by defendant for the previous six months. It is further alleged in the second supplemental and amended petition that during the early part of June 1942, at the request of defendant, a conference was held between the officers of the City of Gretna and the vice-president of the defendant corporation with reference to the claim of the city for the use of the water which had been illegally used by defendant, and that the vice-president of the defendant corporation agreed to furnish the city with the records of the corporation showing the consumption of water by the defendant, fuel costs and electric power costs as well as production records and any other data showing the consumption and use of water. Plaintiff alleges that this information was never furnished and that when an attempt was made to obtain the information in the district court for the Parish of Jefferson, during the trial of a suit by the Gulf Distilling Corporation against the City of Gretna for an injunction to prohibit the City from cutting off its water supply, defendant’s objection thereto was maintained by the trial judge. To this second supplemental and amended petition defendant further filed an exception of vagueness on the ground that the defendant had failed to comply with the order of court maintaining the exception of vagueness previously filed by defendant, and on the further ground that the original and supplemental petitions set forth two separate and distinct causes of action based on inconsistent and irreconcilable allegations of fact and that the supplemental and amended petitions sought to ■change the issues from those set forth in the original petition. The trial judge maintained defendant’s ■exception and dismissed plaintiff’s suit for the following reasons, as shown by his written opinion filed in the record: . “The Court rendered judgment on the exception of vagueness only insofar as defendant contended it should be amended, that is, to furnish an itemized statement showing the number of gallons of water used each month and the price per gallon. When the second supplemental and amended petition was filed, defendant then complained again that it did not comply with the judgment of the Court ordering the plaintiff to amend in that the plaintiff should have alleged and furnished an itemized statement covering the water used in 1942 and 1943, as alleged in the original petition, but that instead it furnished an itemized statement covering a period different from that set out in its original petition, that is water used in 1941 and 1942. “As I appreciate the pleadings, the plaintiff is bound by the allegations contained in his original petition, and as stated before, there is no allegation of error, mistake or inadvertence contained in either supplemental petition because, if there was, the situation might be different, but as the matter stands, there is no question but that the demand contained in the supplemental and amended petition is entirely different from that contained in the original petition; the allegations of fact are entirely different in the amended and supplemental petitions from those in the original petition, making separate demands contrary, inconsistent and irreconcilable with each other and changing the issues from those set out in the original petition. “Under the circumstances the defendant is entitled to a judgment maintaining its exceptions; however, the Court cannot order the supplemental and amended petitions expunged from the record and stricken out but defendant is entitled to a dismissal of the suit.” The trial judge erred in sustaining defendant’s exceptions and dismissing plaintiff’s suit. The amended petitions did not introduce any new issue in the suit, nor did they alter the substance of plaintiff’s demand. The action of plaintiff in renewing and increasing its demand by the amended petitions can not be regarded in any legal sense as changing the substance of plaintiff’s demand. In its original petition, plaintiff claimed $1,615.23 as the cost of the water illegally diverted by defendant from the water mains and from the fire hydrants owned and operated by plaintiff. In its amended petitions plaintiff claimed that the amount of $1,615.23 was due by defendant for the water illegally diverted from plaintiff’s water mains and that in addition the amount of $400 was due by defendant for the water illegally diverted through plaintiff’s fire hydrants. The legal principle applicable to this phase of the case was announced by this Court in the cases of Gasquet v. Johnson, 1 La. 425; Wolff v. Hibernia Bank & Trust Co., 161 La. 348, 108 So. 667, and Martin-Owsley, Inc., v. Philip Freitag, Inc., 202 La. 554, 12 So.2d 270. In Gasquet v. Johnson this Court held that in a suit on a bill of exchange an amendment changing the amount of the bill did not alter the nature of the suit. In Wolff v. Hibernia Bank & Trust Co., which was a suit to recover commissions on sales of merchandise, plaintiff, filed an amended petition, increasing by $100 the amount claimed in the original petition. This Court held that the increase did not change the substance of plaintiff’s demand. In Martin-Owsley, Inc. v. Philip Freitag, Inc., it was held that an amended petition renewing and increasing plaintiff’s demand and praying for a new writ of attachment and citation was not subject to exceptions as changing the substance of the demand in the original petition, since plaintiff’s action in renewing its demand, even for an increased amount, had the same effect, as the filing of a new suit. By its amended petitions and the itemized statements thereto annexed, plaintiff made more specific the allegations of the original petition showing the estimated number of gallons of water for November and December, 1941, January, February, March and April 1942 and the actual number of gallons of water for May, 1942, and the price per gallon illegally used by the defendant. The effect of the amended petitions was to correct any defect or vagueness there might be in respect to those allegations in the original petition. The defendant contends that plaintiff’s demand as set forth in the amended petitions was for the cost of water illegally used by defendant from November 7, 1941, to the end of May, 1942, whereas in the original petition plaintiff’s demand was for the cost of the water illegally used by defendant from November 7, 1942, to the end of May, 1943. That in estimating the number of gallons and the price per gallon of the water illegally consumed by defendant in 1941 and 1942, plaintiff used the actual meter reading figures for May, 1942, on which to base its estimate on the number of gallons consumed, but that defendant used the actual cost of water for May, 1943, on which to base the cost of water consumed by defendant during 1941 and 1942. Defendant’s contention can not be maintained. It is true that the itemized statement attached to the second amended petition shows the estimated cost of the water used by defendant based on the water actually consumed in May 1943. But in the amended petition itself the specific allegation is made that the meter located on Fried Street near Front Street, “showed from the recording of said four inch water meter a consumption of 2,152,400 gallons of water for the month of May 1942, which at the regular water rates would amount to $240.49.” (Writer’s italics.) The petition then alleges that having no means of determining the amount of water illegally diverted by defendant, plaintiff billed defendant for the months of November and December 1941 and January, February, March and April of 1942 at the rate of $240.49 per month. The original petition and the first amended petition also show that defendant was billed for the months named at the rate of $240.49 per month. And the statement annexed to the first amended petition shows that the amount of $240.49 per month charged defendant is based on the cost of the water actually used by defendant in May 1942. Furthermore, this suit was filed on April 13, 1943, and the first amended petition was filed on May 3, 1943, which was before the amount of water actually used by defendant during May-1943 was ascertained. The whole tendency of modern practice is to yield as little as possible to technicalities and to so construe pleadings to serve the ends of justice and prevent useless costs and delays. It is clear that the reference to May 1943 appearing on the statement annexed to the second amended petition "is a mere clerical error which can in no way mislead defendant or prejudice defendant’s rights. Nor is there any merit in defendant’s complaint that the second amended petition failed to comply with the judgment of court ordering the amendment, in that plaintiff should have alleged and furnished an itemized statement showing the amount of water used by defendant in 1942 and 1943, as alleged "in the original petition, and not the amount of water used by defendant in 1941 and 1942. Defendant argues that the allegations are inconsistent and irreconcilable and that they constitute such a change of issues as requires the dismissal of plaintiff’s suit. In support of this argument defendant cites the case of Payne v. Morgan’s L. & T. R. & S. Co., 38 La.Ann. 164, 58 Am.Rep. 174. But the holding there is against the position assumed by defendant here. In that case, plaintiff’s demand was for a specific sum claimed as damages for the loss of a crop of sugar cane and stubble and for the amount of labor used thereon. In an amended petition plaintiff alleged that he had erred in stating the value of the lost crop and of the stubble cane and in omitting to specify the amount expended for labor. The purpose of the amended petition was to supply the omission and correct the errors. The court held the objection that the amended petition altered the substance of the demand had the appearance of being strained and being very far sought and hence it fell of its own weight, and that the amended petition merely amplified the allegations of the original petition based on the same cause of action, and hence, it was properly received. The alleged inconsistency in plaintiff’s pleadings of which defendant complains was not specifically referred to in the exceptions of vagueness, nor did defendant in its exceptions call upon plaintiff to elect as to whether its demand was for water illegally used by defendant from November 7, 1942, to the end of May, 1943, or from November 7, 1941, to the end of May, 1942. However, it is clear that the allegation in the original petition was a mere clerical error which plaintiff sought to correct in its amended petitions. The error is apparent on the face of the record, since, as we have hereinabove shown, the original petition was filed on April 13, 1943, and the first amended petition was filed on May 3, 1943, pursuant to the order of court signed on April 29, 1943, permitting the petition to be filed. In neither defendant’s exception of vagueness filed in the original petition and to the first amended petition, nor in the judgment rendered on the exceptions, was any reference whatever made to the change of dates from 1942 and 1943, as contained in the original petition, to 1941 and 1942, as contained in the amended petition. The effect of the allegations contained in the amended petition, indicating that plaintiff’s demand is for the payment of water illegally used by defendant from November 7, 1941, to the end of May, 1942, and not as alleged in the original petition from November 7, 1942, to the end of May, 1943, is to correct an apparent error. So far as the allegations of the original and the amended petitions may be inconsistent in that respect, the allegations of the amended petitions indicate the abandonment on plaintiff’s part of the allegation of the original petition. We find no reason either in law or equity for denying plaintiff the right to correct its mistake in setting forth in the original petition that its demand is for the cost of water illegally used by defendant from November 7, 1942, to the end of May, 1943. Any other ruling would be vain and useless, since plaintiff could immediately file a new suit based on the allegations contained in the amended petitions. So far as it may be predicated on certain particulars which arc in the defend-ant’s possession, plaintiff’s claim is not, as argued by defendant, based on mere conclusions and suppositions. Plaintiff’s failure to give the particulars is due to the fact, as plaintiff alleges, that the particulars are in the possession of the defendant. This being true, defendant can suffer no disadvantage because the details of plaintiff’s claim are not more fully stated in plaintiff’s petition. If well founded, plaintiff’s demand is not beyond relief. The defendant and not the plaintiff has the records which show the amount of water used and not paid for by defendant. Byrd v. Babin, 196 La. 902, 200 So. 294. An examination of the several petitions filed by plaintiff reveals that plaintiff has given defendant all the information that it can and that the particulars which plaintiff is unable to furnish will be disclosed by the records kept by the defendant itself. The exception of vagueness is a dilatory plea. Such exceptions do not tend to defeat the action but only to retard its progress. Code of Practice, Article 332, The purpose of the exception is to compel the plaintiff to amplify and make more definite his claim in order that defendant may properly prepare his defense. It is futile to order a plaintiff to give information that he alleges is not in his possession and is not procurable by him at the beginning of the suit. No useful purpose can be served by such an order if plaintiff’s allegation that the particulars are contained in the books of defendant and are readily available to him is true. The only effect of an order with which, on the face of the petition, plaintiff is unable to comply is to convert a dilatory exception into a peremptory excepten tending to the dismissal of the suit. When a plaintiff has alleged all that' he can possibly allege, his petition must be met by a peremptory exception and not by a dilatory exception, such as a plea of vagueness. Our conclusion is that the showing made by plaintiff in its several petitions entitle plaintiff to an opportunity to prove its claim. If plaintiff fails to do this it will at least have been given its day in court. If plaintiff has stated a cause of action which he can substantiate by proof, plaintiff should not be deprived of his right of recovery. . For the reasons assigned the judgment appealed from is annulled, the exceptions of vagueness are overruled, and the case is remanded to the district court for fur ther proceedings consistent with the views herein expressed. The costs of this appeal are to be paid by the defendant, all other costs 'to await the final disposition of the case.

JANVIER, Judge.' Francis Edward Phillips, Jr., who at the time was 10 years old, was struck in the eye by a BB shot fired from an air gun by' Frank D’Amico, who, at that time, was .10 or 11 years old and was the son of Robert D’Amico. The gun was not owned by young D’Amico but had been loaned to him by a young friend. The shot which struck young Phillips was not fired directly at him but it deflected or ricocheted from a post which it had struck, and at which it had been aimed. No older persons were present and young D’Amico’s father did not know that his son was using the gun. The father of young Phillips brings this suit on behalf of his son, seeking judgment against the father of young D’Amico. He prays for judgment for $7,520, $7,500 on behalf of the minor for the pain and suffering and for the permanent loss of the use of the left eye and for $20 for doctor’s bills. Plaintiff asserts that liability is placed on defendant by Articles 2317 and 2318 of our Civil Code. These articles read as follows: “2317 (2296) (N 1384). Liability as re-spondeat superior — Things in custody.— We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications. “2318 (2297) (N 1384). Parents and tutors — Liability for acts of minors. — The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to tiiem recourse against those persons. “The same responsibility attaches to the tutors of minors.” Defendant contends that there is no liability in him, maintaining that an air gun is not, in itself, a dangerous instrumentality and that his son was not careless in his use of the gun; that the father of a minor who hurts someone else using an instrumentality from which an object such as a bullet is discharged is liable only if the instrumentality is in itself dangerous under the circumstances ¿n which it is used ■or if it is used carelessly by the child by whom it is discharged. There was judgment in the District ■Court for $750 and both parties have appealed, plaintiff complaining only that the .amount of the award is not adequate, and defendant asserting that the judgment should be entirely reversed and the suit dismissed. There is no dispute over the facts except in two minor unimportant details to which we will later refer. The accident occurred in the afternoon of March 23rd, 1943. Young Phillips had been in the rear yard of his residence, 2619 Eagle Street, and young D’Amico and his friend, Raymond Fitzpatrick, were in the rear yard of the residence of Fitzpatrick’s aunt. This yard was separated from the Phillips’ yard by an intervening property on each side of which there was a high fence. Fitzpatrick and D’Amico were playing with a BB air gun which belonged to Fitzpatrick. There was a small hole in the fence between the Fitzpatrick yard and the intervening property and the two boys were shooting through this hole at a piece of wood which was nailed to the fence which separated the Phillips’ yard from the intervening property. This piece of wood extended above the fence 2% or 3 feet and the fence itself is said by some of the witnesses to have been 7 feet high but by others to have been only about 6 feet high. The gun, in the hands of young D’Amico, was 3 or 4 feet from the ground and th--. piece of wood at which he was shooting was about 8 or 9 feet above the ground. Young Phillips was on the porch of his home when the bullet struck him. He was not in its line of flight. Pie had been in the yard of his house and Fitzpatrick and D’Amico say that he had gone into the house and was struck just as. he came out of the door to the porch. He says that he did not go into the house at all but had been in the yard weeding a Victory garden and was struck just as he went to the porch from the yard. This is one of the disputed points in the evidence. We consider it of no importance at all. Many, if not' most, of the boys in the neighborhood owned similar guns. In fact, young D’Amico was one of the very few boys who did not own one. Young Phillips testified that he himself had one. It is not shown that there is any City Ordinance which prohibits the use of air guns such as this. A second conflict in the testimony arises over the question of whether young Phillips had pointed his gun at D’Amico and Fitzpatrick that afternoon shortly before the occurrence of the accident. They say that he had done so and he testified that he had not. We think it is quite unnecessary to reach a conclusion as to which story is correct. While neither Article 2317 nor Article 2318, both of which are already quoted, contains the word “fault” or the word “negligence”, never, so far as we know, has either been interpreted as creating liability unless there is fault or negligence on the part of someone; either on the part of persons “for whom we are answerable” under Art. 2317, or on the part of “minor or unemancipated children” for whose acts the father or the mother is answerable under Art. 2318. If there is liability in a father for damage caused by his minor son in using an air gun, there must be fault on the part of some one either on the part of the father in permitting his son to use the gun or in the minor in using a dangerous instrumentality under circumstances which render it probable that damage may result, or, if it be an instrumentality which is not in itself dangerous, then in using it negligently or carelessly. If the minor be of such tender age as to be incapable of being guilty of fault or negligence, then our Supreme Court has held that there is no liability in the father unless he could have prevented the act which caused the damage and failed to do so. Johnson v. Butterworth, 180 La. 586, 157 So. 121. In Sutton et al. v. Champagne et al., 141 La. 469, 75 So. 209, it was a “fire arm”, a rifle which caused the death of a little negro boy, and the Supreme Court held that it was negligence for a young boy to use such a dangerous instrumentality under the circumstances shown there, and also that it had been carelessly handled. Recovery was permitted from both the father of the boy who shot the gun and from the parent of the boy who owned it. In Emma Marionneaux, Tutrix v. Forester Brugier, 35 La.Ann. 13, a young boy, 9 years old, was shot by another boy, 13 years of age. The gun contained only powder and wadding but no bullet. The father of the boy who discharged the gun was held liable. The court, in referring to the act of the boy, said: “ * * * It was culpable in the first place, because the boy had no right to fire off his gun on one of the public thoroughfares of the city on New Year’s day, or any other day. * * * ” And the court added that “ * * * his manner of handling the gun and suffering it to go off, adopting the view most favorable to him, in the midst of a crowd of boys, evinced great carelessness.” In James Mullins v. Peter Blaise, 37 La.Ann. 92, a father was held liable because his 6 year old son who, with other children, was firing Roman candles on Christmas night, “ * * * instead of firing in the air, discharged his candle downward in the direction of a number of children who had gathered in the street to witness the sport, * * The court found that in doing so young Blaise committed “a fault of the most culpable character.” From these cases we draw the conclusion that a parent is liable if his minor child, old enough to be guilty of negligence, causes damage by using a dangerous instrumentality under circumstances under which there is reason to believe that damage may result, and that even if the instrumentality is not inherently dangerous, nevertheless there is liability on the part of the parent if the child uses it in a negligent or careless manner. Of course, if the instrumentality is not inherently dangerous and there is no negligence in the manner of its use, then there is no liability even though, because of accident, damage is caused to some one else. As recognizing this rule, we cite Toca v. Rojas, 152 La. 317, 93 So. 108 and Wagner v. Barbin, 12 La.App. 640, 125 So. 766. In the first of these cases, Toca v. Rojas, young Rojas had been fishing. He had a fishing line and pole in his hand and, apparently, was winding the line around the pole by swinging it in the air. He was on a pathway which though “frequently used by pedestrians, * * * was not designed for, nor wa.s it regarded'as, a public thoroughfare.” [152 La. 317, 93 So. 112.] The court held that a fishing rod and line is not inherently dangerous and that under the circumstances there was nothing careless in the manner in which young Rojas had handled it, and that, therefore, there was no liability. In the second of the two cases just above cited, a “sling-shot” was involved. It was being used by a young boy 14 years of age. He had discharged a rock into the air and this rock, in falling, had struck the plaintiff’s daughter in the eye. The court held that there was no liability in the defendant for the reason that “there was not any evidence introduced showing that the ‘slingshot’ was a dangerous weapon” [12 La.App. 640, 125 So. 767] and that the son of the defendant had not been careless in the manner in which he had used the instrument. In spite of the vehement argument of counsel for defendant and in spite of our recollection of our attempts years ago to persuade our parents that air guns are not inherently dangerous instrumentalities, we now find ourselves rather of a view contrary to that which we entertained in those early years, and we cannot be persuaded that air guns are the harmless playthings pictured by counsel for defendant. Surely they are capable of severely injuring anyone who may he struck by a shot discharged from one of them, and certainly they are capable of killing .small birds at a considerable distance. We cannot see that the mere fact that they employ compressed air without the use of powder to propel the projectile takes them out of the category of dangerous instrumentalities and justifies their classification as harmless toys. The fact that no City Ordinance prohibits their use is, we think, of no importance. We agree with what the Supreme Court said in Marionneaux v. Bru-gier that the discharge of the gun “was a wrongful act, regardless of any city ordinance on the subject.” The two boys who were shooting through- a hole in the fence obviously could see very little on the other side. There may have been persons in the intervening yard whom they could not see. They knew, ■or ought to have known, that the bullet might be deflected from the piece of wood at which they were shooting and, if so-, they could not tell whether it would be deflected upwards, downwards or sideways. They knew that young Phillips had been in that second yard and that he or other persons might be in it when this bullet was fired. Under these circumstances, we think that the use of the gun was dangerous; that such guns are dangerous instrumen-talities if they are used in congested areas’ ■or near houses or people, and that the boys who were using it were careless in shooting it through the hole in the fence without being certain that there was no reasonable possibility that the bullets might .strike any one who might be near by. We thus reach the question of whether or not the amount awarded below was adequate and, of course, are immediately struck by the fact that the jury fixed the award at $750. Only one doctor testified in the case. He is an oculist and he stated that though the young boy could still distinguish between light and darkness and could distinguish bodies or large objects passing by, he had lost completely the “industrial use” of the eye. It is somewhat strange that though the boy was first treated at the Charity Hospital, the private oculist who later took charge of him did not examine the record of the hospital to see what had been found there. These records show that the boy was never discharged from the hospital. After receiving several treatments, he was told to return for further treatment in four or five months. The hospital records also show that at that time the eye showed improvement. Of course, if the boy did lose completely the industrial use of the eye, he was entitled to an amount substantially larger than that awarded him by the jury. But it seems very probable that the jury was not at all convinced that the eye was so seriously injured as plaintiff, the boy himself and the oculist think that it was. Several members of the jury put the boy through tests of their own, holding up objects before him, and asking him to identify them, and also asking him to identify colors of clothes and sizes of persons who stood before the jury. In view of the fact that these jurors put the young man through such tests and then found in his favor for only $750, we cannot but conclude that the jury was not satisfied that the boy’s eye was nearly so seriously injured as i.s contended. In Lofton v. Cottingham, La.App., 172 So. 377, 384, $3,500 was allowed for the loss of an eye. The eye was rendered “absolutely useless, and the removal of it was necessary and was effected. * * * but there was no permanent damage other than the loss of the eye.” In each of two other cases the Supreme Court allowed $6,000. These are Starnes et ux. v. Pine Woods Lumber Co., 122 La. 284, 47 So. 607 and Johnson et ux. v. Pickering Land & Timber Co., 132 La. 425, 61 So. 514. In the Starnes case the court, in describing the injury said [122 La. 284, 47 So. 608]: “ * * * The young man was knocked senseless, and did not regain knowledge of his surroundings until the next day. So sudden and violent was the blow that he did not know what had struck him. A long- gash was torn in his .scalp, and a hole large enough to admit the physician’s little finger was knocked through his skull at the back of his. head, and in front of the skull ‘the flesh was all torn off and there was some depression of the bone.’ The right eye was knocked out. The young man was confined to his bed for 21 days, and suffered greatly. At the date of the trial, 18 months later, he was still incapable of manual labor, such as working on his father’s farm and could not, without dizziness apply himself to study. He is a mere unskilled laborer. The eye is permanently gone, and the effect of the hole in the skull will be more or less permanent. if * *» Obviously, the injuries were considerably more serious than those which we are now considering. In the Johnson case we again find injuries substantially more serious than those suffered by young Phillips. The court said [132 La. 425, 61 So. 518]: “* * * one eye is gone, and the orbital cavity so injured as not to allow of the use of an artificial eye to avoid disfigurement; and the remaining eye was still more or less af-. fected at the trial of the suit, 13 months after the accident. The young man’s sufferings were very great. * * * ” As we have already said, were it not for the fact that the jury obviously was of the opinion that the young man had not completely lost the “industrial use” of the eye, we feel that a very substantial increase would have been justified. Even in spite of the fact that the jurors apparently were not satisfied that the eye is as seriously injured as plaintiff contends, we think that the award .should be increased though not to the figure which might be justified if there was no doubt concerning the extent of the injury to the vision of the young man. It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is amended by the increase of the amount awarded therein to $2,500, and that as thus amended, it be affirmed. Amended and affirmed.

PER CURIAM. In a most excellent brief submitted in support of an application for rehearing, counsel for plaintiff-appellee has presented a convincing argument in support of the contention that the question of whether the contract involved is void bcause of uncertainty was properly before us and should have been considered by us and that we should have held the contract void for uncertainty and permitted plaintiff to recover. We have been persuaded that we were in error in concluding that the contention was not properly before us. However, we now call attention to the fact that alternatively we did consider and discuss the contention, and did hold that the uncertainties which counsel attempted to point out to us did not, in fact, exist. We feel that we could add nothing to this discussion, and having given thorough consideration to the question, have not been persuaded that we were in error in the conclusion reached. Therefore, for the reasons given in our original opinion the rehearing applied for is refused.

HARDY, Judge. The facts involved in this case are set out in the following stipulation, upon which the case was tried: “It is agreed that this cause shall be tried on the following statement of facts, which is agreed to by counsel for both plaintiff and defendant, to-wit: “Oscar Rainwater was employed by the Trustees of The Chicago, Rock Island and Pacific Railway Company on or about July 20, 1943 as a member of an extra gang of laborers who, under the direction of the Section Foreman at Winnfield, Winn Parish, La., were engaged in hauling posts from the nearby woods and loading them on railroad cars for transportation from a point near Winnfield in Winn Parish, Louisiana. “The posts belonged to defendant and were intended for use as piling and were to be incorporated into and used in repairing defendants’ road bed at various points in its system which is operated as a railroad engaged in interstate commerce serving several states. “On the day above mentioned plaintiff’s right eye was accidentally- injured while loading some of the piling into cars. It is not known what the destination was of the particular car being loaded at the time of the injury, but plaintiff’s duties at the time of his injury required him, with the other members of his gang, to load six railroad cars, three of which were actually shipped to destinations in Louisiana. and three of which were actually shipped to destinations outside of the State of Louisiana. “If plaintiff is entitled to recover under the Workmen’s Compensation Laws of the State of Louisiana he is entitled to receive compensation payments of $14.35 per week not to exceed 50 weeks, having lost one-half the use of one eye as a result of said injury; otherwise plaintiff is not entitled to recover at all.” The defense is that at the time of the injury plaintiff was engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, and, for this reason, was not entitled to recover under the Louisiana statute. This question of law is the sole and only point involved and the decision of the case must rest upon the determination thereof. There was judgment below in favor of plaintiff, the Judge of the District Court being of the opinion that plaintiff was not engaged in interstate commerce within the meaning, intent and purpose of the Federal statute. From this judgment defendant appeals. In view of the amendment, effective August 11, 1939, of the applicable section of the Federal Employers’ Liability Act, it is obvious that the jurisprudence on this particular point prior thereto is not applicable. For this feason we do not feel that the Louisiana cases of Francis v. Louisiana & A. R. Co., 187 La. 975, 175 So. 638, 640, and Bigler v. Texas & N. O. R. Co., La.App., 2 So.2d 259, which involve injuries occurring prior to the effective date of the amendment, are applicable. Both of these cases were cited by the learned Judge of the District Court in the reasons assigned for his judgment. The case of Lawrence v. Rutland R. Co., 112 Vt. 523, 28 A.2d 488, 143 A.L.R. 476, was also cited in support of the judgment rendered. This case did involve an injury suffered after the effective date of the amendment, but, in our opinion, involved a decisive point which is not present in the case before us. In the Lawrence case the plaintiff was injured while operating a motor weeder on the right-of-way of the defendant railway company, by means of which operation the right-of-way was being cleared of noxious weeds. It appears that this operation was undertaken in compliance with a requirement of the laws of the State of Vermont. The opinion of the Court stated that the purpose of the weeding vjas the carrying out of the statute and not in furtherance of interstate commerce. Therefore, it is plain that the injury occurred in the course of acts which had no hearing whatsoever upon interstate commerce, but which were being performed under the compulsion of police regulations of the State of Vermont. In order to properly understand the questions before us, it is desirable to set out the applicable provision of the Federal Act as written prior to 1939, together with the amendment. Section 51 of Title 45, U.S.C.A., prior to 1939, read as follows: “Section 51. Liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence. Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. (Apr. 22, 1908, c. 149, § 1, 35 Stat. 65.)” Section 51 of Title 45 U.S.C.A., as amended August 11, 1939, reads: “§ 51. Liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence; definition of employees. “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act and of an Act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases’ (approved April 22, 1908), as the same has been or may hereafter be amended. [As amended] Aug. 11, 1939, c. 685, § 1, 53 Stat. 1404.” In the case of Ermin v. Pennsylvania R. Co., 36 F.Supp. 936, the district Judge of the Federal District Court for the Eastern District of New York in his opinion, after commenting upon the discussions in Congress with reference to the amendment in question, reached the conclusion that it was the intent of the Congress to include within the scope of the Federal Employers’ Liability Act all employees, even those performing intrastate services whose employment met the requirements of the Act. In the case in question the plaintiff had been injured while engaged in the operation of switching “dead” engines from Altoona, Pa., to Hollidaysburg, Pa., to await repair orders. Notwithstanding the fact that this movement was intrastate, it was shown that upon completion of repairs the equipment in question was to be used in both interstate and intrastate transportation. Plaintiff was held to come within the purview of the amendment of the Federal Act. In Edwards v. Baltimore & O. R. Co., 131 F.2d 366, 369, the Circuit Court of Ap peal of the Seventh Circuit affirmed a judgment in favor of plaintiff, a mechanic’s helper, who was injured while attempting to repair the stoker of a locomotive which was out of service for purpose of repair in defendant’s shops. In its opinion the Court stated: “Despite any question as to whether plaintiff might have recovered under the original act * * * it is clear that he is within the scope of the amendment. 'Under the original statute experience demonstrated continued difficulty in ascertaining when the work of an employee was part of interstate commerce. The amendment, much wider in scope, was inspired by a desire to avoid such confusion. Congress’ intent to include any employee who performs services which in any way further or affect interstate commerce is clear. Ermin v. Pennsylvania R. [Co.], D.C.N.Y., 36 F.Supp. 936; Southern Pac. Co. v. Industrial Acc. Comm., Cal.App., 113 P.2d 768, 770, affirmed by California Supreme Court in 19 Cal.2d 283, 120 P.2d 888; Piggue v. Baldwin, 154 Kan. 708, 121 P.2d 183; Louisville & N. Co. v. Potts [178 Tenn. 425], 158 S.W.2d 729. Inasmuch as this locomotive was used in interstate commerce and was destined to resume such service as soon as repaired, plaintiff, engaged in repairing it and fitting it for further commerce, thereby furthered and substantially affected interstate commerce within the meaning of the law.” In the case before us the piling, which plaintiff was engaged in loading on the cars of the defendant railway at the time of the accident, was destined for use in repairing defendant’s roadway at various points on its line. Certainly, maintenance and repair of road beds and rails are necessary in furtherance of interstate commerce. Materials necessary to such repairs must be loaded before they can be transported to the points at which they are to be used. Even proof that the particular poles loaded on a particular car were designed for an intrastate destination, in our opinion, would not change the conclusion that such materials were to be used in furtherance of interstate commerce, and that all acts in connection with the operations of loading and transportation, therefore, directly, closely and substantially affected such commerce. We can come to no other conclusion than that plaintiff at the time of the accident was within the scope of the amendment to the Federal Employers’ Liability Act. We are not unaware of the fact that this decision may work a serious hardship upon this plaintiff, in that it may ultimately deprive him of compensation for the injury received. However, as has been observed before, it is not the province of the Courts to legislate. We are convinced that the Congress in the adoption of the amendment of 1939 was actuated by the desire to extend the protection of the Act to large classes of employees who were denied recovery by reason of hair-splitting distinctions as to the construction of interstate commerce employment under the provisions of the original act. If, in attempting to remedy one defect, while motivated by sincere interest in the welfare of employees, the Congress has inadvertently worked hardships upon certain employees under certain circumstances, the point should be called to its attention in order that such inequities might be corrected by future legislation. Since, under present laws, an injured employee has no alternative, no right of election, recovery must be claimed under the provisions, and only under the provisions, of the Federal Statute. For this reason, we are prevented from granting relief under the provisions of the Louisiana Statute, to which relief this plaintiff undoubtedly would be entitled were it not for the fact that, in our opinion, he must be regarded as having sustained injury while engaged in furtherance of interstate commerce. For the reasons assigned, the judgment appealed from is reversed and set aside, and the demands of plaintiff are rejected at his cost.

HIGGINS, Justice. The plaintiff instituted this suit against the Teche Lines, Inc., a carrier of passengers for hire, Jack Gorum, the owner of the Arkansas Traveler (a truck with a trailer) and his liability insurer in solido, to recover damages for personal injuries, medical expenses, loss of salary, etc., said to have been sustained and incurred as a result of a head on collision between the omnibus on which he was a passenger and the truck, allegedly caused by the joint and concurrent negligence of the drivers of both vehicles. The defendants, in separate answers, admitted the accident but denied that the plaintiff was injured, and averred that their respective drivers were free from fault. There was judgment in favor of the plaintiff and against the defendants, in solido, in the sum of $5,000, the insurance company’s liability, under its policy, being limited to that amount, and judgment against Gorum and the Teche Lines, Inc., in solido, for the additional sum of $6,164, plus interest, expert’s fees and costs of court. The Teche Lines appealed suspensively, Gorum appealed devolutively, and the Casualty Company paid the judgment to the extent of $5,000. The Court of Appeal for the Parish of Orleans annulled the judgment insofar as the Bus Company was concerned, on the ground that this Court, in Teche Lines, Inc., v. Jack Gorum, 202 La. 993, 13 So.2d 291, and the Court of Appeal of the First Circuit in Leforte v. Gorum et al., 7 So.2d 733, held upon the same record now before us, that the driver of the bus was entirely free from negligence or fault in causing the collision. The judgment insofar as Gorum was concerned was affirmed. 15 So.2d 637. The plaintiff applied to this Court for a writ of certiorari or review, calling our attention to the fact that his alert attorney had appeared before us in Teche Lines, Inc., v. Gorum, supra, when .the case was called for argument here and asked for the privilege of being heard as an amicus curiae, due to the fact that the present proceeding was then pending before the Court of Appeal, Parish of Orleans, on the same record. The request was denied, counsel being assured that since the Teche Lines case against Gorum involved only the rule of ordinary care, the decision therein would not be binding in the instant one, where the law is different, requiring the carrier to exercise the highest degree of care to prevent injury to its passengers'. Anything we stated in that case that might be construed as determining the issue involved in this one necessarily must be treated as obiter dictum, because the present suit was not before us at that time. We granted the writ and the matter is now here for review. There is no dispute or doubt as to the rules of law applicable to this case. They are correctly stated in the case of Oppenheim v. Toye Bros. Yellow Cab Co., La.App., 7 So.2d 420, 421, as follows: “It is well established that a carrier of passengers is not an insurer, but it is required to exercise the highest degree of care, vigilance and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. In truth, in many cases, the fact of injury to a passenger gives rise to the presumption that the carrier was negligent, ‘since, under ordinary conditions,. with proper direction and control, taxicabs do not collide with other vehicles. Hamburger v. Katz et al., 10 La.App. 215, 217, 120 So. 391.’ Dawson v. Toye Bros. Yellow Cab Co., Inc., et al., 15 La.App. 326, 131 So. 716. ***** “It is also well established in our jurisprudence that, where a passenger is injured in an accident and has failed to reach his destination in safety, the burden is on the carrier to prove itself free from fault, but it is not required to show how and why the passenger was injured in order to bar recovery. Cusimano v. New Orleans Public Service, Inc., 170 La. 95, 127 So. 376; Dillon v. New Orleans Public Service, Inc., La.App., 170 So. 406. To the same effect see Bynum v. City of Monroe, La.App., 171 So. 116; Wark v. New Orleans Public Service Inc., La.App., 168 So. 797; Hughes v. Baton Rouge Electric Company, La.App., 188 So. 473.” On September 12, 1940, at 1:30 o’clock p. m., the Teche passenger omnibus weighing 22,000 pounds and being 32 feet in length, with its full capacity of passengers, was proceeding on the Airline Highway from Baton Rouge to New Orleans. On the same road a yellow Highway truck with a red flag towards the rear of it and pulling a grass cutting machine was going in the direction of Baton Rouge. The Levy Bros, truck and trailer, having an overall length of 25 feet was following the Highway truck. To the rear of this vehicle was the 22 foot truck and trailer of Jack Gorum, the Arkansas Traveler, loaded with 14,500 pounds of sugar. The Highway equipment was moving forward at the rate of three or four miles per hour and was in charge of two operators. The two trucks to the rear of it had been proceeding at the rate of about twenty-five or thirty miles per hour, 200 or 300 feet apart, for fourteen miles prior to arriving at the point four miles south of Gonzales. In this vicinity the highway is straight for a considerable distance. It consists of an 18 foot concrete strip with a black line down the center and a 25 foot wide earth shoulder on the side of the concrete strip where the bus was travelling. On the opposite side of the concrete, where the Highway equipment and the other two vehicles were approaching, the earth shoulder of the road is several feet in width. Adjacent to each of the shoulders of the road were canals. For a long distance in both directions from the scene of the rccident there was nothing but a wooded section. The weather was clear and dry and there was nothing to intercept the views of the drivers of the respective machines, except the vehicles themselves. The operator of the bus observed the approaching Highway truck when they were nearly a mile apart and when he reached a point about 900 feet from it, he reduced the speed of the bus from approximately forty or forty-five miles an hour to about thirty or thirty-five miles per hour because the Levy truck at that time was also approaching the Highway truck from the rear. This action was taken by the bus operator as a precaution or safety measure in anticipation of the possibility that the driver of the Levy truck would attempt to go around the Highway truck and if he did so, would thereby block the path of the oncoming bus. The driver of the Levy truck decided he did not have time to negotiate the passage and after giving the proper signal, slowed the speed of his truck so as to remain on his right side of the concrete road and behind the Highway truck. In the meantime, the operator of the Arkansas Traveler admittedly neglected to keep a proper lookout and failed to observe that the Levy truck on his side of the road had reduced its rate of speed to conform to that of the preceding slow moving Highway truck. When he saw how near he was to .the Levy trailer, he concluded, after applying his brakes that due to the heavy load he would be unable to stop in time to avoid striking the rear of the trailer in front of him. Gorum’s employee did not notice the Highway truck and was unaware of the approaching bus from the opposite direction, his view being intercepted at that time because he was too close to the rear of the Levy trailer, which was covered with tarpaulin. When he was about 20. feet from the back of the Levy truck and going about 15 miles per hour, he swerved his wheels sharply to the left in order to avoid striking the Levy truck and to go around it. As he pulled over he discovered the presence of the bus, which at that time had passed the Highway equipment and had reached a position on its right side of the road where the front of the bus was adjacent to the radiator of the Levy truck. Gorum’s operator instantly decided to cross the 9 foot concrete strip to his left and run upon the 25 foot shoulder of the road, in order to avoid a head on collision with the bus and fully accelerated his motor to accomplish this purpose. The bus driver quickly guided the bus to his right and off to the concrete on to the 25 foot shoulder of the road, thinking that the truck driver would remain on the concrete strip and thereby pass him. When the bus driver saw that the Arkansas Traveler completely blocked his path he instantly applied his brakes and succeeded in reducing the speed of the bus from approximately 25 or 30 miles per hour to about 15 or 18 miles per hour at the time the front end of .the bus struck the right front side of the trailer. Both vehicles were practically off of the concrete strip at the time they stopped. After the accident, the driver of the Arkansas Traveler admitted that he had no intentions of going around the Levy truck until he realized that he had to do so in order to avoid running into the rear of it and that the brakes on his truck were not properly operating. The plaintiff seeks to fasten liability on the carrier, contending that its driver failed to exercise the highest degree of care required under the facts and circumstances of this case, in the following respects: (1) In not placing the bus under proper control by so reducing its speed that it could immediately stop when it became apparent that he was approaching a “block” in the road; (2) in not sounding his horn as he came near the “block” in the road; and (3) in not discovering the presence of the trailer until it came out from behind the Levy truck. Rule 7, paragraphs (a), (b) and (c) of section 3, Act 21 of 1932, regulating traffic on public roads, read: “The driver of any vehicle over-taking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle. “The driver of an overtaking vehicle shall give audible and sufficient warning of his intentions before overtaking, passing or attempting to pass a vehicle proceeding in the same direction. “The driver of a vehicle shall not drive to the left side of the center line of the highway in overtaking and passing another vehicle traveling in the same direction, unless such left side is clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety; provided, that whenever an accident occurs under such circumstances, the responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking or passing.” In Oppenheim v. Toye Bros. Yellow Cab Co. et al., supra, the passenger of the taxicab sued the company to recover damages for personal injuries sustained, and obtained judgment in the lower court. It appears that the taxicab driver stopped his cab at the corner of Carrollton and Claiborne Avenues in obedience to the red traffic light. When the semaphore signal showed “green” the street cars and other' traffic which had stopped, started and there suddenly appeared a Plymouth automobile being driven up Claiborne Avenue against the red light and across the path of the moving traffic at a rate of speed of about 45 miles an hour, in violation of the New Orleans traffic ordinance. The chauffeur of the taxicab stopped suddenly but the right running board and rear fender of the Plymouth car struck the front bumper of the taxicab. The Appellate Court annulled the judgment of the district court holding that the taxicab driver was entirely free from fault in causing the accident and that the emergency was created exclusively by the recklessness and unlawful action of the Plymouth driver and, therefore, the carrier was not liable. This Court granted a writ in the case with reference to a certain legal question and upon reviewing the testimony concluded that the record showed that * * the taxicab driver exercised the highest degree of care in endeavoring to avoid the impending disaster brought about by the gross negligence of Edyburn [the operator of the Plymouth].” 203 La. 1067, 14 So.2d 854. (Brackets ours.) In Gager v. Teche Transfer Co. et al., La.App., 153 So. 69, 70, an injured passen ger sued the carrier and recovered in the trial court. It was proven that the bus was in the act of passing a truck going in the opposite direction when the driver of an automobile in the rear of the truck veered to his left for the purpose of passing it and thereby came into collision with the bus. As the two vehicles collided, the bus went off the road and partly in a canal. The bus was being driven at a rate of speed of forty miles an hour and the truck and the automobile were raising considerable dust and, therefore, it was contended that the bus driver should have proceeded much slower. In annulling the judgment of the district court, the Court of Appeal said: “ * * * The speed of the omnibus was not excessive and the omnibus driver could not foresee that Rev. Nicol would suddenly quit his place in the rear of the truck and endeavor to pass it as it was passing the omnibus, to do which required space for the omnibus, the truck, and automobile in the road at the same time, and the space necessary to that end was obviously lacking. The omnibus driver had no reason to suppose or suspect such a movement on the part of the automobile driver. His act was one of those things that no one would ordinarily look forward to or expect to take place.” In the case of Gehm v. Yellow Taxi Corporation et al., 245 App.Div. 816, 281 N.Y.S. 320, the court rejected the claim of a passenger against the carrier holding that the chauffeur was blameless. The taxicab was going in a westerly direction and the other car in an easterly direction. The approaching car turned to the left in order to pass a truck and thus' collided with the taxicab. It is well settled that the driver of a motor vehicle is not negligent in failing to anticipate that another car operator, who is lawfully and prudently driving, will suddenly disregard the traffic laws and become reckless when there is nothing in his conduct to indicate he will do so. Benton v. Griffith, La.App., 184 So. 371; Rohl v. United Elec. Rys. Co., 50 R.I. 478, 149 A. 375; Gritsch v. Pickwick Stage System, 131 Cal.App. 774, 22 P.2d 554. Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 2, Perm.Ed., § 919, page 60. In the light of the foregoing authorities and considering the issues raised by the plaintiff, we observe that the carrier’s side of the highway was not blocked nor was the other side, the traffic there continuing forward at a slow rate of speed. The operators of the highway and the Levy trucks, by their actions and in compliance with the law, showed the bus driver they were remaining on their side of the road. At that time, Gorum’s employee was also driving his truck on its right side of the road at a moderate rate of speed. There was nothing in the conduct of any one of the drivers to indicate that either of them was preparing or expecting to drive to his left or into the path of the oncoming bus. The bus driver had a right to assume that they would remain on their side of the road in obedience to' the traffic law. It was impossible to discern that one of them would suddenly and without any warning whatsoever flagrantly violate the traffic law by recklessly dashing out in front of the bus. A carrier of passengers is liable for the slightest negligence which contributes to an accident that causes injury to a passenger 'but it is not an insurer of the passenger’s safety against negligent acts of third parties and their palpable disregard of the law. The highest degree of care doctrine is not synonymous with a guarantee of the passenger’s safety against any possible injury. Until there is some indication, which would require a vigilant, competent, and experienced driver exercising the highest degree of care to observe the contemplated reckless and unlawful act of another, it is not negligence on his part to fail to do so. To hold otherwise would require the operator of a passenger vehicle to foresee every unexpected and sudden contingency. To place such an obligation on him would require him to speculate with mere possibilities and pure conjecture. As there was nothing whatsoever to indicate to the driver of the bus that it would not be perfectly safe to proceed on his right hand side of the road, which was unobstructed, he was neither required by law nor the exercise of the highest degree of care to bring his bus to such a low rate of speed so as to be able to stop instantly, if someone suddenly drove out in front of him in violation of the traffic law. The testimony of the driver of the Arkansas Traveler conclusively shows that he had no intention of going around the Levy truck and remained on his side of the road until he was in close proximity to it. It was at the last moment when he realized that he had gotten so close to the rear end of the trailer that he would be unable to avoid striking- it, that he, on the spur of the moment, made up his mind to pull to the left. It was at that same moment that he also realized that his brakes were not operating properly. If Gorum’s driver himself did not know that he was going to turn to the left until compelled to do so by a situation caused entirely by his own recklessness, then how could it possibly be said that the driver of the bus should have anticipated such conduct on his part. There is no statutory requirement that the driver of vehicles approaching each other from opposite directions on their respective right sides of the road shall sound their horns as a warning to each other. As it was daylight and a clear day and the bus was clearly visible, there was no reason to anticipate that the operator of a vehicle going in the opposite direction had failed to keep a proper lookout and observe the presence of the bus. The fail-' ure to sound the horn of the bus under the circumstances of this case is too remote to be considered as a proximate or contributing cause of the accident. It is argued that the bus driver was guilty of negligence in not observing the fact that the Arkansas Traveler was running closely behind the Levy truck. This statement is predicated on the testimony of a passenger, who was sitting three seats to the rear of the bus driver and who stated that he saw the Arkansas Traveler when they were about two and a half blocks from it. We agree that the bus driver, maintaining the highest type of vigilance, should have seen the Arkansas Traveler, if a passenger was able to see it when he was not under any duty to keep a lookout. The law is that a driver of a motor vehicle is held to have seen that which proper vigilance would have revealed to him. ‘ However, if the driver of the bus had actually seen the Arkansas Traveler, he would have known that it was traveling on its right side of the road at a rate of speed of about twenty or twenty-five miles an hour and that there was nothing in the manner in which the vehicle was being driven to indicate -that it would suddenly and unexpectedly turn to its left and across the path of the approaching bus. The theory that the driver of the bus had sufficient opportunity, after the traveler made its appearance on the wrong side of the road, to avoid the collision is not advanced by the learned counsel for the plaintiff. It seems to be conceded that the operator of the bus did everything possible, after he became aware of the presence of the Arkansas Traveler in his path, to prevent the accident. Our review of the evidence convinces us that he exercised the highest degree of care and skill in his attempt to avoid the collision but was unable to do so, due to the close proximity of the vehicles at that moment and the suddenness of the emergency. It is our opinion that the sole and proximate cause of the accident was the gross negligence of and the flagrant disregard of the traffic law by the operator of the Arkansas Traveler and that the bus driver was entirely free from fault. For the reasons assigned, the judgment of the Court of Appeal is affirmed; relator to pay the costs of this Court and appellant, Teche Lines, Inc., to be relieved of the payment of all costs in the lower courts. O’NIELL, C. J., does not take part.

TALIAFERRO, Judge. Plaintiff seeks to foreclose three paving liens against Lots 1, 14 and 16, respectively, of the Selber Subdivision, owned by defendant, in the City of Shreveport, Louisiana. The liens allegedly resulted from assessments against the lots of two-thirds of the cost of laying concrete pavement on a strip of land forming part of Southern Avenue between Lot 16 on the east and Lots 1 and 14 on the west. There were three different suits to enforce the liens. They were consolidated for trial in the lower court and have been consolidated here. In limine, defendant filed in each case an exception of vagueness and motion for bill of particulars in which he sought to have plaintiff provide facts and information, not disclosed in the petitions, inter alia, as to when and how the strip of land between defendant’s lots was dedicated as a street, and the manner of plaintiff’s acquisition of it or right-of-way thereover. The exception and motion were sustained in part, but were overruled as to the facts about the dedication. The District Judge who passed on the exception and motion did not preside at the trial on the merits. Defendant’s counsel, in brief, states that the judge reached the conclusion that, as the land after its acquisition by the City, became public property, no dedication of any part of it for street purposes, express or implied, was necessary. During trial plaintiff offered evidence to show that the land was acquired for street purposes and to establish a dedication impliedly. Defendant objected to the admissibility of this evidence on the ground that the petitions did not contain any allegation of dedication. The objection was overruled and the proffered evidence admitted. This evidence, the trial judge expressly held, did establish an implied dedication. It follows from the court’s ruling that it was of the opinion that a dedication of the land was necessary to the validity of the assessments against defendant’s property. We concur in this conclusion. In this court, defendant insists that said rulings were erroneous and prejudicial to his rights, and that the case should be remanded for further proceedings. He does not specifically state, however, to what extent or in what respect the rulings impair his rights or prejudice his interest. If defendant’s position should. be sustained, we would have to remand the case to allow plaintiff to amend and defendant to further answer, if he desired to do so, and a new trial would be had. To warrant this action, we would necessarily have to hold that the rulings worked prejudice to defendant’s rights; that he had been deprived of his day in court, and that he had exhausted all means at his command to protect his rights in the lower court. It is unlikely that any additional evidence would or could be adduced touching the question of dedication. Defendant does not contend to the contrary. We do not think the rulings complained of, if erroneous, were prejudicial to or deprived defendant of any substantial right. He did not plead surprise nor ask for a continuance of the trial when the objected to evidence was tendered. Had he pleaded surprise and moved for a continuance on that ground, doubtless the trial judge would have granted him delay. He does not now claim to have been surprised by the evidence in question. Mr. McMahon, Professor of Civil Law at the Louisiana State University, commenting on ‘the exception of vagueness, pages 328, 329 of his work on Louisiana Practice, says: “Effect of judgment overruling exception is to force defendant to answer. Theoretically, defendant should be permitted to complain of the vagueness of plaintiff’s allegations on appeal, provided that proper reservation of rights under the overruled exception has been made. However, no case was found where the judgment of a trial court overruling this excep tion .was reversed on appeal and the case remanded. In at least one case the Supreme Court has avoided the necessity of passing on the question by holding that defendant failed to bring up the question for review on appeal by failing to reserve his rights under the exception when overruled, and by failing to plead surprise when evidence was adduced. Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann.Cas.1912A, 976, 1910. It is submitted that the proper rule should be that if defendant is not surprised by the evidence adduced, and has failed to ask for a continuance because of such surprise, the error (if one be committed) is not prejudicial and therefore the court should not remand the case for á new trial. * * * ” Anent this question, the article of Dr. Paul M. Hebert, 6 Tulane Law Review, pages 169, 177 and 178, entitled “Problem of Reversible Error in Louisiana” is interesting and enlightening. The suits were resisted by defendant on two grounds, viz.: (1) That at time of and prior to paving Southern Avenue between the lots, no part of the strip of land had been in any manner dedicated as a street; and that since the paving was laid, none of the unused portions of the land between said lots has been dedicated; and (2) That the lots do not abut ■ the improved or paved portion of the avenue. For these reasons, it is contended, the assessments are illegal. Defendant reconvened and sued for the value of a triangular shaped part of Lot 16 appropriated by plaintiff and paved, and for depreciation in value of the remaining part of the lot due to the appropriation. The paving involved herein was done under the provisions of Act No. 10 of 1896, as amended. The legality of the proceedings had by the City Council precedent to and culminating in the assessments attacked, save as is involved in the enumerated defenses, is not questioned. Plaintiff was awarded judgment in each case as prayed for by it. Defendant was given judgment for Fifty ($50.00) Dollars on his reconventional demand. He appealed and complains of the judgments in all respects. The facts of the cases, record and otherwise, are well stated by the trial judge in written reasons for judgment. We quote therefrom as follows, to-wit: “The paving project out of which these assessments arose is the paving project out of which arose the assessments involved in Ford et al. v. City of Shreveport, 204 La. 618, 16 So.2d 127. As stated in the Supreme Court’s opinion in that case, the City of Shreveport, in March of 1941, inaugurated proceedings to pave Southern Avenue from St. Vincent’s Avenue to 59th Street, a distance of approximately 1.66 miles. * * * “At the time of the inauguration of this paving project, the City already owned the necessary rights of way, except for the strip involved in the case at bar and the strip involved in the Ford et al. case, supra. It was, therefore, necessary, in order to complete the paving project as contemplated and authorized, to acquire these two strips. “Shreveport Railways Company was interested in the project in that it had for years operated its street cars on steel rails along the route of Southern Avenue, including the 1.66 miles proposed to be paved, and it contemplated converting to trackless trolleys which, after the paving was completed, it did, and it is now operating its trackless trolley system over the whole of Southern Avenue and the public is using the same as a street. “The Shreveport Railways Company owned a 60-foot-wide strip of ground, in fee, running through Selber Subdivision, on the West side of which strip lay Lots 1 and 14 and on the East side of which lay Lot 16. This 60-foot-wide strip was a missing link in the route of Southern Avenue as authorized to be paved, just as the 60-foot-wide strip involved in the Ford case was the only other missing link in said project. “Accordingly, after the paving was authorized bjr Ordinance No. 23 of May 27, 1941, the City proceeded to acquire these missing links. In the case at bar the City, on June 10, 1941, secured a deed from Shreveport -Railways Company conveying the fee title to the 60-foot-wide strip owned by said Company and running through Sel-ber Subdivision. This deed recites a cash consideration of $350.00. Mr. J. H. Jackson, City Attorney, testified that, although the City paid that amount to the Company, the Company later reimbursed the City in that amount so that actually the City paid nothing. Similarly, in the Ford case the 64-foot-wide strip was acquired on June 12, 1941, from Mrs. Octavia Hunter, but Shreveport Railways Company provided the $2,000 paid therefor. * * *” Plaintiff did not formally dedicate to street purposes any part of the parcel of land acquired by it from the Shreveport Railways Company. It is obvious, however, that in consummating the transfer of the land to the City it and its vendor were motivated by the same desire, which was that the City should own the land in order to complete the paving program on the avenue and thereby make available to the public and the Shreveport Railways Company a splendid artery of travel. The City had no other need for the land than to constitute it a part of the avenue and to lay paving .thereupon. The land, therefore, took on the character of public property and its use became common to all persons. R.C.C. 453, 454-458. In keeping with the purpose for which the' land was acquired, pavement 37 feet wide has been laid its entire length north and south, and the public, since that was done, has used and is now using the avenue its entire length. That part of the land not actually covered by the pavement is not improved. The pavement was laid without objection or protest from defendant or anyone else. That there was an implied dedication of the whole of the strip of land for street purposes is beyond question. Such a dedication is well recognized in this state. It is, however, of common-law origin. Ford et al. v. City of Shreveport, 204 La. 618, 16 So.2d 127. Concerning the dedication, the trial judge said: “The laying of the pavement on 37 feet is not the only circumstance to be considered in ascertaining the intent to dedicate or the extent of the dedication. The evidence abundantly establishes, and it is likewise a matter of common knowledge, that the actual pavement seldom ever occupies the entire width of a street. The history of this improvement, the location of the strip jn question in relation to the street paving project, and the circumstances surrounding its acquisition, etc. are all relevant facts to be considered. When so considered, it is our opinion that the facts here clearly establish an implied dedication of the entire 60-foot-wide strip as a public street and a part of Southern Avenue. Both by intent and destination the City and its vendee (vendor) have irrevocably so dedicated The Ford case, supra, specifically holds that regardless of the ownership of land within the limits of a street on which pavement is lawfully laid by a municipality, without protest from the owner, an implied dedication results therefrom and the acceptance thereof by its use by the public, and assessments against the abutting property for costs of the improvement are proper and legal. A fortiori should this be true when the land embraced between the lines of the street is owned by the municipality and, as in this case, was acquired solely for street purposes. Act No. 10 of 1896, after prescribing the procedure to be followed as a condition precedent to paving or otherwise improving streets and alleys of a municipality, says: “ * * * an¿ after the contract has been awarded the council shall provide by ordinance for an assessment for all real estate abutting the street or alley * * Defendant earnestly contends that as there are intervening areas of the sixty-foot strip owned by the City between the lots and the slab of paving, the lots do not abut the street as required by the quoted part of the Act, an indispensable condition to the validity of an assessment for any part of the cost of paving. These unused and unimproved portions of the sixty-foot strip are owned by the City in its governmental capacity and may not be made subject to private ownership. The areas which adjoin Lots 1 and 14 are wide enough to accommodate a sidewalk of customary width and also to provide an intervening neutral ground. The time will likely come when the City’s develppment southward will warrant the laying of sidewalks on these presently unused areas. It is here pertinent to determine, within the intendment of the Act under which the paving was done, what is a street? What does it embrace? Defendant refers us to the definition of a street stated in the decision of the Supreme Court in State ex rel. City of New Orleans v. New Orleans, City & Lake Railroad Company, 42 La. Ann. 550-555, 7 So. 606, 607, which is as follows: “A street is a space dedicated to public use, for the passage and circulation thereon of ordinary driven vehicles or animals, in cities or towns.” But a close study of the opinion in that case convinces us that this definition was adopted strictly to fit and apply to the contract therein sought to be enforced. It chnnot have general application because it excludes as integral parts of a street, sidewalks and neutral grounds adjacent thereto. In the case of Morton v. Sullivan, Ky., 96 S.W. 807, the court defined a street as follows, to-wit: “The word ‘street,’ in an ordinance ordering a street to be improved at the cost of abutting property, means the entire width of the public way, and includes the sidewalk.” And, in the case of Marion Trust Company v. City of Indianapolis et al., 37 Ind.App. 672, 75 N.E. 834, 836, referring to what constitutes a street, the court said: “While the term ‘street’ in ordinary legal signification includes all parts of the way—■ the roadway, the gutters, and the sidewalk ■—yet the term ‘sidewalk’ has come to be generally used in this country for the purpose of designating a footway for passengers at the side of a street or road. Elliott on Roads and Streets, § 20; Challiss v. Parker, 11 Kan. 384. In that sense the Legislature is presumed to have used it.” These two cases, in our opinion, correctly reflect the meaning of the word “street” when used in statutes such as Act No. 10 of 1896. Many other cases to same effect could be cited. If streets embrace sidewalks, of necessity they embrace the land upon which the sidewalks rest. It is shown, in fact it is common knowledge, that practically all streets have sidewalks and in residential sections there is also generally provided a neutral ground between the sidewalk and the curb of the paving. • When defendant subdivided into lots the land he owned on both sides of the sixty-foot strip discussed, he adopted as the west boundary of Lot 16 the east boundary of the strip and adopted the west boundary of the strip as the east boundary of Lots 1 and 14. Surely, these lots abut the street which now embraces all of the sixty-foot strip. In cases of this character to abut means that there intervenes no other land that may be put to private use. The center of the paving, for engineering reasons, does not follow the center of the sixty-foot strip. To attain satisfactory alignment the east line of the pavement crossed the south line of Lot 16, 8.06 feet from its southwest corner, and traversed the lot northerly 123.81 feet to where it crosses the lot’s west line. Therefore, a triangle from the lot’s western side, with an area of 489 square feet was appropriated by the City and incorporated into the street. It is contended by defendant alternatively that since the triangle of land was appropriated by plaintiff and paved without his consent and without judicial condemnation thereof, the assessment against the lot for the cost of the paving along the 123.81 feet line is illegal. Several cases from common-law jurisdiction, which support this position, are cited. While, as before stated, implied dedication of property for public use is of common-law origin, yet by recognizing the doctrine in this state all of the technical rules and jurisprudence of other jurisdictions pertinent thereto were not necessarily adopted here. As we view, the situation pertaining to this small triangle of land, when it was appropriated by possession and the laying of pavement thereon, it automatically became a part of the street and a servitude of passage, or easement thereover in favor of the City and the public came into existence as fully as if it had been acquired by contract or expropriation pro'ceedings. The southerly end of the lot, for a distance of 123.81 feet, abuts the pavement; a common imaginary line separates them. The case of Jacob v. Mayor and Board of Trustees of City of New Iberia, 163 La. 416, 112 So. 30, cited and relied upon by defendant, is not in point for the reason, as said by the court—“a large portion of ground, triangular in shape (owned by the City), was left between the paved roadway and the property of the plaintiff.” In view of this large intervening parcel of land, it was held that plaintiff’s property did not abut the paved street or roadway. The assessment against plaintiff’s property was declared illegal. The value of the Lot 16 prior to laying the pavement did not exceed $400. Ine triangle taken therefrom has an area of approximately three per cent (3%) of the original lot. A deep ditch or ravine traverses the lot, north and south. To level the lot’s surface so as to accommodate buildings would require filling this ditch or ravine or placing drain tiling or pipe therein. The cost of this would be prohibitive. Defendant does not seriously complain of the value of the triangle as fixed by the court, but contends that for all practical purposes the lot’s value in its entirety has been destroyed. We are unable to agree with this contention. Ninety-seven per cent (97%) of the lot remains to defendant. • It adjoins pavement 123.81 feet and is close to it for the balance of its west side. We think its value has not been depreciated appreciably by loss of the triangle. The award to defendant, under the evidence, is adequate. For the reasons herein assigned, the judgments appealed from are affirmed at defendant’s cost.

OTT, Judge. Plaintiff, Constantino, brought the suit to recover the su'm of $194.10, of which amount the sum of $150 is for a balance claimed to be due on rent on a restaurant and filling station, and further sum of $44.10 as the .value of certain cutlery, dishes, silverware, etc., which plaintiff claims defendant failed to return when the leased premises were surrendered. Plaintiff leased to the defendant in January, 1942, a restaurant and filling station on Florida Street for the monthly rental of $150. On June 21, 1942, after considerable controversy between the parties, they signed an agreement drawn up by Mr. Joe Brunot, an attorney called in by the defendant, which agreement recites in substance that, for a valuable consideration, it was agreed between the parties, that the lease held by Messina was cancelled and the premises to be delivered to plaintiff two days later. The premises were surrendered by defendant as agreed, and more that a year thereafter this suit was filed by plaintiff in which he alleges that the defendant had paid only $100 per month for the last three months previous to the surrender of the premises, and that he owed the balance of $50 per month for the last three months, and owed for the value of certain articles of cutlery, dishes and silverware, not returned by defendant with the leased premises. The defendant admitted the lease and admitted that the lease was cancelled by mutual consent and the premises surrendered, but he denied that he owed any balance on the rent. He admitted that certain articles were missing when he surrendered the premises, and alleged that he bought and tendered plaintiff other articles to replace the missing ones, but plaintiff refused to accept these articles. Defendant filed a re-conventional demand for $975 damages which he claims to have suffered by reason of the overflow of rainwater in the leased building and leaks therein, but as this re-conventional demand is abandoned, it is not necessary to discuss it further. Plaintiff claims that defendant never paid him all the rent, but defendant claims that becau'se of the bad condition of the premises, he told the landlord that he could not pay $150 per month, but would pay $100 per month, and for the last three months of the lease he paid $100 per month which amount plaintiff accepted without protest; that the agreement signed in June, 1942, was a full settlement between them, except for the missing articles which he offered to replace. The trial court rendered judgment in favor of plaintiff for the alleged balance of $150 on the rent, plus an additional sum of $20, the estimated value of the missing articles. The defendant appealed, and plaintiff answered the appeal, asking that the amount of the judgment be increased to $189.10. The agreement signed by both parties at the time the lease was cancelled and the defendant agreed to surrender the premises makes no mention of past du'e rent. The testimony shows that the principal argument between the parties at the time this agreement was signed revolved around the controversy of whether or not the defendant should pay any further rent. According to the testimony of the defendant, after considerable discussion they got together, “and Mr. Constantino agreed to break the lease providing I would give him $50 so we could get through with the thing, and I gave him $50 and the lease was broken.” The defendant further testified on this point that the matter of past due rent was brought up, and he told plaintiff that he did not owe any past due rent and was not going to pay it because they had had an understanding ; that the only way he would agree to get out was not to pay this past due rent, whereupon plaintiff finally agreed to accept the $50 and break the lease. Plaintiff admits that he was demanding of the defendant the surrender of the place, but he denies that he agreed to remit the past due rent of $150, or that the defendant paid him $50 in full settlement of this rent. He states that: “I told him (defendant) I wanted my place of business or him to pay me the balance of the lease.” On being asked if it was not the understanding of the parties that by signing the agreement for the surrender of the premises they were settling all their claims for damages between them, he answered in the affirmative. There were three principal points of difference between the parties, viz., plaintiff's contention that the defendant owed for the balance of the rent for' the last three months; defendant’s contention that, because of the overflow of the water on the premises and the leakage he had suffered damage and claimed the reduction of the rent to $100 per month for the last three months, which amount he paid plaintiff who made no protest; and, lastly, the insistence on the part of plaintiff that defendant give up the premises and cancel the lease. If plaintiff’s contention in this suit is correct, he would have all of his claims vindicated, and the defendant would get nothing by the purported compromise agreement; for it is obvious if plaintiff prevails in this suit, he will get all the past due rent claimed, a surrender of the premises, and a compromise of any claim that the defendant may have had against him for damages or for a reduction in the rent. We can hardly believe that the compromise agreement can be given any such interpretation and effect. The agreement recites that for a valuable consideration, the defendant cancels the lease and returns the premises. We do not know what consideration he received if plaintiff did not surrender any of his claims. The only reasonable interpretation to be put on the agreement is that the parties intended to settle their differences. This conclusion is supported by the fact that plaintiff waited more than a year to claim this back rent. It is true that the attorney who drew the agreement and was present when the parties were discussing their differences testified that it was his understanding that the defendant was to pay the past due rent later. He stated that the parties were arguing over the matter for almost a half-day, and that the defendant offered to give plaintiff a diamond ring in pledge as security for this past due rent. He says he got up and let them argue and told them when they got ready to draw the agreement to call him back. We believe the parties reached their agreement between themselves, and the attorney got his impression of the terms of settlement during the course of the discussion while he was present, and the two parties finally reached the agreement to settle all their difference. It hardly seems reasonable that nothing was mentioned in the written agreement about the past due rent and when and how it was to be paid if plaintiff and defendant understood that the latter still owed this rent. As already stated, that was one of the principal differences between them. The defendant admits that the inventory of the effects in the restaurant was taken as provided for in the agreement, and the articles claimed by plaintiff were missing. Defendant purchased other articles of a similar nature to replace those missing and claims to have tendered them to plaintiff. We do not find that a timely tender was made, nor do we think that plaintiff .was required to accept them. He is entitled to recover for the reasonable value of these missing articles, and a representative of the company from whom these articles were purchased fixed their value at $20. The trial judge allowed this amount for the missing articles, and we see no reason to change his award in this respect. For the reasons assigned, it is ordered that the judgment appealed from be amended by reducing the amount thereof from $170 to the sum of $20, and as thus amended, the judgment is affirmed; plaintiff tO' pay the cost of the appeal, and defendant to pay all other cost.

HIGGINS, Justice. This is an action on a quantum meruit basis by two attorneys at law to recover a fee in the sum of $9,300, for legal and notarial services rendered to the defendant between October 16, 1942, and December 1, 1942. The respondent admits the employment of the attorneys and that certain legal and notarial services were rendered in its behalf for which it offered to pay the plaintiffs the sum of $1,-000, plus the $50 retainer fee, but denies liability for any additional sum, averring that the fee claimed by the plaintiffs is exorbitant. It specially pleaded that the parties agreed that the fee for services to be rendered was to be fixed by the Board of Directors of the defendant corporation for an amount which would be satisfactory to it. The case was tried on the merits, resulting in a judgment in favor of the plaintiffs for the sum of $6,000. The defendant appealed. The plaintiffs did not answer the appeal but stated that they desired the court to fix a reasonable fee for their services, in accordance with the evidence. Under the special plea, the defendant’s attorneys contend that the question of the amount of the fee having been left to the discretion of the client by the attorneys in the contract of employment .and a reasonable fee of $1,050 having been fixed, in the absence of an allegation of fraud or error, the plaintiffs are bound thereby, citing Butler v. Winona Mill Co., 28 Minn. 205, 9 N.W. 697, 41 Am.Rep. 277; Lee’s Appeal, 53 Conn. 363, 2 A. 758 and Davis v. General Foods Corporation, D. C., 21 F.Supp. 445. Counsel for the plaintiffs countei's by stating that the above authorities are from common law States, and are not binding in Louisiana, a civil law jurisdiction, because under Articles 2034 and 2035 of the Revised Civil Code, agreements containing conditions made to depend solely upon the obligor’s will or discretion are reprobated, citing Avery v. International Trade Exhibition, Inc., 163 La. 454, 112 So. 44, and Wallace v. International Trade Exhibition, Inc., 170 La. 55, 127 So. 362. He also makes the point that the evidence does not show that any such agreement was confected between the parties. In response to the plaintiffs’ bill for $9,300, and their letter of January 23, 1943, requesting payment thereof, the President of the defendant corporation, on January 29, 1943, replied, in part, as follows : “You are about as familiar with the financial situation of The New Orleans Board of Trade, Ltd., as I am, and you know that The Board of Trade came out of its financial re-organization practically bare in pocket, hence I have not been able to discuss with you any lump sum settlement of a fee. “I have had in mind discussing this whole thing with you, but every minute of my time has been taken up by my business connection and I have been unable to do so. “In reporting to the Board upon your retention as counsel, I advised exactly in line with my conversation with you that you would act for The Board of Trade, and the question of fee would be agreed upon between us at a later date." (Italics ours.)' “I have had the feeling that perhaps you would prefer an agreement along the line of a monthly or annual retaining fee, rather than a lump sum payment for your services in this particular case.” The secretary of the Board, in answer to the questions of the trial judge, stated: “Q. Did you have any agreement at all personally with Mr. Jackson (one of the plaintiffs) as to any specific amount for a fee? A. No, sir. “Q. None at all? A. But I did attend several meetings with Mr. McKay (President of the defendant corporation) and a committee from the Board of Trade that endeavored to come to some agreement with Mr. Jackson as to what a reasonable fee zvoidd have been. Mr. McKay had also asked me to call on Mr. Jackson in regard to his fee that he claimed he was due, and on a Saturday afternoon, I did contact Mr. Jackson and discussed the matter with him in detail, and finally, getting nowhere, I finally asked Mr. Jackson, I said: ‘Mr. Jackson, what zvould you consider a reasonable fee?’ Well, he mentioned from four to five thousand dollars. I made a note of that conference and attached it to my records, and on the following day, a Sunday, Mr. Jackson wrote a letter to the Board of Trade, * * (Parentheses and emphasis ours.) In the light of the foregoing evidence, it cannot be said that the attorneys agreed to leave the amount of their fee to the will or discretion of the Board of Directors of the client. The defendant is a corporation organized and existing under the laws of. the State of Louisiana and domiciled in the City of New Orleans. Its capital stock, at the time of organization on January 9, 1889, was fixed at $100,000. Its principal activity is fostering commerce and promoting the development of the Port of New Orleans. It acts as an agency between the exporters and importers of grain, i. e., beans, rice, coffee, etc., and the Board of Commissioners of the Port of New Orleans to inspect and grade grain and to issue certificates as to its condition. It also renders a service in the commercial affairs of the. Port and the City in a similar way with respect to other commodities. It is a nonprofit sharing corporation and has never declared a dividend. It had acquired nine pieces of improved real property in the City of New Orleans, appraised in 1942 for the sum of $186,000, eight of which were rented and one was occupied by its officers and employees. All of this property was heavily mortgaged for many years. In June 1940, a conventional mortgage for $96,000, bearing 6%% interest, was placed on all of the assets, movable and immovable, of the corporation, as well as its choses in action and franchise in favor of the Hibernia Mortgage Company, Inc. In the summer of 1942 the indebtedness had been reduced to $93,500, when the mortgage holder was making demands upon the defendant for payment of the past due mortgage note. The debtor unsuccessfully endeavored to interest two or three insurance companies, a bank, and the Reconstruction Finance Corporation in advancing a sufficient amount of money to refinance the mortgage. In September 1942, Mr. John McKay (now deceased) President and Manager, and Mr. James H. Ricau, Secretary-Treasurer of the defendant, personal friends of John E. Jackson (admittedly an able and experienced Attorney at law and a prominent citizen of this City), discussed informally with Mr. Jackson the difficulties they were having' in refinancing the mortgage, which the creditor was threatening to foreclose. These two officers had succeeded in having the mortgage creditor grant several extensions of time to pay the note, the last one being to November 1, 1942. When Messrs. McKay and Ricau were informed that the Reconstruction Finance Corporation had declined to make the loan, ■ they went to Mr. Jackson’s office on October 16 or 17, 1942, and employed him as the attorney to represent the Board of Trade, and paid him a retainer fee of $50 on account of the legal services to be rendered. The following day, Mr.' Jackson phoned Harry Latter of Latter & Blum, Inc., real estate brokers, and conferred with him with reference to securing a loan to take up the mortgage note, showing him a copy of the application and statements attached thereto that had been filed with the Reconstruction Finance Corporation. These documents had been prepared by the President, the Secretary-Treasurer and the Auditor of,the defendant. Mr. Latter was so favorably impressed by the thoroughness of the application and statements attached thereto that he became interested in the matter. Mr. Jackson then telephoned the President and the Secretary-Treasurer of the Board of Trade, informing them that the firm of Latter & Blum, Inc., which represented investors, was a good prospect through which the loan could be made. The defendant’s officials, upon Mr. Jackson’s suggestion, then contacted Mr. Latter, who went to the defendant’s office, looked over its books and records and secured additional information and statements of its affairs. After several conferences between these parties, some of which were attended by Mr. Jackson, Mr. Latter, on October 23, 1942, wrote a letter to the defendant, incorporating therein the plan for its refinancing. The proposition was accepted and Mr. McKay placed the communication in Mr. Jackson’s hands with instructions that he draw a contract in legal form embodying therein the agreement contained in the letter, as well as prepare a proper resolution of the Board of Directors of the defendant corporation, authorizing the President to sign the formal contract. Mr. Jackson complied with this request and the resolution was passed and the contract signed on October 26, 1942, under the terms of which a loan of $102,500 was to be made and secured by nine first mortgages aggregating $81,500, at 5%, and one second mortgage of $21,000, of which $12,000 would bear interest at 5%, and $9,000, representing the broker’s fee of Latter & Blum, Inc. for its services in furnishing the refinancing plan and money, to bear no interest. The mortgages were to cover all of the real estate owned by the Board of Trade, but not its personal property or franchise. Pending the consummation of the new loan, four of the nine pieces of immovable property were sold to third parties through Latter & Blum, Inc., on commission, at a considerable loss, the prices aggregating $36,500, or $34,657 net. The loan contract was then amended so as to reduce the first mortgages to $59,000 and the second mortgage to $8,825, with $2,825 of the latter amount bearing interest. By effecting the transfers of these properties prior to their inclusion in the new mortgages, the defendant saved the costs of mortgage releases and a premium of 2%% which it would have had to pay to anticipate payment, in order to procure a release of mortgage. All of the interested parties concurred and co-operated in the efforts to obtain the extension to December 1, 1942, granted by the mortgage creditor but this was accomplished primarily through Mr. Latter’s assurance and financial responsibility that the past due note would be paid on or before that date. In its applicátion to the Reconstruction Finance Corporation, the defendant declared that in the preceding ten years, it had made a net profit of $77,780.57. Mr, Ricau, in his testimony, stated: “After setting aside a cash reserve for amortization of loan, interest payments, taking into consideration all revenues” (including the dues received from its members) “and operating expenses * * * ” the corporation would end the year 19.44 with a cash surplus of “ * * * around $9,-500.” The defendant’s President and its Secretary-Treasurer both testified that the corporation made contributions and donations to other civic undertakings and enterprises, especially to the traffic bureau. Between October 26, 1942, and December 1, 1942, Mr. Jackson gave constant but not exclusive attention to a great many legal details in the matter substantially as follows: Conferences with the client, the prospective mortgage creditor, the mortgage creditor, and the four purchasers’ attorneys, writing letters to and for the client to the mortgage creditor and the four purchasers’ notaries; preparing resolutions for the sales of the four properties and resolutions authorizing the five first mortgages and the second mortgage passed by the Board of Directors of the defendant; procuring surveys of the properties at the lowest cost, after conferences with three surveyors ; supervising nine applications for title insurance; clearing two titles, one under the law of ten years prescription by two affidavits showing that the defendant purchased the property without having the title examined and had been in undisputed public possession thereof for more than ten years and services in connection with curing the title of another property consisting of an affidavit as to the marital status and offspring of a deceased party, who had owned the property previously; promoting rapid execution of the acts of sale, which had to be done simultaneously with the passing of the new mortgages; being present at the passing of the four acts of sale; executing two releases of the original mortgage; preparing and executing all six mortgages and furnishing certified copies thereof to client and the mortgage creditor; and supervising the change of insurance coverage, the proration of taxes, and the adjustment of rent on the alienated properties. . As a result of the combined efforts and co-operation of Latter & Blum, Inc., the Hibernia Mortgage Co., Inc., the mortgage creditor, Messrs. Jackson and Allen, and the President, the Secretary-Treasurer, the Auditor and Board of Directors of the defendant, the foreclosure of the client’s property was avoided, the movable property and franchise of the defendant were .freed of the mortgage, and the interest rate was reduced from 6%% to 5% a year on $67,825. Mr. Allen, one of the plaintiffs, a reputable and competent attorney at law, testified that Mr. Jackson entrusted the notarial and curative title work to him and impressed upon him the necessity of performing these services before' the expiration of the extension period and that, thereafter, and until December 1, 1942, he devoted a great deal but not all of his time thereto. He stated that for the notarial and curative work he considered a fee of $1,600 fair and reasonable, in view of the urgency of the matter, the amount, and the responsibility involved. He also gave an estimated itemization value of the respective work he performed. Mr. Jackson, after stating that his letter of December 4, 1942, substantially included the above detailed statement of services rendered, testified that he concluded he was entitled to a fee of $9,350, because he had saved the client that amount in attorneys’ fees alone by preventing the foreclosure. Briefly, the attorney who would have foreclosed would have received a fee of 10% of the total amount of the mortgage of $93,500 under an express provision in the act. He refused to estimate the value of his respective services, stating that he had rendered a bill covering a fee in globo for all services both legal and notarial. He declined to estimate what part of the $9,350 charged covered his services for interesting and obtaining Mr. Latter to supply the refinancing plan and the money to pay the past due mortgage note. Mr. Felix W. Gaudin, a reputable and capable practitioner of the Bar, with twenty-seven years experience, testified as an expert for plaintiffs and stated that after reading the hypothetical question containing an enumeration of all of the legal and notarial services rendered by the plaintiffs and hearing their testimony, he considered a fee of $7,500 fair. In arriving at this conclusion, he admitted that he took into consideration the fact that he considered the plaintiffs were employed on a contingent basis and, in the event the proposed plan or contract of refinancing would fail, they would not receive any fee because all of the property of the defendant would be lost in the foreclosure proceeding; that there was moral responsibility on the attorneys to pay the title insurance fee and the surveyors’ fees .amounting to $728.75 and $350, respectively, if. the client failed to do so; that time was the essence of the whole transaction; and that the attorneys were entitled to a fee for securing a new lender. On cross-examination, he was asked to state what he considered a reasonable fee for the legal and notarial services-rendered by the plaintiffs from the time they drafted the contract of October 26, 1942, until the completion of the transaction before December 1, 1942, disassociating therefrom what he thought was the value of the services of the plaintiffs in procuring Latter & Blum, Inc., to have its client or clients advance the money. He stated that the fee for the legal and notarial work should be $2,500. Mr. John D. Miller, a reputable and able member of the Bar, who had been practicing law for forty-one years, testifying as an expert, stated that after considering the hypothetical question incorporating all of the legal and notarial services rendered by the plaintiffs, as well as listening to substantially all of their testimony, he was of the opinion that a fee of $5,000 would be fair and reasonable. Upon his attention being called to the fact that there was not a guaranteed fee but the element of risk or contingency that if the proposed refinancing fell through and the mortgage creditor foreclosed, the fee of the plaintiff would not be paid, as the corporation would not have any means of doing so, he .increased the amount to $6,000. When asked if the defendant had produced its own financier or broker and then requested the plaintiffs to furnish all of the legal and notarial services they rendered, what would be his idea of adequate compensation or remuneration therefor, he stated, the sum of $2,000. The defendant’s representatives practically conceded that all of the legal and notarial services claimed to have been rendered by the plaintiffs were performed and they did not produce any countervailing testimony as to what would be a fair and reasonable fee under the facts and circumstances of this case. They rely upon the provision in the contract that the notarial services to be rendered in connection with it were not to exceed $1,500. They emphatically deny that it was ever contemplated by the parties that the plaintiffs were to charge in the nature of a “finder’s fee” for having referred them to and advised them to discuss the matter with Mr. Latter. In fact, the defendant’s counsel contend that this -is a suit for legal and notarial fees only as expressly stated in the plaintiffs’’ petition, which they alone, in proper person, signed and, therefore, does not cover compensation or a fee for producing a financier or a broker, who was willing to advance the money. They argue that the $9,000 fee paid to Latter & Blum, Inc. was the broker’s fee or “finder’s fee”. They point out that Mr. Jackson, in his testimony, denied that he was making any charge in the nature of a “finder’s fee”, but later admitted that he was, and refused to state what part of his total fee was to be attributed to the legal and notarial services as distinguished from his effort to interest Mr. Latter in furnishing or having furnished the money. Mr. Latter testified that he favorably and well knew Mr. Jackson, who originally introduced him to the matter and that he was influenced to a certain extent in considering the proposition because of Mr. Jackson’s standing in the community, but stated that he was convinced and decided to undertake the transaction because of the splendid statement of the corporation’s affairs prepared by the President, Secretary-Treasurer and the Auditor and the security he or his client was to receive. We do not consider a so-called “finder’s fee”, that is, a fee for the simple act of referring an individual or corporation to a particular financial institution where the party or client borrows money, a legal or notarial service. For example, if a lawyer were to refer or recommend a party or client to a certain bank, a homestead, a finance or a brokerage company, or a lender to borrow money, and performed neither legal nor notarial services in connection with the accomplishment of the loan, those services being rendered by another lawyer and notary, clearly the mere telephone or personal message referring or recommending the party to the lender would be neither a legal nor a notarial service for which a professional fee could be charged. Plaintiffs have no agreement with defendant to that effect. There is no allegation in the plaintiffs’ petition that they are seeking to recover any remuneration, compensation or fee other than for professional or legal and notarial services. Neither the plaintiffs’ counsel, their two expert witnesses, nor they themselves refer us to any authority that a broker’s or “finder’s fee” for suggesting or recommending a lender to a borrower is considered a legal or a notarial service for which a professional fee may be charged. Messrs. Jackson and Allen are entitled to charge a fee for legal services, for advice and cdnsultation, for the time and effort .they employed and utilized in studying, discussing and analyzing the defendant’s problems and using their knowledge, ability, experience and standing in presenting the matter and in helping to persuade and convince the prospective lender that it was a sound legal investment. We do not think that the evidence shows that Mr. Jackson was wholly responsible for interesting Mr. Latter in the proposition and convincing him and his associates that the transaction was an advantageous one to his firm .and his client. Mr. Latter states that defendant’s records showed it was a good business deal with the proper security and he was convinced thereby. The experts predicate their estima? tion of the fee to a great extent on the theory that the employment was on a contingent basis. From October 16 to October 23, 1942, before Latter & Blum, Inc., submitted a definite proposal, and to October 26, 1942, when the formal contract was signed, there was some element of chance that the refinancing would not be accomplished. Up to October 23, Mr. Jackson had interviewed Mr. Latter and his own client. If the matter had ended there, he would have lost only the amount of time and advice that he had given. It was after he started to prepare the contract of October 26 that he began to employ substantial time and efforts in the matter. When the contract was signed, the mortgage creditor, which had a claim of $93,500, was so confident of payment because of the financial standing of Latter & Blum, Inc., it withheld foreclosing on the mortgage. After that time, the plaintiffs also had definite assurance that they would be paid a reasonable fee for their services. So, the element of contingency must be largely eliminated from the case. We disagree with learned counsel for the defendant that time was not an element in the case or that haste was not required, because there was considerable work to be done to meet all of the legal requirements. Plaintiffs had to attend to the legal and notarial work to complete the transaction by December 1, 1942. While the plaintiffs did not give all of their time to this service, they devoted a great part of it to the general supervision and direction of the entire affair. We do not agree with Mr. Jackson that he is entitled to $9,350 because, if the mortgage had been foreclosed by another attorney, he would have been paid 10% of the amount, or $9,350 for that service. Jackson had no contract with the defendant to that effect. The mortgage was not foreclosed. This salutary result was brought to fruition by the combined efforts and co-operation of the several parties who were involved in the matter. Exclusive credit cannot be given to Mr. Jackson and his partner for having obtained this advantage for the defendant. No transcendent or unusual legal question or complication was involved or presented. The problem was essentially a financial one, which was solved in the main by Latter and Blum, Inc., in working out the refinancing plan and furnishing the money to carry it out. This firm was paid $9,000 for its services. The plaintiffs did not examine any of the titles, institute any suit or perform any court work. They were reimbursed $138 for the costs of mortgage and conveyance certificates, tax researches, etc. In Dinkelspiel & Hart v. Pons, 119 La. 236, 43 So. 1018, it was held: “Determining the fees for services of an attorney is a matter of great delicacy, and a court in 'fixing them must be guided by a conscientious estimate of their value. State ex rel. St. Amand v. Bank [of Commerce], 49 La.Ann. 1060, 22 So. 207. Expert opinion, in such cases, is a guide, but is not necessarily controlling on the court. Randolph, Singleton & Browne v. Carroll, 27 La.Ann. 467; 4 Cyc. 1003. Where the nature and extent of the services are shown by the record, it is the duty of the court to bring to bear its knowledge of the value of the services of counsel. Gathe v. Broussard, 49 La.Ann. 312, 21 So. 839.” See, also, Peltier v. Thibodaux, et al., 175 La. 1026, 144 So. 903. The plaintiffs rely upon the cases of In re Tulane Homestead Ass’n, 202 La. 221, 11 So.2d 536, and In re Aetna Homestead Ass’n, 199 La. 929, 7 So.d 188. Those two authorities are not in point, because there the expert testimony was predicated upon the legal services rendered. In the instant case, we have demonstrated that the experts erroneously took into consideration, in arriving at their estimate of a fair fee, the fact that the attorneys recommended their client to a lender and that their fee was on a contingent basis. Considering the sum of money involved in the transaction; the extent of the responsibility imposed upon the attorneys and the notary; the amount, type and nature of the work performed; the period of time in which it was accomplished; the urgency of the matter; the quasi civic nature of the defendant corporation and its financial condition; the ability, skill and efficiency of counsel and the notary; and the results achieved (In re Interstate Trust & Banking Co., 204 La. 323, 15 So.2d 369), it is our opinion that the sum of $4,000 is a reasonable and fair compensation and remuneration for the legal and notarial services performed by the plaintiffs in behalf of their client. For the reasons assigned, the judgment of the district court is amended by reducing the award from $6,000 to $4,000 and, as thus amended, the judgment is affirmed; the appellees to pay the costs of this Court and the appellant to pay the costs of the district court. O’NIELL, C. J., and ROGERS, J., are of the opinion that an allowance of any sum above $2,500 is excessive.

WESTERFIELD, Judge. Edwin J. Oubre died on March 16, 1942, as a' result of his having either jumped or fallen out of a window in an office on the twelfth floor of the Carondelet Building in the City of New Orleans. The Mutual Life Insurance Company of New York, hereinafter called the “insurance company”, had issued to the deceased two policies of life insurance of $1,000 each, the policies containing a provision for the payment of double indemnity in the event of accidental death. The insurance company paid to Mrs. Oubre, the beneficiary, the principal sum of each policy or a total of $2,000, but refused to pay the double indemnity, whereupon she brought this suit for $2,000 and the insurance company defended upon the ground that the insured did not die as a result of an accident, but because of his having committed suicide. There was judgment below in favor of defendant dismissing plaintiff’s suit and she has appealed. It appears from the evidence that Mr. Oubre was the bookkeeper of the Progressive Tobacco and Supply Company and that he was discovered to be short in his accounts. Oubre admitted the shortage and announced that it might run over $3,000. He offered to make restitution by transferring all of his possessions, his bank account, automobile and his equity in his home. The papers were prepared by Mr. Paul Weiss, attorney for the Progressive Tobacco and Supply Company, and Oubre was in his office in the presence of Mr. Glen Salm, an officer of the tobacco company and Mr. Hughes, an auditor. As Mr. Weiss was beckoning to Oubre to sign the papers, someone hollered “My God, he has fallen out of the window”. Oubre, it seems, had been seated in the window with his back against the frame and one foot on the ground. The window was twenty-three inches above the floor, the sill of which was “eight or nine inches at the first part and where the sash comes down is five or six inches and then there is a protection of terra cotta on the outside, or a total of sixteen or eighteen inches”. There were no bars on the windows, but the sash had been pulled down to a point about level with the top of Oubre’s ear. The jurisprudence in this State is to the effect that where a defense of suicide is made to a suit on an accident insurance policy, the burden of proof rests upon the defendant insurance company “to establish the suicide to the exclusion of every other reasonable hypothesis.” Webster v. New York Life Insurance Co., 160 La. 854, 868, 107 So. 599; Andrews v. Provident Life Insurance Co., 179 La. 77, 80, 153 So. 26; Pecoraro v. New York Life Insurance Company, La.App., 141 So. 501. Counsel for the insurance company questions the propriety of this jurisprudence and cites a number of cases from other jurisdictions which, they say, represent a proper statement of the law and are to the effect that in a suit of this kind the presumption against suicide disappears the moment “some evidence is offered inconsistent with. suicide and inconsistent wtih death from accidental means. * * * In other words, if there is doubt as to whether the death was accidental or suicidal, there should be judgment for defendant. This has become the accepted rule”. We have nothing more than an academic interest in the conflicting opinions of other jurisdictions and, without intending any reflection upon the learned judges who have written those opinions, we adhere to our own jurisprudence. Any other course would be obviously improper, even though we were convinced that our Supreme Court was in error. While that Court needs no justification at our hnads, a few considerations occur to us which may have had some influence. To begin with “self-preservation is the first law of nature” — for that matter, the first, the second and the third. There are, of course, many suicides, and some of them for what would appear trivial reasons, but, as a rule, we cling to life with all the tenacity of which we are capable. Individuals, the victims of “swift and most unmerciful disaster” which “followed fast and followed faster” sit among the ruins of their fortune, their ambitions, hopes and their health without any of the things which would seem to make life worth living and yet they cling to it with all the fervor of more fortunate persons. Oubre had been a defaulter for a number of years. He had been detected by his employer. He may be said to have suffered some emotional strain. He had a wife and two children of whom he was inordinately fond. His wife testified that he was a good husband without any bad habits, kind and devoted. The disgrace which the discovery of the defalcation brought upon him must have affected the sensibilities of such a man to a marked extent, but he was not facing trial before a jury with its attendant publicity or incarceration in the penitentiary because, according to the testimony of his employer’s attorney, he had been assured that no prosecution was in contemplation. He could very easily in a moment of despair at the ruin of his modest establishment and, possible estrangement of his family, have been so distressed as to induce him to commit suicide by jumping out of the window in which he was seated. On the other hand, who can say what amount of disgrace and distress will cause a certain individual to destroy himself. Oubre may have had no intention of doing so and unless the evidence excludes every reasonable hypothesis to the contrary, he must be considered to have fallen from the window. Counsel insist that even under the supreme test imposed by our Supreme Court “it is impossible for the insured to have fallen from the window” and that in the position in which he was seated “there was no way for Oubre to go out of the window without intentionally ducking his head * * *. The window (seat) as can be seen is low and if he had gotten up to leave the window and had become ill or dizzy, he would have fallen towards the inside of the room”. Well, perhaps so, but suppose he had put his head intentionally out of the window to look at some object and had become “ill or dizzy”, he would not have fallen in the room, it seems to us. On the other hand, let us assume that he slouched in his seat until the top of his head became lower than the sash against which it had rested, he might have lost his balance and fallen. Certainly these are reasonable assumptions. Counsel directs our attention to the fact that Oubre had twice been requested, first by Mr. Hughes and then by Mr. Weiss, to take a seat in a chair because, as Mr. Weiss said, the chair was softer. Oubre each time complied, but again went back to the window sill. We attach no especial significance to Oubre’s maneuvers in this respect because of his highly nervous state. At least that might have explained it, as well as saying that his actions evinced a determination to commit suicide. Moreover, why should Oubre, assuming that he had made up his mind to kill himself, adopt this method of doing so. It seems to us that he would have selected a less public place than the office of his employer’s attorney, in the presence of three witnesses and we can think of less painful and more efficient means to that end. The long and short of it is that while we believe there is a possibility, yes, a probability that Oubre jumped out of the window, we are also convinced that the evidence does not demonstrate this to be the case beyond a reasonable doubt. In the early case of Leman v. Manhattan Life Insurance Co., 46 La.Ann. 1189, 1193, 15 So. 388, 389, 24 L.R.A. 589, 49 Am.St.Rep. 348, it was said: “When, as in this case, circumstantial evidence alone is relied on to establish suicide, it is at least within bounds to say the evidence must be of a character to exclude, with reasonable certainty, any other cause of death. If the evidence falls short of this exaction, the suicide is not proved.” For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the plaintiff, Mrs. Clothilde H. Oubre, and against the defendant, Mutual Life Insurance Company of New York, in the full sum of $2,000 with legal interest from judicial demand and all costs. Reversed.

McCALEB, Judge. The plaintiff is engaged in the contracting business in New Orleans and conducts his operations under the name of Brandin Slate Company. On November 18th, 1941, he entered into a written contract with the defendant, Mary Owens, under which he agreed to make certain alterations, additions and improvements to the real property of the defendant designated as Nos. 2427-29 London Avenue, New Orleans, in consideration of a price of $1890. This contract, which describes in detail the work to be performed by plaintiff, stipulates that the price of $1890 is “to be paid in monthly installments” and further that “Owner gives Brandin Slate Company permission to try and arrange the financing.” Alleging that, in accordance with his obligation under the aforesaid contract, he has fully performed the work required of him; that he is and has been ready and willing to deliver the building and improvements to defendant free and clear of all liens and claims for labor and material furnished by him which was used in connection with the alteration and repairs to the building and that he has made demand on defendant for the payment of the price due under the contract without avail, plaintiff instituted suit in the Civil District Court to recover from defendant the contract price of $1890. After filing an exception of no right or cause of action which was overruled" by the trial court, the defendant answered plaintiffs petition and denied the allegations of fact contained therein. She further set forth that the contract was void; that the price was exhorbitant; that plaintiff’s agent obtained her signature to the so-called contract through fraud and deceit and that the court should declare that she was relieved of any and all responsibility in the premises. The case thereafter proceeded to trial on the issues thus formed by the pleadings. At the outset of the hearing, counsel for defendant objected to the introduction of evidence in the case “for the reason this contract which we submit to the Court is not a contract upon which one can be sued on for the reason everything is in blank.” After hearing argument on this objection, the court made the following ruling: “In this so-called contract everything that involves a meeting of the minds is blank. Considering the fact that the alleged contract was in fact no contract at all and there was no meeting of the minds evidenced in that written agreement, and that the petition does not allege any demand to recover on a quantum meruit, the Court must sustain the objection and exclude all evidence. I will dismiss the case as of non-suit, so that there will be no question of res adjudicata in the event of a new suit on a quantum meruit or some other contract growing out of the same transaction.” In conformity with this ruling, a judgment was rendered dismissing plaintiff’s demand as in case of nonsuit. Both parties prosecuted appeals from the judgment, defendant contending that plaintiff’s suit should have been dismissed absolutely and plaintiff maintaining that the judge erred in refusing to hear evidence in the case and in dismissing his demand. Since the record has been lodged in this court, counsel representing plaintiff in the District Court has joined the Armed Forces of the United States and other attorneys have been employed. The attorney, who represented defendant in the lower court, has died and, although defendant has been duly notified of the hearing, she has not appeared either in person or through other counsel. The objection to the hearing of any evidence in the case, which was interposed in the lower court by counsel for defendant, was based upon the theory that there were “blanks” contained" in the written agreement which were required to be filled out in order for the parties to execute a binding contract. The judge, in maintaining this objection, remarked that “in this so-called contract everything that involves a meeting of the minds is blank.” An examination of the contract, which is attached to plaintiff’s petition, reveals that it was executed on a printed form of Brandin Slate Company. The work which the contractor proposed to perform under the agreement is fully detailed in typewriting, as well as the price of $1890, which the defendant agreed to pay. The only “blanks” to be found in the document are those contained in that part of the printed form referring to the making of a down payment by the owner and the execution of a promissory note, payable in installments, to be given to the contractor for the balance to become due on the work. Obviously, it was unnecessary for the parties in the instant case to fill in those blanks, as the typewritten portion of the contract, which prevails over the printed matter, did not contemplate any down payment at all or the giving of a promissory note for the price of the work. Hence, it is difficult for us to understand how the presence of the blanks in the printed portion of the contract was pertinent to the judge’s ruling that a binding contract did not exist as there was no meeting of minds by the parties. While the reason given by the judge for his statement that the contract is unenforceable because of lack of mutuality does not clearly appear from his ruling, it is evident that he was of the opinion that, because the parties stipulated that the purchase price was to be paid in monthly installments without stating the amount or the number of such installments, their failure to do so was fatal to the agreement. In other words, it is apparently the view of our brother below that an agreement to do work for a certain price, payable in monthly installments, is not a binding contract because, inasmuch as the parties have not agreed upon the amount of such installments, it is impossible for the court to fix the method of payment of the price. We cannot agree with this view. In an agreement to alter, repair or construct a building, where the work to be done is set forth and the price to be paid is. fixed, all of the essentials of a binding contract are present. The mode of payment of the price, whether in installments or otherwise, is merely an accidental stipulation. Under Article 1764 of the Civil Code, it is provided that all things not forbidden by law may legally become the subject of contracts but that different agreements are governed by different rules “adapted to the nature of each contract to distinguish which it is necessary in every contract to consider: “1. That which is the essence of the contract, for the want whereof there is either no contract at all, or a contract of another description. Thus a price is essential to the contract of sale; if there be none, it is either no contract, or if the consideration be other property, it is an exchange. ‡ ♦ “3. Accidental stipulations, which belong neither to the essence nor the nature of the contract, but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of accidental stipulations. “What belongs to the essence and to the nature of each particular description of contract, is determined by the law defining such contracts; accidental stipulations depend on the will of the parties, regulated by the general rules applying to all contracts.” Thus, it will be readily observed that the agreement under consideration contains all of the necessary elements of a binding contract, set forth in Article 1764, i. e., the work to be done by the contractor and the payment by the owner of a fixed price therefor. There is, however, an accidental stipulation contained in the agreement, which refers solely to the manner in which the price is to be paid by the owner —that is, that the parties contemplated that the owner would have the right to pay the agreed price in monthly installments. The fact that the amount of these installments is not fixed does not make the price indefinite but merely exhibits that the parties contemplated that the amount to be paid each month would be agreed upon at some future date. This intention is evidenced by another provision of the contract declaring that the owner grants to the contractor permission “to try and arrange the financing”. In other words, it seems clear to us that, at the time the agreement was made and the price fixed, the contractor believed that he could arrange for a loan on the property whereby he could obtain the price of his work in full and in one payment. If he had been successful in arranging this loan, the covenant respecting the installment payments would have amounted to naught. However, if he was unsuccessful (as apparently was the case here), it became necessary for the parties to agree upon the amount of the monthly payments in order for the owner to liquidate the fixed price for the work. If, in fact, no agreement was made concerning the amount of the monthly install- merits, the owner might have had the right to a rescission of the contract on the ground that she agreed only to become liable for the price, provided payment could be made by monthly installments. But can she now claim that there is no contract at all nor an obligation on her part to pay the fixed price, where she has permitted the contractor to execute his part of the engagement, on the theory that she agreed to become liable only if payments were made in monthly installments and that the amounts of said installments were not fixed? Stated in another way, if it be conceded that defendant had the right to prevent performance of the agreement, while it was still executory, on the ground that the amount of the monthly payments contemplated could not be fixed by amicable agreement, can she now make the same defense after she has permitted the contractor to execute his undertaking? We think not. It is well recognized that the nonperformance of an accidental stipulation does not invariably have the effect of abrogating an agreement forasmuch as such a covenant is not of the essence of a valid contract. See Andrus v. Eunice Band Mill Co., 185 La. 403, 169 So. 449 and Moore v. O’Bannon & Julien, 126 La. 161, 52 So. 253, 255. In the Moore case, which was quoted from with approval in the‘Andrus case, it is said: “The stipulations relating to the erection of the mill and the making of the payments thereon pay days to be fixed are quoad the sale of the timber ‘accidental,’ being neither of the essence of the contract nor necessarily implied from its nature, but depending solely upon the will of the parties, regulated by the general rules applicable to all contracts. Civ.Code, art. 1764, par. 3. Where the parties so agree, or, in some cases, where there is no agreement to the contrary, noncompliance with accidental stipulations may furnish good cause to annul a contract.” The accidental stipulation contained in the contract in this case was obviously inserted for the benefit of the defendant — for, if nothing had been covenanted by the parties respecting payment in installments, the price would become due as soon as the work had been completed by the contractor. See Civil Code, Article 2050. The provision in the contract, respecting the payment in monthly installments, does not contemplate the payment of interest to the contractor on the deferred balance of the price while the work was in progress and, therefore, the stipulation cannot in any sense be regarded as one in his favor. Hence, since the stipulation for installment payments was inserted solely for defendant’s benefit, it could be waived by her. If we assume, as we must, that the contractor was unsuccessful in arranging for the financing of the job and if the parties were unable to come to an agreement respecting the amount of the contemplated monthly installments, defendant would have had the right to withdraw from the contract and have had it rescinded. But this right to withdraw from the engagement could be waived by defendant, either expressly, or impliedly by permitting the contractor to fulfill his part of the bargain without protest. In 17 C.J.S., Contracts § 443, pp. 926 and 927, we find the following: “The right to rescind may be lost or waived by delay, or by words or conduct evidencing an intention not to exercise it, such as by accepting its benefits. * * * “There is a waiver of the right to rescind a building contract where the contract is treated, by the party having such right, as still in force. So also a party to a building contract may waive his right to rescind the contract by not exercising such right promptly.” Hence, we conclude that, since the agreement under consideration contains all of the essential elements of a contract, i. e., the work to be done and the price to be paid, a valid contract subsists, despite the fact that it contains a provision concerning terms of payment which is vague aiid indefinite because the amounts of the monthly installments are not stated. It well may be that, if the judge had not refused to hear any evidence in the case, plaintiff or defendant could have cleared up the ambiguity as to the amount of the installments by submitting evidence to show that the parties, subsequent to the execution of the contract, agreed to, and fixed, the amounts which should be paid each month. Such evidence would be clearly admissible. On the other hand, if neither plaintiff nor defendant are able to show that an agreement was reached respecting the amounts of the monthly installments, plaintiff’s petition nevertheless states a cause of action for recovery of the entire contract price, since he has alleged that he has fully performed his obligation un der the agreement. In view of this allegation, the question will be presented on the merits as to whether the defendant, in permitting plaintiff to execute his part of the engagement, has not waived, by her conduct or otherwise, her right to insist that she is not liable for the stipulated price on the ground that the parties contemplated that that price was to be liquidated in monthly installments and that no agreement could be reached concerning the amount of those installments. The result to be reached on this question can only be determined by the hearing of evidence. ■We therefore hold that the objection interposed by defendant to the hearing of any evidence in the case was erroneously sustained and it is now overruled. For the reasons assigned, the judgment appealed from is reversed and the case is remanded to the Civil District Court for further proceedings in accordance with law and consistent with the views herein expressed. The costs of this appeal are to be paid by the defendant, Mary Owens, other costs to await the final disposition of the matter. Reversed and remanded.

PONDER, Justice. The plaintiff, Sidney J. Weber, Jr., brought suit in the Nineteenth Judicial District Court for the Parish of East Baton Rouge against H. G. Hill Stores, Inc., a corporation organized under the laws of Louisiana and domiciled in the City of New Orleans, seeking an interpretation and construction of a lease on commercial property entered into between him and the defendant on June 20, 1940 and asking for the recovery of accrued rentals in the amount of $10,198.15 alleged to be arbitrarily withheld by the defendant. In the alternative, the plaintiff asked for the reformation of the lease so as to reflect the true intention of the parties. The defendant interposed an exception to the jurisdiction ratione personae based on the ground that the defendant must be sued at its domicile in the City of New Orleans. Upon hearing, the exception was overruled, and the defendant applied to this Court for writs of certiorari and prohibition. The writs were granted, and the matter is now submitted for our determination. It is admitted that the defendant’s domicile is in the Parish of Orleans, and the only question presented is whether or not a suit of this nature comes within one of the exceptions to the established rule tl^at a defendant must be sued in the courts of his domicile. The plaintiff takes the position that the suit is for the determination of a right or interest in real estate situated in the Parish of East Baton Rouge, and that the proper forum in suits of this nature is the situs of the property. On the other hand, the defendant contends that the lower court was without jurisdiction for the reason .that the suit does not come under any of the exceptions to the rule that a defendant must be sued in the courts of his domicile. At the outset, we might say that it is not a function of this Court to enter declaratory judgments. While the plaintiff seeks an interpretation of the contract, he, at the same time, asks to recover more than $10,000 on the interpretation placed thereon by himself. This, in our opinion, constitutes a moneyed demand for an amount alleged to be due under the terms of the lease, which clearly comes within the purview of the general rule that a defendant must be sued in the courts of his domicile. The plaintiff’s alternative demand to reform the lease is also a personal right which can only be enforced in the courts of the defendant’s domicile. The plaintiff is under the impression that the Nineteenth Judicial District Court has jurisdiction over a suit of this nature under paragraphs eight and nine of Article 165 of the Code of Practice. He also relies on certain statements made in the opinion handed down in the case of Browne v. Gajan, La.App., 175 So. 486. Paragraph eight of Article 165 of the Code of Practice reads as follows: 8. “Trespass on Real Estate. In actions of trespass on real estate and in all matters relating to real servitudes, be they natural or conventional, the judge of the place where the property is situated shall have cognizance of the cases.” This suit is not one for trespass and does not relate to a real servitude. We had occasion in the case of Gulf Refining Co. of Louisiana v. Glassell, 186 La. 190, 171 So. 846, prior to the adoption of Act 205 of 1938, to entertain a mineral lease and arrived at the conclusion that the usual mineral lease merely obtains an obligatory or personal right, not a real right, and was in the same category as an ordinary lease on realty. Under the provisions of Act 205 of 1938 a mineral lease has been excepted from the general rule governing leases by the Legislature’s defining and classifying it as a real right. No such classification has been extended to other leases on realty. Paragraph nine of Article 165 of the Code of Practice reads as follows: 9. “Trespass. In all cases where any person, firm or corporation shall commit trespass, or do anything for which an action for damage lies or where any corporation shall fail to do anything for which an action for damage lies, such person, firm or corporation may be sued in the parish where such damage is done or trespass committed or at the domicile of such person, firm or corporation.” From a mere reading of this provision of the Code of Practice, it is apparent that it is not applicable to a suit to recover money due under a contract of lease. The cases of Tripani v. Meraux, 184 La. 66, 165 So. 453, and O’Brien v. Delta Air Corporation, 188 La. 911, 178 So. 489, are not pertinent to a suit of this nature for the reason that they involve entirely different causes of action as well as different facts. Plaintiff relies on expressions made in the opinion handed down in the case of Browne v. Gajan, supra. In the case of Browne v. Gajan, supra, the question involved was a mineral right and not a lease, and any statement made therein not directly connected with the matter at issue is mere obiter and was not necessary to the decision. The statement therein to the effect that an action to reform a lease or any other contract having to do with realty is an action for the determination of an interest in the realty itself is in direct conflict with our holding in the Glassell case. The decisions in Browne v. Gajan, supra, and Gulf Refining Co. of Louisiana v. Glassell, supra, were handed down prior to the adoption of the act of the legislature defining a mineral lease as a real right. We are of the opinion that our holding in the Glassell case based on the interpretations of the articles of the Revised Civil Code dealing with leases on real property was a correct interpretation of those articles in so far as leases affecting realty were concerned at the time we handed down the decision. Since that time, the legislature placed a mineral lease in the category of a real right. However, no change has been made with respect to other types of leases on real property. For the reasons assigned, the exception to the jurisdiction ratione personae of the Nineteenth Judicial District Court is maintained, and the suit is dismissed at plaintiff’s cost.

In the above case, Judge LE BLA'NC was recused. On the application for a rehearing, Judges DORE and OTT were not in full agreement as to the correctness of the original opinion, La.App., 19 So.2d 651, and Honorable B. B. TAYLOR, a lawyer practicing at the Baton Rouge Bar, was called in to sit as Judge ad hoc on the rehearing. The following opinion was rendered by Mr. TAYLOR, Judge ad hoc, from which opinion and decree Judge DORE dissents.

WESTERFIELD, Judge. This is a suit for damages in which it is alleged that Kenneth Young, an employee of Woodward-Wight & Company, Ltd., negligently operated one of its trucks with the result that Whitney Ducote, an employee of Higgins Industries, Inc., was injured. The Maryland Casualty Company, Higgins’ Insurance carrier, paid Ducote $930.53 as workmen’s compensation, medical and hospital expenses. Ducote sued Woodward-Wight & Company, Ltd., and its liability insurance carrier, General Accident, Fire and Accident Assurance Corporation, Ltd., for $15,464. The Maryland Casualty Company joined Ducote as co-plaintiff seeking to recover the amount paid Ducote by it. The defendants denied that Kenneth Young was negligent and disclaimed all responsibility for the accident. There was judgment below dismissing plaintiffs’ suit and they have appealed. On January 14, 1942, a large trailer, propelled by motor, was loaded by employees of the defendant Woodward-Wight & Company with corrugated iron and sent to Higgins Industries, Inc., in charge of Kenneth Young. When Young reached the industrial canal plant of Higgins Industries, he stopped at the office of William J. O’Hare, the receiving clerk. O’Hare called three of Higgins’ employees who were going home, their day’s work being completed, and asked them if they would like to make some overtime by assisting in the unloading of the truck. Among these men was Whitney Ducote. O’Hare then told Young to follow him down to where he wanted the material unloaded. When O’Hare reached a point opposite a building under construction, he stopped Young and instructed him to back onto a level road which was álong-side of the building and at a right angle with the main road that the truck was traveling on. Young demurred, stating that he thought the road too soft to bear the weight of the trailer, but he was assured by O’Hare that the road was safe. Young thereupon started backing the trailer on the road when his right rear wheel sunk in a soft spot causing the contents of the trailer to shift and severely injure Ducote’s feet, Ducote in the meanwhile having gotten onto the trailer. The charges of negligence imputed to Young consist in the allegation that he backed from a position of safety onto the soft ground knowing that it was dangerous and in that Young and the other employees of Woodward-Wight & Company failed to properly secure the freight on the trailer to prevent its shifting. Young did not know that Ducote was on his truck. He testified to that effect and there is no evidence to the contrary. Du-cote stated that he did not know whether Young knew he was there or not. He testified that he got on the truck when it was stopped at O’Hare’s office, got off of it when it stopped near the side road and got back on before Young started backing it onto the side road. This procedure strikes us as being most unusual, and it is not explained by Ducote when he says that it was necessary for some one to be on the truck to shift the corrugated iron about in the process of unloading it. Moreover, Du-cote’s testimony is not too reliable as it appears that he made a statement shortly after the accident to an insurance adjuster which differs substantially from his testimony. The charge that Young was negligent in moving from a place of safety to one which he knew to be unsafe is without foundation. It is true that he questioned the solidity of the side road before backing onto it, but when told by O’Hare, Higgins’ receiving clerk, that two trucks had gone over the road that day and that it was safe, he was justified in obeying the instructions of one who should have known much more about the safety of the road than he did. Young testified that O’Hare told him: “ T want you to back in there and unload where they building that building.’ I told him, ‘That road looks kind of bad; I don’t know if it will hold the weight up on it.’ He said, T am sure it will hold it because we had-a couple of trucks go over that road.’ I pulled up a little ways and started back and backed towards the river, and all of a sudden all the wheels ■sunk down in the ground.” Young also testified that he was told by his employer to “take instructions from the people we are making delivery to”. O’Hare admits that he directed Young to back onto the dirt road. In regard to the manner of loading the truck Milo J. Perrier, an employee of Woodward-Wight &' Company, who had been engaged in similar work for seventeen years, testified that he had always loaded the iron in the same way, that is to say, with four stacks, two on each side and a space in the center, just as this truck was loaded. These stacks, according to Perrier, are about 15 inches high and 26 inches wide and are held in place by the deep grooves or corrugations in the iron, in addition to iron bands on each bundle. Moreover, it was not contemplated that there should be any one in the trailer and, if Ducote had waited until the truck had been finally placed or “spotted” before climbing into it there would have been no accident of this character. We do not believe that Woodward-Wight & Company or its employees can be charged with negligent loading of the trailer. Our conclusion is that the judgment of the trial court is correct, consequently, and For the reasons assigned the judgment appealed from is affirmed. Affirmed.

OTT, Judge. Plaintiff is the daughter of Vito Cali and was riding in the wagon with him at the time of the accident, and she claims damages in the sum of $15,000 for physical injuries, pain and suffering, scars and disfigurement; $245 for medical expenses; $640 for loss of salary, and $125 for the loss of clothing, a suitcase, etc. She sued the same three defendants as did her father, and the same disposition will be made of her case relative to the liability of the defendants as was made in the case of Vito Cali, leaving only the question of quantum as to the defendant Newman. Miss Mary Ann Cali is a young lady about 25 years old. Her injuries were about as follows: She received a cut on the left side of her head just back of the hairline in which several stitches were taken. A scar was left from this cut which is clearly visible, but is partly hidden by the hair; she also had other cuts and bruises on h'er face and hands, and on her legs and left knee which have left some scars. The doctor who examined her almost a year after the accident testified that it was difficult to see these scars except at close range, and he thought they would entirely disappear in four or five years. The young lady testified that she had to stay in bed for about a week on account of her neck and bade being sore from bruises. No doctor testified to having treated her injuries, and in our opinion, her injuries were rather superficial, although painful. The trial judge awarded her $2,000 for personal injuries, pain and suffering, scars and disfigurement. We have decided to reduce this item to $1,500. She lost her suit case, some clothes, etc., which she testified were worth over $125, the amount she claims for them. This item was properly allowed. She also testified that she was working at $20 per week and could not work for six months, and she claims $640 for loss of earnings. The trial judge allowed her one-half of this amount, $320, and we think that amount is sufficient for this item. The trial judge did not make her any allowance for medical expenses as none were proved. We think he was correct in disallowing any thing for this item. For the reasons above assigned, and for the reasons assigned in the case of Cali v. Cloverland Dairy Products Company, Inc., et al., La.App., 21 So.2d 166, it is ordered that as to the defendants, Clover-land Dairy Products Company, Inc., and the New Amsterdam Casualty Company, the judgment herein appealed from is avoided and set aside, and this case is remanded to the district court to be proceeded with according to law and the views expressed in the case of Vito Cali; and as to the other defendant, Jimmie Newman, it is ordered that the judgment herein appealed from be amended by reducing the amount of the award from the sum of $2,445 to the sum of $1,945, and as thus amended, the judgment is affirmed.

LE BLANC, Judge. This is a compensation suit in which the plaintiff seeks to recover from the defendant, compensation at the rate of $18.20 per week for 400 weeks on account of total disability arising out of a hernia which he claims to have sustained by accident while at work on January 12, 1944. In addition he asks that he be allowed to recover $250 for medical expenses. He sets out that on the day he claims to have been injured he was in the employ of the defendant Delta Tank Manufacturing Company which was engaged in building large steel tanks. That his work was that of a laborer and while acting in the scope of his employment and engaged in assisting other employees in carrying heavy sheets of steel he suffered an inguinal hernia on his right side. He sets out further that his average weekly earnings at the time of his injury were $28, 65% of which amounts to the rate of compensation he is praying for. He alleges also that he has been compelled to employ doctors to examine and treat him and that he will have to buy a surgical belt or truss, the value of all of which will be the sum of $250. The defendant for answer admitted the employment of the plaintiff on the date on which he alleges he was injured, admits the nature of its business and that it was hazardous, and also admits that plaintiff’s average weekly earnings amounted to $28; but otherwise it denies each and every other allegation of plaintiff’s petition and consequently prays for a dismissal of his suit. Upon reading the testimony it becomes readily apparent that the defendant also admits that plaintiff is, and has been, suffering with a hernia on his right side but strenuously contends that he did not sustain the hernia at the time and in the manner as alleged by him in his petition. Upon trial of the case the district judge was positively convinced that plaintiff had failed to support the allegations of his petition by competent evidence and he therefore rendered judgment against him. On reading the written opinion handed down by him it would seem as though the trial judge did not believe plaintiff’s testimony at all. He commented on the testimony of a witness named Victor Alexander who testified for the defendant and from which the only inference to be drawn is that this plaintiff has tried to trump up this hernia case against the defendant. If it were a matter of choice between his testimony and that of the witness Alexander, we would be inclined to agree with the trial judge but we don’t think that a judgment in the case need rest entirely upon the testimony of either of these two witnesses as we are of the opinion that otherwise plaintiff has failed to prove his case to a legal certainty as he was obliged to do. Plaintiff claims that on the morning on which he was injured he was called from his regular employment in the welding shop to assist in moving some heavy sheets of steel to the shearing machine where they had to be cut. According to him'it took nine or ten men to carry one of these sheets. They moved one without any trouble, but when they put the second one down he says he felt a pain, and in testifying he referred to it by indicating the place on his right side about even with the hip bone. He says that another negro by the name of Edward Knight was handling the sheet near him and he told him at the time “I believe I hurt myself.” Although he says that there were nine or ten men handling the sheet, he only remembers Knight and Victor Alexander by name. He speaks of another called Charlie but apparently did not know his family name. He continues his testimony by saying that he went to the bathroom and sat down for a while; that it pained pretty badly but soon passed away. That he spoke to Mr. Keegler (whose real name is Cagle), meaning no doubt that he gave him the information as one of the foremen on the job, but Mr. Cagle was busy and told him that he would “hear him” when.he came back. The real boss on the job, Mr. Shelton, he says was not there that day. After he returned from the bathroom he went back to work in the welding shop, worked throughout that day, went back to the job the following day until twelve o’clock then went home and stayed in bed that evening. He remained in bed Friday morning and Friday afternoon went to the plant and got his money but did not tell anyone anything about having been hurt. In recalling the first night of the day on which he was injured he says “it pained me right briefly and a knot came out.” Notwithstanding this, as already stated, he went back to work the next day and it was not until the following morning that he went to see a doctor of his own choosing, Dr. H. W. A. Lee. He says that Dr. Lee told him he would have to be operated on so the following day he went back to the plant and saw Mr. Long and told him what had happened and what the doctor had told him, to which Mr. Long replied that he had been standing up in the black-smith shop so long he thought he would put him on the yard, meaning, no doubt, that he would give him lighter duties to perform. He only worked an hour that day and before leaving spoke to a lady, whom he refers to as the secretary, who gave him a note to go back to the doctor, which he did, but Dr. Lee again told him that there was nothing to do for him except to perform an operation. Since then he has never gone back to work and has only performed light jobs such as working in yards, planting garden seeds, etc., for which he was not paid anything. Plaintiff’s testimony is the only one to be found in the record about his injury except for that of Edward Knight, his fellow employee on the job with him, who corroborates his story to the effect that they were both working in the welding shop when somebody came and called them to help in moving these iron sheets to the shears and that after putting the iron sheets down plaintiff said that he believed he had hurt himself. He says it was either Mr. Cagle or Mr. Cox who called them away from their regular work and he also says that Mr. Shelton was not there that day. He says that after plaintiff complained of being hurt he worked the rest of that day and believes that he came back to work the next day. This witness refers to the number of men helping them in moving the sheet of steel but he also does not seem to remember any except the plaintiff, the negro Alexander and himself. He was interviewed by one of the attorneys for the defendant who wrote down his statement and after it was read to him he signed it. In this statement he told the attorney that he and the plaintiff and another colored man were working together, that the three of them picked up a sheet of steel and plaintiff said “I believe I have wrenched my back” and caught himself in the right side with his hand. He was cross-examined with regard to the difference which appears in his statement and what had happened the way he related it on the witness stand, and as far as we can see he has not given any satisfactory explanation for the two different versions. The important difference is with regard to the number of men who were handling this piece of steel for if there were more than three it is a bit strange that no one but he would have heard plaintiff complain about having been hurt, especially as it turns out that the other one of the three, Victor Alexander, says he did not hear plaintiff make any such complaint and if he had told Edward Knight about it he would have heard him because they were right close together. The foregoing constitutes all the testimony produced by the plaintiff to prove that he has sustained a hernia in the manner as set out by him in his petition and the rest of the evidence is practically' all taken up with the expert testimony of the doctors on the question as to whether the hernia is one which may have antedated the alleged date of the accident in relation to the time when these doctors examined the plaintiff. On this point we deem it unnecessary to say more than that whilst these doctors all seem to agree that it is difficult to say exactly how long it may have existed, the preponderance of the testimony is that the hernia was of more ancient’ origin than plaintiff claims it to be. Aside from this is the fact that there is no proof on the part of the plaintiff that he reported the accident to anyone at the plant who might have been over him at the time. He and Knight both testified that Mr. Shelton, who apparently was the foreman to whom complaint should have been made, was not at the plant that day, whereas the proof is otherwise positive that he was there the whole day. The testimony of the witness Alexander, if it is to be believed, is of it self sufficient to defeat the plaintiff’s claim, for in spite of a rather severe cross-examination he stood up to the story he told on direct examination that two weeks before the day on which plaintiff claims to have been hurt he met him on the road and asked him then if he would be a witness for him in a case against the defendant for having ruptured himself while on the job. As we have said the trial judge believed him and we have no reason to say that he was wrong in his appreciation of the weight to be given to that testimony. The point is made that plaintiff was working regularly before and that after this alleged accident in which he says he sustained the hernia, it developed that he did have one and he could not do hard labor any more. It is urged also that not so long before he had worked in industrial employment where medical examinations were required and that he was passed and accepted for hard labor. His word is the only proof on that point as no witness was produced from the source nor was any medical report offered in the record. As against this is the plaintiff’s admission that he was classified 4-F on his examination in the draft and when pressed on cross-examination to say why, and asked directly if it was not because he had a hernia, his counsel pleaded professional privilege and was sustained by the court. We think that the case was properly disposed of in the lower court and for the reasons herein stated it is ordered that the judgment appealed from be affirmed.

FOURNET, Justice. This suit was instituted by the Sugar Field Oil Co., Inc., against Reese E. Carter and against Frank L. Hereford, individually and as the trustee and agent of Carter and his creditors, to recover in solido the sum of $25,000 allegedly due the plaintiff as its commission for services rendered in securing a purchaser for Carter’s properties, in conformity with an oral agreement between the plaintiff and defendants; and, in the alternative, to recover this amount for the services rendered on a quantum meruit basis. Pending a determination of the issues involved, the plaintiff sought a preliminary injunction prohibiting Hereford, individually and as the trustee and agent of Carter and his creditors, from disbursing the assets in his possession as trustee for Carter’s creditors, which were then being held in status quo by him under a temporary restraining order issued by the court. In response to the rule to show cause why the preliminary injunction should not be granted, both defendants pleaded the prematurity of the action because, under the allegations of the petition, it was predicated on the consummation of the sale of Carter’s properties to the Midland Oil Corporation of New York, which sale had never, in fact, been consummated, and averred that the corporation had only been granted an exclusive right to purchase a four-fifths undivided interest in Carter’s properties, which right still existed, it not having been exercised at the time the suit was filed. In support of these pleas the defendant introduced in evidence the agreement with the Midland Oil Corporation dated June 24, 1942, and the testimony of Hereford who said, among other things, that he had received the $65,000 consideration recited in the agreement and that the rights granted the corporation thereunder had not been exercised. The trial judge maintained the pleas of prematurity and denied the preliminary injunction. By agreement of counsel the case was then submitted to the court on the merits on the record as made up and the court, maintaining the pleas of prematurity, dismissed plaintiff’s suit. The plaintiff was granted and perfected an appeal from both of these judgments, devolutively from the refusal to grant the injunction and suspen-sively from the dismissal of its suit. The record discloses that the defendant Carter, who was the owner and operator of certain oil and gas leases and rdineral interests in the parishes of Acadia and Jefferson, became so involved financially that at a meeting of his creditors held in New Orleans in February of 1942, by agreement of all concerned, Frank L. Hereford of Lake Charles, Louisiana, was selected to serve as their trustee and representative. Under this agreement Hereford was given Carter’s note for $225,000, the aggregate amount due the creditors of Carter whose claims exceeded $1,000. This note was secured by a mortgage and pledge covering all of Carter’s assets and revenues. As the trustee Hereford was authorized to release from the mortgage and pledge such properties and assets as Carter might propose to sell for the benefit of the creditors, provided his action in this respect was approved by A. S. Vandervoort, Jr., and Turner Briggs, or either of them. All the revenues derived from Carter’s assets were to be turned over to the trustee, who was to return to Carter a certain amount each month to cover the expenses incurred by him in the operation of the properties. All other proceeds, after deduction of this amount turned over to Carter, were to be expended in paying those creditors whose claims were less than $1,000, the smallest to be paid first. Any additional revenues were to be distributed pro rata among the other creditors in accordance with the amounts of their claims, preferential distribution being made to those creditors holding liens on any particular asset that might be sold, provided Vandervoort and Briggs, or either of them, concurred with Hereford in this respect. The month following this meeting of the creditors, it having become apparent that this solution to the problem was not working out satisfactorily and that it was advisable to sell Carter’s entire property, J. Edward Jones, president and principal owner of the plaintiff corporation, engaged in the acquisition and sale of oil leases, land, roy--allies, and mineral rights, and the development of such properties, was approached with the view of solving the problem. Jones orally advised the defendants Carter and Hereford that he was not personally interested in purchasing the properties but that he would submit the offer to a company founded by him, the Midland Oil Corporation of New York, whereupon Carter and Hereford verbally agreed that if he should procure this company as a willing purchaser they would negotiate and consummate the sale themselves and the plaintiff corporation, represented by Jones, would be given an oil rig and half interest in another such rig if and when such sale was consummated. In conformity with this agreement, Jones immediately contacted the Midland Oil Corporation and subsequently its president, upon the persuasion of Jones, came to Louisiana, where, accompanied by Jones, he inspected all of these properties. Following this Jones was invited by Hereford to attend a conference that was participated in by Carter and the advisory committee. At this conference Jones was urged to waive all right'in and to the rigs and to accept, instead, a fee of $25,000 for his corporation’s services, to be paid out of the proceeds of the sale to the Midland Oil Corporation. From this time on the negotiations with the corporation were handled exclusively by Hereford, representing the creditors, and Carter, without any participation therein by Jones, and Jones was not advised of the. progress being made. A deal was closed on June 24, 1942, whereby the corporation (in return for a cash payment of $65,000) secured an option terminating on May 1, 1943, to purchase a four-fifths interest in Carter’s properties, with the privilege of having the option extended to September 1, 1943, upon the payment of $10,000, and further extended to December 1, 1943, upon the payment of an additional $10,000. Jones became in formed of this fact in August and, his claim having been rejected by the creditors of Carter in December following, he instituted this suit on December 26, 1942. The injunction in this case is sought under Article 303 of the Code o-f Practice providing that “courts of justice may grant injunctions in all * * * cases when it is necessary to preserve the property in dispute during the pendency of the action, and to prevent one of the parties, during the continuance of the suit, from dilapidating the same, or from doing some other act injurious to the other party.” However, under Article 158 of the Code of Practice it is declared: “When the demand is premature, that is to say, when the action has been brought before the debt had become due, the suit must be dismissed, leaving to the party his right to bring his action in due time,” and the further stipulation that "if the obligation be conditional, and its execution be demanded before the condition has been fulfilled” the same imle applies. (Italics ours.) We think, as did the trial judge, that: “The document which has been filed in evidence, evidencing the agreement in this case, is clearly an option and not a sale. There is no obligation on the part of the Midland Oil Company to pay the balance of the agreed purchase price should they decide not to exercise the option, and until the purchase price is actually paid, according to the allegations of the petition, the commission is not due.” Counsel for plaintiff, however, strenuously argued both orally and in brief that the action is not premature as to the alternative demand to recover for the services rendered on a quantum meruit basis and that an injunction should issue to prevent any disbursement of the fund in the hand of the trustee since under the terms of the option agreement the entire amount of the purchase price may be paid before the expiration of the option and disbursed by the trustee among the creditors and the plaintiff’s claim thus defeated while the transaction still remains under the designation of an option. Counsel is in error in these contentions for plaintiff’s right to recover both under the main and the alternative demand is predicated on the consummation of a sale of Carter’s property to the party or firm procured by it. The fact that under the terms of this agreement the entire amount of the purchase price may be paid over to Hereford as trustee for distribution to the creditors of Carter and by him paid to the creditors before the expiration of the terms of the option, thus defeating the plaintiff’s right to collect its claim, does not alter the situation, for the purchase of an option to buy is not the consummation of a sale. We think plaintiff’s own appreciation of its action is an answer to this contention for, in its brief, it is said: "All plaintiff seeks to do by the preliminary injunction sought is to preserve the status quo until the rights of the parties can be determined.” It is obvious, therefore, that the plaintiff was without right to have the funds held by Hereford frozen pending a determination of a claim that, according to the record, did not exist at the time the proceeding was instituted and the injunctive relief sought. The situation might have been different had the plaintiff alleged and shown that the so-called option agreement was a device used for the purpose of circumventing the obligation due the plaintiff and thus defrauding it of the Commission due. (Italics ours.) In its argument the plaintiff further contends that it is entitled to recover on a quantum meruit basis even if the agreement between the corporation and Carter is an option and does not eventually result in a consummated sale because the'service rendered has inured to the benefit of the creditors to the extent of the consideration paid for the option ($65,000). This issue can only arise if and when a suit is predicated on that basis. For the reasons assigned, the judgments appealed from are affirmed. O’NIELL, C. J., recused. PONDER, J., takes no part.

DORE, Judge. On May 30, 1941, George Moy was operating a wheelbarrow loaded with a dan gerous chemical, in the course and scope of his employment by the Schuylkill Products Company. The chemical accidentally exploded and the employee was severely burned by fire resulting from the explosion. He was treated for his accidental injuries from May 30, 1941, to June 21, 1941, and died on the latter date as a direct result of the injuries. At the time of his death, and for five years prior thereto he had been living with one Bessie Veal as his “common law” wife, and he was survived by her, as well as by one ■ Ophelia Moy, to whom it appears from the evidence, he was married in 1928, and two children with Ophelia Moy, one born in 1925, prior to the marriage, namely, Elizabeth Moy, and the other, Bessie Mae Moy, born subsequent to the marriage in 1929. This suit was brought by Ophelia Moy for herself, individually, and for her two minor children, claiming compensation for herself as surviving spouse, and on behalf of the two minor children. The case was tried by Judge Ellis, but the judgment was rendered by Judge Herget. Judge Herget was of the opinion, as set forth in written reasons for judgment, that the plaintiff had failed to show that she or the minor children were living with the decedent within the intendment of the compensation law or that they were dependents within the intendment of the law, and consequently he rendered judgment dismissing the suit. The plaintiffs have appealed. The evidence shows that some time in 1931 the decedent, George Moy, and his wife, Ophelia, who were married in Monroe and had their matrimonial domicile in that city, separated, and that George Moy thereupon went to Winnfield, where he shortly thereafter was convicted of a crime for which he was sentenced to the State Penitentiary for a term of six years. Upon being released from the penitentiary he secured employment in Baton Rouge, and some short time thereafter established his home with Bessie Veal. Shortly after his death Bessie Veal made inquiries of the New Amsterdam Casualty Company, the insurer of the defendant, as to her rights as the “common law” wife of the decedent, and as a result of her inquiries she was interviewed by an insurance adjuster of the insurance company, Mr. J. Stanley Wagner, on March 6, 1942, allegedly in the presence of another adjuster, Mr. Blakey Adams, who handled work for this same company, but who had nothing to do with this particular case. In this interview of March 6th Bessie Veal, according to a written statement prepared by the adjuster, stated that she and the decedent had lived together since July, 1937; that he had been working for the Schuylkill Products Company about three years when the accident happened; that during all the time that she knew and lived with the decedent he did not see or hear from his wife in Monroe and that he contributed all he earned to help defray household expenses for him and herself and kept out only enough money for cigarettes, car fare and incidentals; and that she felt sure that he did not see his wife or send her any money after she and he started living together. Bessie Veal refused to sign this statement when requested to do so. On May 5, 1942, A. Milling Bernstein, Esq., attorney of the firm of Hudson, Potts, Bernstein & Taylor of Monroe, who was and had been representing the New Amsterdam Casualty Company, as attorney, for some 20 years, interviewed Ophelia Moy and wrote a statement giving a gist of the facts elicited from her, in which it is recited that she stated she was married to George Moy in 1928, and lived with him until about 1931, when he went to Winnfield to work, leaving her in Monroe; that they had two children, Elizabeth Moy, born June 25, 1925, and Bessie Moy, born January 10, 1929; that she had heard nothing from George Moy after he went to Winnfield until after he was arrésted and convicted of robbery; that he never came back to Monroe; that she was helped by her brother who lived with her, and that soon after her husband left she went to work for the Monroe Steam Laundry where she has worked ever since, most of the time, for the last seven years; that in 1938 George Moy sent her $5 by mail in the form of a $5 bill; that this was all he ever sent her. Mr. Bernstein states that Ophelia Moy stated that the statement was correct, but that she did not care to sign it. On March 4, 1942, Ophelia Moy, in her own handwriting wrote a letter to the insurance company as follows: “Monroe La March 4 1942 Dear Sir i Receive your letter saying i am not entitled his compensation but he has 2 children 2 girls thir name is elizabeth Moy and Bessie May Moy and they are mindor and i do think you ought to consider then my husband George Moy did supoted the children and i when he live here in Monroe after we parted, but he didnt when he lift Monroe he did not so please Sir informe me at a early date about the children benfit for their Father George Moy i was in Baton Rouge oil the 16 of -Feb. and went to the led plant and talk with them and they told me you had took it in charge and tole me to write you. From George Moy wife Ophelia Moy Children Bessie May Moy and Elizabeth Moy. Monroe, La. 1700 Grommont St. in care of donenport Store Box 793.” At the trial, Bessie Veal who apparently had been subpoenaed by the defendant, was put on the stand by the plaintiff and in her testimony she denied that she ever told adjuster Wagner that George Moy had no contact with his wife, Ophelia, or that he had never sent her any money for her and the children, but she admitted that she had made the other statements contained in the statement, and she stated further that she refused to sign the statement because she felt that the adjuster was trying to double cross her and Ophelia. She even stated that the adjuster had offered her $50 to sign the statement, and she denied having seen Mr. Adams at the time of her interview with Mr. Wagner. In her testimony she went further to say that she knew that the decedent sent money to Ophelia in the form of bills ranging from $5 to $25 at divers times during the years she was living with him and that she herself had on six occasions written the letters for decedent enclosing the money. She testified further that during the first or second week of May, 1941, George Moy sent $10 to Ophelia and requested her to come to Baton Rouge for the purpose of discussing a divorce, and that accordingly Ophelia came on a Saturday and slept in the same bed with George Moy on Saturday and Sunday nights of that week-end in Bessie Veal’s house for the aforesaid purpose, and that as the result of these discussions George Moy and Ophelia decided to become reconciled, and Ophelia was told to go back to Monroe until George could find a house for her and the children, at which time George would send for them; but that before this could be accomplished, George Moy suffered his fatal accident. In the interim, George Moy continued to live with her, because she felt sorry for him, and sympathetic with Ophelia. Ophelia testified to the sanie effect as Bessie Veal and also denied having stated to Mr. Bernstein that she had not seen George Moy since he left Monroe for Winnfield and that all she had ever received from him was $5 sent in 1938. She did admit the other statements contained in Mr. Bernstein’s written statement. She testified, as did Bessie Veal, that she received money from George Moy during the last few years of his life, ranging from $5 to $25, and she repeated the story about visiting George Moy at Bessie Veal’s house during the second week of May, 1941, and also stated that while George Moy was employed in Winnfield he would come to Monroe about three times per week to see her and the children. She explains her letter to the insurance company to the effect that she was not being supported by her husband by stating that she meant she was not getting full support, although she was getting contributions from him all along for herself and the children. The other evidence of the plaintiff, on the question of dependency, consists of the testimony of Mr. Davenport, a grocer in Monroe in whose care Ophelia received her mail. In that connection it may be noted that in her letter to the insurance company Ophelia gives her address as “in care of donenport Store” at his address. Mr. Davenport testified that he had seen letters addressed to Ophelia bearing George Moy’s return address, and that he recalls definitely having seen her open one such letter in 1939 in which was contained a $5 bill, and another such letter around Christmas, 1940, containing $25 in bills. The witnesses for the defendants were Messrs. Wagner and Adams and Attorney Bernstein, who testified that the statements obtained by them, although not signed by Bessie Veal and Ophelia Moy, were true statements of the information given at the time they were made. Messrs. Wagner and Adams definitely denied having offered any money to Bessie Veal to obtain her signature, and on the contrary, testified that Bessie Veal had requested money, and that upon being told that she could not be paid, she refused to sign the statement. There are two questions to decide from the evidence in this case: first, whether or not the decedent and his wife had become reconciled during the last year.of his life, and, second, whether or not he contributed any support to his wife or to his children during the last year of his life. Obviously, in view of the circumstances brought out by Ophelia Moy and Bessie Veal, it is difficult to believe that a reconciliation occurred between decedent and Ophelia Moy during the second week in May. Moreover, it becomes even more difficult to believe the story of Bessie Veal and plaintiff with reference to this reconciliation when we consider the fact that decedent had his fatal accident on May -30th and died on June 21st, the plaintiff was not notified of the accident nor of the death. Bessie Veal attempts to explain the failure to notify plaintiff of these important events in the life of her reconciled husband by stating that she requested those in charge of the hospital where decedent was taken to notify the plaintiff, but later in her testimony she qualified her statement by saying that she was so upset and confused that she is not sure of having made such a request. This same Bessie Veal testified that even prior to the alleged reconciliation she had on several occasions written letters and sent mpney to Ophelia Moy on behalf of the decedent, and it is difficult to believe that during the decedent’s stay in the hospital of some 22 days she would have remained in such a confused state of mind to the extent of being unable to write Ophelia about the accident. It further appears that plaintiff had no news of the accident and death of her husband until in September, some three months after the accident, when two of the decedent’s friends informed her thereof. It appears very strange, had a reconciliation occurred in the first part of May and had it been true that in accordance with this reconciliation George Moy was supposed to send for his wife Ophelia and their children, that she would have been content to remain silent during this period of approximately four months when no news, much less contributions of support were received by her from decedent. It is our opinion, not only that the evidence fails to show a reconciliation between Ophelia May and George Moy, but further that the evidence fails to show that George Moy was contributing during the last year of his life, an even partial support to Ophelia Moy or the children, as contended by counsel for plaintiff. While it is probable that the decedent did send his wife $5 in 1939, and $25 as a Christmas present in 1940, that these were merely gifts and cannot be considered to have been a contribution towards their support, and it seems clear from the evidence that Ophelia Moy was not counting or depending on the decedent in any manner for assistance in supporting her children. Furthermore, the evidence preponderates to the effect that George Moy’s main interest in life was Bessie Veal, and it is shown that for a year prior to his death his weekly wage was only $16.35 and that with this wage he had to support and clothe himself an4 his concubine, pay the rent on the house in which they lived, and make partial payments on an automobile, radio and stove. These facts not only show decedent’s devotion to Bessie Veal and not to Ophelia Moy, but also show decedent’s inability to have provided even partial support for Ophelia Moy unless he had given up his life with Bessie Veal. These facts also indicate that Bessie Veal told the truth when she made her statement to Mr. Wagner to the effect that during her relationship with George Moy he did not see or hear from Ophelia Moy, nor send her money and that he “contributed all he earned to help defray the household expenses and kept out for him enough for cigarettes, car fare and for incidentals”. Suffice it to say that under the evidence in this case, we are of the opinion that plaintiff has failed to bear the burden of proof showing dependency of herself and the two minor children on the decedent within the purview of the compensation statute and for that reason the judgment appealed from is affirmed.

McCALEB, Judge. On September 18th 1942, at about 6 p.m., plaintiff’s Dodge automobile was being driven by her niece, Mrs. Roger D. Honeycutt, on U. S. Highway No. 90, between Paradis and Harvey, Louisiana. Due to the fact that it began to rain at that time, Mrs. Honeycutt stopped the automobile on the right hand or proper side of the road, in order to adjust the windshield wiper which was not operating efficiently. While thus stopped, the car was struck a violent blow from the rear by a truck owned by defendant and operated by his employee, Percy Bowers. As a result of the impact, the Dodge car not only received severe damage to its rear but the blow struck by the truck was of such force that it propelled the Dodge forward and towards the left of the highway causing it to be struck in its front by another truck which was proceeding in the opposite direction. Alleging that the accident was <due solely to the fault of defendant’s truck driver and that, as a result thereof, her car has been damaged to such an extent that it is a total loss, plaintiff brought this suit against defendant to recover damages in the sum of $1,792,501 The alleged damages are itemized as follows: $900, representing the value of the Dodge automobile; $840 for expense incurred by plaintiff in making 28 trips to and from Grand Isle and Gretna in performance of her official duties as Justice of the Peace and $52.50 for storage of the wrecked automobile from the date of the accident to the filing of the suit. Defendant admits the happening of the accident but resists liability on the grounds (1) that plaintiff is not the owner of the Dodge automobile; (2) that the accident resulted as a consequence of the negligence of Mrs. Honeycutt, in that she brought the Dodge car to a sudden stop on the highway, which was wet, at a time when she knew that the truck was travelling at a reasonable distance to the rear and without giving the truckdriver any warning or opportunity to stop the forward movement of the truck and, (3) in the alternative, that Mrs. Honeycutt was guilty of contributory negligence, barring plaintiff’s recovery because the former was acting as her agent at the time of the accident and was engaged on a mission for her account. After a trial in the lower court on the foregoing issues, there was judgment in plaintiff’s favor for the entire amount of damages claimed in the petition. Defendant has appealed, contending that the judgment is erroneous for the reasons set forth in his answer and that, at all events, the damages awarded to plaintiff are highly excessive. We do not find that it is necessary to discuss in detail defendant’s contention that his truck driver was without faul't in the premises as a mere statement of the circumstances under which the accident occurred makes it manifest that it would have never happened if the driver of defendant’s truck had exercised ordinary care. The record shows that defendant’s truck ran into the rear of the Dodge automobile, in broad daylight, while the latter was stopped upon the highway. Under such conditions, the burden of proof was upon defendant to exhibit, by a clear preponderance of evidence, that his employee was free from fault. See Loprestie v. Roy Motors, 191 La. 239, 185 So.. 11; Overstreet v. Ober, 14 La.App. 633, 130 So. 648, and Muhleisen v. Eberhardt, La.App., 21 So.2d 235. This, he has failed to do. In fact, the truck driver’s evidence shows that he was grossly negligent. He says that he had been following the Dodge automobile for about three miles prior to the collision at a speed of 35 miles per hour; that the driver of the Dodge suddenly brought the car to a stop at a time when the truck was 150 or 200 feet to its rear; that he attempted to pass to the left of the Dodge but was unable to do so due to the presence of another truck which was coming from the opposite direction and that, when he discovered that he would be unable to pass, he swerved to the right and onto the shoulder of the roadway where the tractor connected with his truck became uncoupled and struck the rear of the Dodge car. He further explains that he was unable to stop the truck due to the suddenness of the stop made by the driver of the Dodge and the slippery condition of the highway. These explanations of the truck driver furnish no legal excuse for the results of the accident. He was travelling about 200 feet to the rear of the Dodge and, even if it stopped suddenly (which is contrary to the statements of Mrs. Honeycutt and the two other occupants of the Dodge), there is no valid reason why he should not have had his truck under such control so that it could have been brought to an adequate stop short of a collision. Defendant’s plea of contributory negligence on the part of Mrs. Honeycutt is, likewise, not tenable. In the first place, we are convinced that her testimony (which is corroborated by the evidence of the two ladies who were passengers in the Dodge) to the effect that the car was brought to a gradual stop, prevails over the truck driver’s statement to the contrary. Furthermore, even though we should assume that Mrs. Honeycutt was at fault in some particular, her negligence could not be imputed to plaintiff since she had borrowed the car for the purpose of visiting her doctor and was not engaged upon a mission for plaintiff either as agent or employee. Defendant also contends that the district judge erred in holding him responsible for the reason that plaintiff has failed to prove that she is the legal owner of the Dodge automobile. Plaintiff testified that she is Justice of the Peace for the Sixth Ward of Jefferson Parish; that the Dodge automobile was purchased for her account from Collard Motors of New Orleans for $1,200 during April of 1940 by one Reginald C. Schutten; that, although it was purchased in Schutten’s name, it was, in truth, her personal property; that title to the car was placed in his name for purposes of convenience as she did not want her political constituents to know that she owned it and that she not only paid the down payment on account of the purchase price but all subsequent installments which were due the mortgagee thereof. In sup port of her testimony, she produced a hill of sale, dated May 13th 1940, wherein Schutten appears to have transferred title of the vehicle to her. In addition, she introduced in evidence a certificate of registry of the Motor Vehicle Bureau of this State for the year 1940 showing registration in Schutten’s name and, on the rear thereof, a transfer of ownership, signed by him, in her favor. The only evidence offered by defendant on this question is a registration application for the Dodge for the year 1942 which was filed with the Motor Vehicle Bureau in the name of Schutten. And counsel for defendant postulate that, since the car has always been registered in Schut-ten’s name, plaintiff is estopped from claiming ownership thereto. We cannot perceive the relevancy of the doctrine of estoppel to the issue of plaintiff’s ownership as that doctrine pertains only to cases where the party invoking it has been prejudiced by the representation of another. It is difficult for us to discern that defendant has suffered any injury by reason of the fact that the car was registered in Schutten’s name. The judge of the district court evidently believed the plaintiff and we, on our own part, are convinced that she is the real owner of the car. Counsel for defendant nevertheless persist that, since plaintiff failed to produce Schutten to testify in her behalf, it is to be presumed that, if he had testified, his evidence would have been unfavorable to her. But, in invoking the benefit of this well-recognized rule, counsel assume that Schut-ten was a material witness within plaintiff’s control and that it was necessary for her to produce him in order to establish her title to the car. In so doing, they overlook the fact that plaintiff has produced a bill of sale of the car by Schutten to her and that she testified that the signature of Schutten was real. In such circumstances, it would be improper to require her to have produced Schutten in order to avoid the penalty of having the court presume that his testimony would have been unfavorable. If defendant doubted the veracity of plaintiff’s statement or the genuineness of the bill of sale, he should have summoned Schutten to impeach her evidence. Finding that defendant is liable, there remains only to consider whether the damages awarded by the trial court are excessive. Plaintiff claims that the Dodge car has been damaged to such an extent that it is a total loss and she alleges and testifies that the value of the car, at the time of the accident, was $900. The evidence shows that the car was originally purchased from Collard Motors for $1,200 in April, 1940; that it was over two years old at the time of the accident and that it had been driven 43,000 miles. Plaintiff pro-_ duced, in support of her claim that the car is damaged beyond repair, two experts— namely, Jacob Giardina and H. Trapp, who are engaged in the business of repairing and selling motor vehicles. Mr. Giardina testified that he made an estimate of the damage sustained by the Dodge automobile during 1944; that the necessary repairs would cost $880; that it would be impossible to have the work done for the reason that certain indispensible parts were unavailable due to the War and that, even if it could be repaired, it could not be restored to its previous good condition. Mr. Trapp, who is Salesmanager for Leson Chevrolet Company of Gretna, estimates that the cost of the necessary repairs to the Dodge would be $835 and otherwise corroborates the evidence of Mr. Giardina. Neither Mr. Giar-dina nor Mr. Trapp gave their opinion respecting the value of the car at the time of the accident, nor did they state its value in its damaged condition. On the other hand, defendant produced Mr. Robert M. Umbach, owner of OK Radiator and Sheet Metal Works of New Orleans, who has been in the business of repairing and rebuilding wrecked automobiles for about 25 years. He testified that he examined the Dodge Sedan on May 3rd, 1944, and that he estimated that the necessary repairs to the car would cost $300; that these repairs would have taken about 15 days to complete and that he believed that, had the job been done, the car would have been restored to its previous good condition. He further stated that the market value of the car, at the time of the accident, was $750 which was $75 higher than the value shown in the “Blue Book”, which is generally accepted in the automobile business as setting forth the true and sound standard of values of used vehicles; that the car, in its damaged condition immediately after the accident, had a salvage value of $250 and that, as of May 1944 when he made his estimate, its sales value had increased to $475. Mr. Umbach further stated that, as of May 1944, due to labor costs, the repairs could not be made for less than $400 and he admits that it would have been impossible to have made the repairs at that time because certain parts could not be obtained due to wartinje shortages. Considering the foregoing testimony as a whole, we are of the opinion ■that plaintiff has established with reasonable certainty that the car was so badly damaged that it could not be restored to its previous good condition. In these circumstances, she had the right to treat the car as a total loss and sue for its value as of the time of the accident. The question, therefore, arises as to the value of the car before the collision. The only expert evidence on this question was given by Mr. Umbach, who states that it was worth $750. And, while it is true that plaintiff considers that the car was worth $900, her opinion cannot be accepted as she is not engaged in the automobile business and has no knowledge respecting the values of used cars. In addition to this, plaintiff is not entitled to recover the full value and also retain the car in her possession — for, since it is shown that the car had a salvage value of $250 immediately after the accident, she would be able to profit rather than be reimbursed for the consequences of the collision. Therefore, allowance of a credit must be made to the defendant for the salvage value of the automobile. Defendant contends that, since Mr. Umbach testified that the salvage value of the car had increased from $250 in September 1942 to $475 in May 1944, the latter figure should be allowed as a credit against the claim of plaintiff. This proposition is without merit for the reason that damages recoverable in cases such as this are the amount of plaintiff’s loss which is the value of the car prior to the accident. If the wreck has a salvage value, the amount thereof must be deducted but, in ascertaining this amount, the value immediately after the accident will be allowed and not the sum for which the damaged vehicle might be sold at a subsequent date. Since the testimony shows that the car had a value of $750 prior to the accident and that its salvage value in its damaged state was $250 in September 1942, plaintiff is entitled to recover the difference between these figures, or the sum of $500. The next item claimed by plaintiff is the sum of $840 for the expense incurred by her in making trips to and from Grand Isle and Gretna in the performance of her official duties as Justice of the Peace. The theory upon which this claim is based is that, as a consequence of the accident, plaintiff was deprived of the use of her car and was required to hire a taxicab, at a price of $30 per trip, on twenty-eight different occasions to go to Gretna from Grand Isle for the purpose of interviewing the sheriff and other parish officials. The trips, says plaintiff, were regularly made each week by her from the date of the accident to the time suit was' filed. Counsel for defendant maintains that the judge was in error in permitting recovery of this item of alleged damage for the reason that, even if the trips were necessary, the expense thereof does not form an element of recoverable damages under our jurisprudence. In support of this contention, counsel cite the cases of Adams v. Bell Motors, Inc., 9 La.App. 441, 121 So. 345; Burrage v. Tri-State Transit Co., La.App., 149 So. 125; Maggio v. Bradford Motor Express, La.App., 171 So. 859; and Sherwood v. American Railway Express Co., 158 La. 43, 103 So. 436. The Sherwood case is inapplicable because, there, the damaged car was not considered to be a total loss. The court merely held that plaintiff was entitled to recover the costs of the necessary repairs to the car, together with the actual expense occasioned by its loss of use during the time required for its repair. Conversely, the Adams and Burrage cases are directly in point. In the Adams case, the question presented was whether a plaintiff; who sued for the value of his car on the theory that it was totally destroyed in an accident, could recover, in addition to the value of the car, the expense which he had been compelled to defray for hiring another car to carry on his business. The court rejected the claim on the ground that such expense is not recoverable in cases where claim is made for the total destruction of the automobile. It said [9 La.App. 441, 121 So. 347]: “One who recovers the full value of a chattel destroyed through the negligence of another cannot recover for the value of the use thereof after same was destroyed. The measure of damage in such cases is the value of the property destroyed.” Blashfield’s Cyclopedia of Automobile Law, Vol. II, page 2004, and numerous cases from other states are cited by the court in support of this view. The decision in the Adams case was rendered by our brethren of the Second Circuit and was later followed by the same court in Burrage v. Tri-State Transit Co., supra. We are in accord with the principle maintained in the Adams and Burrage cases. Those decisions are premised upon the theory that, when plaintiff is reimbursed for the value of his car, he has been fully compensated for his loss and that, since the car is a total loss, he cannot be permitted to claim additional damages which result from the deprivation of use of a chattel which can never be used again. On the other hand, it is equally well recognized that, if the damaged vehicle can be repaired, the injured party may, in addition to reimbursement for the costs of the repairs, recover the actual expense he has defrayed resulting from the deprivation of the use of the car during the time within which the repairs are being made. See Sherwood v. American Railway' Express Co., supra, Adams v. Bell Motors Inc., supra, and other cases. In view of this, we believe that there is, and should be, another sound principle which is applicable in cases of this type — that is, in case there may be doubt as to whether the damaged vehicle can be repaired, plaintiff should be permitted to recover for the loss of use of the car for the interval during which he is considering the nature of the damage and ascertaining whether the vehicle can be restored to its former condition. This court has inferentially approved this principle in Maggio v. Bradford Motor Express, supra. There, we recognized that a reasonable time should be given to the owner of the damaged car within which to determine whether the automobile can be repaired and that the expenses, which he is compelled to defray during this interval of time resulting from his loss of its use, are recoverable. Thus, in that matter, we permitted the plaintiff to recover the sum of $10 which represented the expense which he had defrayed for the rental of another automobile at $1 per day in pursuance of his business. This allowance was limited to ten days due to the fact that plaintiff purchased a new car within ten days from the time his car was demolished. Applying the ruling in the Maggio case to the facts of the case at bar, it is clear that, if plaintiff had been diligent, she could have easily determined, within a short period of time from the date of the accident, that the Dodge automobile could not be restored to its former condition. It was her duty to minimize her damage and it is certain that she could not abandon the wreck and expect to recover damages from defendant for the loss of use of her car for an indefinite period. Since we think that she could have easily ascertained, within a week or .two, that the car was damaged beyond repair, we feel that her damage for loss of use of the vehicle should be restricted to two trips from Grand Isle to Gretna and return at $30 per trip, or the sum of $60. The next item claimed by plaintiff is $52.50 for storage of the damaged automobile from the date of the accident to the filing of the suit at 25^ per day. What we have said with respect to her claim for loss of use of the car applies with equal force to this item. Since plaintiff failed to tender the damaged car to the defendant within a reasonable time after the accident, say 14 days at the most, her claim for storage will be limited to 25‡ per day for that period, or $3.50. For the reasons assigned, the judgment appealed from is amended by reducing the amount thereof to $563.50 and, as thus amended, it is affirmed. The costs of this appeal are to be paid by plaintiff and ap-pellee. Amended and affirmed.

HAMITER, Justice. The loss of the sight of his right eye was sustained by plaintiff, John B. Laine, while in the employ of defendant, Hugh Junca, the business of whom is that of operating a large farm in St. Mary Parish; and for the loss he seeks an award of compensation under the specific injury provisions of the Louisiana employer’s liability statute, Act No. 20 of 1914, as amended. The accident occurred as plaintiff attempted to drive some mules from defendant’s main stable lot into a nearby catch-pen (an enclosure used in the harnessing of the work animals), the snapper or cracker at the end of the whip he was using having struck his eye. The district court, after a trial of the merits, rejected plaintiff’s demands and dismissed the suit. On an appeal to the Court of Appeal that judgment was affirmed. 16 So.2d 85. The case is before us for consideration on a writ of certiorari or review granted principally because of the insistence of plaintiff’s counsel, in his application for the writ, that both of those courts had incorrectly applied the law to the facts found by them. In his brief on the instant hearing he declares: “We are not asking Your Honors to pass upon the facts, but we are merely asking Your Honors to decide, whether or not, under the law, because of the facts established, plaintiff, Laine, is or is not entitled to the relief which he seeks, * * Defendant did not raise by his pleadings the question of whether or not his business was of a hazardous nature under the employer’s liability statute. He offered only the defense that plaintiff was not employed to drive the mules from the stable lot into the catch-pen, and that, therefore, the injury did not arise out of his employment ; and it was on the issue thus created that the case was tried. From the evidence adduced, which was exceedingly conflicting, both the District Court and the Court of Appeal found that plaintiff was not employed to drive the mules into the catch-pen and had never before the accident attempted to perform a task of that kind; that under his employment no duty required him to be in the location he occupied when injured; and that it was unnecessary for him to assist in the driving since the person regularly in charge of the animals was present at the time and was meeting with success in his efforts to pen them. And those courts concluded that as the act of plaintiff when injured was in no manner authorized by or beneficial to his employer the injury did not arise out of the employment. The mentioned finding of fact is sustained by the record to which, including the transcript of testimony, we have given careful and thorough consideration; and the announced conclusion of law is supported by the jurisprudence of this state. This court in Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21, declared: “In determining, therefore, whether an accident ‘arose out of’ the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the place of the accident at the time the accident occurred?” This rule was cited and approved in the later cases of Harvey v. Caddo DeSoto Cotton Oil Company, Inc., 199 La. 720, 6 So.2d 747, and Nesmith v. Reich Bros. et al., 203 La. 928, 14 So.2d 767. Applying the suggested test to the instant case it may be said that possibly plaintiff when injured was not merely pursuing his own business or pleasure, but that he was, of his own volition, attempting to aid his employer; however, it is clear and certain, as above pointed out, that he was not reasonably required by the necessities of his employer’s business to undertake to drive the mules into the catch-pen. Therefore, it can only be concluded that the accident causing the injury did not arise out of the employment. Counsel for plaintiff relies strongly on Dartez v. Sterling Sugars, Inc., 7 La.App. 414, in which recovery was allowed, he contending that the facts therein were almost identical with those of the instant controversy. The cases can be distinguished in that there the services being performed by the employee when killed were those customarily rendered from time to time by him, and by others occupying a similar status, with the approval of the employer. Of the numerous other cases cited in counsel’s brief, we notice that in those involving the question under consideration and in which compensation was awarded the requirements of the rule or test given in the Kern case, supra, were fully satisfied. For the reasons assigned the judgment of the Court of Appeal is affirmed.

TALIAFERRO, Judge. In this suit Mrs. Bertha Hamilton, individually and as natural tutrix of her three minor children, Roy, Margie and Marvin Hamilton, alleging ' total dependency for support upon her son, Earl Hamilton, killed while working for his employer, Big West Drilling- Company, a co-partnership, seeks to recover compensation of the employer’s insurer, Consolidated Underwriters, for three hundred weeks at the rate of $20 per week, less payments of $3 per week made regularly since the son’s death. In limine, defendant filed exceptions of no cause and no right of action leveled against the alleged right of the brothers and sister to recover compensation of any character since their mother was living and. was being paid compensation; and a plea of prematurity against the suit of the mother, predicated upon the assumption that she was being paid all compensation due her under the Employers’ Liability Act. The exceptions and the plea were overruled, and reserving its rights thereunder, defendant answered. The pleadings tender but two questions for decision, to-wit: 1. The character of dependency for sup port of the mother and brothers and siste • upon the earnings of the deceased at the time of the accident and of his death; that is, whether such dependency was total or partial. 2. In either case, does the mother’s right to demand and receive compensation for herself individually exclude the minors from so doing? The court decided and held that the mother and her named children were totally dependent for support upon the deceased son at the time of the accident and of his death; and that the mother had the legal right to recover compensation as tutrix for and on behalf of said minors in addition to that due her -individually. Judgment for plaintiff was rendered as prayed for. From this judgment defendant prosecutes the present appeal. Earl Hamilton 'was twenty-three years old when he met death, and was not married. His father died in 1934. Mrs. Hamilton did not remarry. At the date of his death the father owned a hill farm of forty acres, which, at that time and since, has been occupied by the mother and her children. The deceased son lived continuously in the family home except for the period of his service in 1941 in the Civilian Conservation Corps, and while employed in the latter part of 1942 and the early part of 1943, some two months, in the City of Monroe, Louisiana. Due to the distance from his home while employed in Monroe he boarded there. At no time did he evince a purpose to nor did he, in fact, abandon the family home as a place of permanent abode. He invariably returned to it after each temporary absence. In the year 1942 he cultivated the open land of the forty acre tract for the family benefit. The land was not 'cultivated in 1943 excepting some small patches. While the deceased son was in service in the Civilian Conservation ¡Corps the government paid him $30 per month, $21 of which was sent to his mother and used toward supporting herself and the dependent members of the family. While working in Monroe semi-monthly he returned home and gave his mother amounts in cash for the family’s support, such contributions, in view of the smallness of his salary, reflecting a liberal disposition on his part toward those who looked to him for subsistence. He had been working for the drilling company two months when killed. His wages were $8 per day. The testimony discloses that while so employed he lived at home and would daily go to and return from the scene of his work. He contributed to the family support between $75 and $100 per month, and, in addition, frequently brought home groceries. The record is barren of any testimony that in the remotest degree negatives the contention of total dependency advanced by the plaintiff individually and as tutrix. On the contrary, the record affirmatively sustains that contention. As, under the Employers’ Liability Act, dependency for support to any extent of a mother and/or sister or brother upon the earnings of a deceased son and brother, is not presumed, of necessity such relations carry the onus of proving dependency in whole or part as a condition precedent to recovery of workmen’s compensation. That burden has been met in the present case. Defendant contends that because Earl Hamilton did not contribute the entirety of his monthly wages to his mother she was only partially dependent upon him for support, and to support this position, relies upon the provisions of Subsection 2 of Section 8 of the Employers’ Liability Act, Act No. 242 of 1928, p. 386, which prescribe the method by which compensation payments in a case of partial dependency are determined. It is argued, in these circumstances, that $3 per week is the maximum amount due Mrs. Hamilton individually. We do not think defendant’s position sound. It is easy to perceive that if the law on this issue were as contended, absurdities and injustices could and would result. The present case forcefully illustrates this. To so construe the pertinent beneficent provisions of the Employers’ Liability Act would do violence to obvious reasons motivating their adoption by the law making power. It suffices if the mother is dependent upon the son and receives from him a respectable amount from his earnings to provide her subsistence. Defendant argues that the case of Chau-vin v. American Mutual Liability Insurance Co., decided by the Orleans Court of Appeal and reported in 17 La.App. 187, 134 So. 450, sustains its contention. The case is not in point. That suit was instituted by the mother and two sisters of Louis Chau-vin to recover compensation on account of his death. The suit of the sisters was abandoned at the beginning of trial. It Was alleged and proven on trial that the mother was only partially dependent upon the deceased son for support. These facts clearly differentiate that case from the instant one. The exceptions of no cause and no right of action are based upon paragraphs 7 and 8, Division (E), Subsection 2, Section 8 of the Employers’ Liability Act, Act No. 242 of 1928, p. 387, which, with the preamble, so far as pertinent, read: “Payment to such dependents shall be computed and divided among them on the following basis. ‡ ‡ * ‡ * ‡ “If there be neither widow, widower, nor child, then to the father or mother, thirty-two and one-half per centum of wages of the deceased. If there be both father and Mother, sixty-five per centum of wages. “If there be neither widow, widower nor child, nor dependent parent entitled to compensation, then to one brother or sister, thirty-two and one-half per centum of wages of deceased, with eleven per centum additional for each brother or sister in excess of one.” It is argued that the words “nor dependent parent entitled to compensation”, when studied in the light of the context, have the effect of barring brothers and sisters from claiming compensation if there exists a dependent parent entitled thereto. This construction of this portion of the statute is correct, and if there were no other provisions therein on the subject the mother’s right to compensation would undoubtedly exclude the dependent brothers and sisters from claiming any. It was held by this court in Kirby et al. v. Crystal Oil Refining Corporation, 11 La.App. 562, 123 So. 432, that the dependent father only was given a right to recover compensation on account of the death of a son, the mother having previously died. The dependent sister’s suit for compensation was rejected. The court specifically held that the provisions of Act 85 of 1926 were controlling of the question; not those of Act 216 of 1924. In this case, however, the contention was not made that the deceased was a member of the family composed of himself, his father and sister, who were totally dependent upon him for support.. But appellees argue that the following provisions of the Employers’ Liability Act should and do prevail over those quoted above, relied upon by appellant, to-wit: 1. Subsection 2 of Section 8, Act No. 242 of 1928, p. 386, which reads: “For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided, for a period of three hundred weeks.” 2. That portion of paragraph (D), Subsection 2, of Section 8 of the Employers’ Liability Act, Act No. 242 of 1928, p. 386, which reads as follows : “No person shall be considered a dependent, unless he is a member of the family of the deceased employee, or bearing to him the relation of husband or widow, or lineal descendant or ascendant, or brother or sister, or child.” And they cite as favoring their position Archibald v. Employers’ Liability Assurance Corporation, 202 La. 89, 11 So.2d 492, 493. In the present case the deceased brother admittedly was a member of the family with whom he lived; in addition the claimants for compensation on account of his death are his mother, brothers and sister, blood relations. Therefore, all of them within the meaning of this provision of the statute may be denominated “legal dependents” of the deceased if the facts warrant fixation of that status. We have so found. In addition to being a member of the family, in reality the deceased son’s relation to, for all legal intents and purposes, was that of head. He was the bread winner and to him the mother, brothers and sister looked, not for luxuries, but for the necessities of life. He met the responsibility squarely and discharged it. In the Archibald case, supra, the court quoted and considered the several provisions of the Employers’ Liability Act that we have above quoted. In that case the father-in-law, mother-in-law and two sisters-in-law of the deceased sued for compensation, alleging total dependency for support upon the earnings of the deceased. The District Court sustained exceptions of no cause and no right of action. This judgment was affirmed by the Orleans Court of Appeal, but both judgments were re versed by the Supreme Court under writ of review. The case was remanded for further proceedings. Justice Ponder, as the organ of the court, in that case held that the deceased workman was a member of the family composed of his father-in-law, his mother-in-law and two sisters-in-law, and, as disclosed from the face of the petition, each was dependent upon the deceased for support at the time of his death, compensation was recoverable by them. We think that case decisive of the present one. In fact, the present case is much stronger for the compensation claimants than in the Archibald case. It would be quite inconsistent and certainly contrary to the underlying philosophy of the Employers’ Liability Act to hold that under the general provisions thereof the dependent “in-laws”, constituting the family of a deceased workman, could recover compensation on account of his death and in the same breath deny that right to blood relations, such as sisters and brothers, under eighteen years of age, who likewise were members of the family and were dependent for support upon the earnings of a deceased brother. In the Archibald case the court repeated the canon of interpretation uniformly followed by the courts of this state with regard to the Employers’ Liability Act, in this language: “It is well settled that the Workmen’s Compensation Act is to be liberally construed with the view of carrying out its purpose. Undoubtedly, the Legislature intended to allow compensation to those who were dependent upon an employee for support.” It also said: “In subsection 2 of Section 8 of the Act, as above, quoted, compensation shall be paid to the legal dependents of the employee actually and wholly dependent upon his earnings for support at the- time of his accident and death. The determination of who are to be regarded as legal dependents of an employee must be ascertained from the Act itself. “The legal dependents designated in the statute are members of the family of the deceased employee, or persons hearing to him the relation of husband, widow, lineal ascendant or descendant, brother, sister, or child, who were dependent on him for support at the time of his death. “The plaintiffs’ right to recover compensation rests entirely upon whether or not they are dependent members of the family of the deceased employee within the meaning of the Act. * * * ” For the reasons herein assigned, the rulings of the lower court on the exceptions and plea are approved and the judgment appealed from is affirmed with costs.

JANVIER, Judge. Dixie Homestead Association held a vendor’s lien and mortgage on property of Charles W. Sherwood, who had obtained a fire insurance policy on the building located on the property. This policy was issued by Federal Union Insurance Company, and attached to it there was a clause to the effect that in case of loss by fire the insurance money would be payable to the Dixie Homestead Association, as holder of the mortgage, up to the extent of the debt due it. The building was partially destroyed by fire and the loss was adjusted at the agreed sum of $2540.40, and the insurance company issued its draft for that amount payable to Sherwood and the Homestead Association jointly. Sherwood endorsed the draft and turned it over to the Homestead Association with instructions to deduct the amount due it under its mortgage claim, and to return to him the balance. The mortgage claim amounted to $943.31 and this was deducted by the Homestead Association from the proceeds of the draft. The Association then deducted from the balance in its hands $231.-40, which it now alleges was claimed by Alex L. Redden, architect, as a fee for assisting in the adjusting of the fire loss. After paying the balance to Sherwood, the Association deposited this sum, $231.40, in the registry of the Civil District Court and called upon Redden and Sherwood to assert their respective claims to the said money. In so doing the Association claims to have acted under authority of Act 123 of 1922, which in Section 1 provides: “* * * that whenever any person, firm, partnership, corporation, or association of persons shall be in possession of any money, which is claimed by two or more persons, or upon which two or more persons are claiming a lien or privilege, then such person, firm, partnership, corporation, or association of persons holding said money, may deposit the same in the registry of the District Court having jurisdiction, and shall thereafter be relieved of all liability for the payment of said money on complying with the requirements hereinafter set out.” To the petition of the Homestead Association, Sherwood filed exceptions of no cause of action and no right of action. These were overruled and Sherwood then filed a petition in which he alleged that the money deposited was the “change” due him from the draft which had been collected by the Homestead Association; that he had endorsed the draft and had delivered it to the said Association with instructions to deduct the amount due it under the mortgage and to then turn the entire balance over to him, and that the said Association was without any right whatever to withhold and deposit in court any part of the money collected by it on the said draft. To this petition Sherwood attached a prayer that the Homestead Association be cited to appear and answer, and that there be judgment in his favor and against the association. The Association filed exceptions to this petition of Sherwood based on the following grounds: “That there is no such procedure as set forth in said petition known to the laws of Louisiana. “That there is a suit pending between the same parties for the same cause of action and involving the same issues, and, therefore, exceptor pleads an exception of lis pendens. “That proper parties are not before the court because Alex L. Redden is not made a party defendant in the petition of said Charles Wesley Sherwood. “That said petition sets forth no right of action unless it be deemed an answer to the petition filed herein by the Dixie Homestead Association. “That if the petition be considered a separate suit, then exceptor pleads to the jurisdiction and power of this court to pass on the issues set forth in the petition of said Sherwood, because the suit should be regularly allotted according to law.” No action was had on this petition of Sherwood and he filed answer in which, in effect, he admitted all of the pertinent allegations of the petition of interpleader filed by Dixie Homestead Association, but in which he denied any right to make the deposit. He claimed that the entire deposit should be turned over to him without the deduction of any costs. Redden also appeared and made claim to the amount deposited, making the following allegations in support of his claim: That he was a building expert of the Homestead Association and, as such, was notified by that association when the loss occurred and was requested by it “to examine the loss in the interest of both association and said Sherwood”; that he examined the damaged premises and for ten or fifteen days negotiated with the insurance company for a settlement and adjustment of the loss; that Sherwood was out of the city at the time, and that therefore, he, Redden, had “dealings” with Sherwood’s mother, and that when Sherwood returned he, himself, discussed the matter with Redden and had full knowledge of the services which Redden had rendered and was rendering; that the insurance company added to the amount of the adjustment $231.40 “for the distinct purpose of paying respondent’s fee.” After a hearing of the evidence presented by all parties the District Court rendered judgment in favor of Sherwood, ordering the entire sum deposited to be turned over to him “without deducting any costs whatsoever”, and reserving to Redden such right as he might have to assert his claim against Sherwood “in appropriate proceedings.” Both the Dixie Homestead Association and Redden have appealed, the former complaining only that it should have been permitted to deduct from the money on deposit the costs paid by it in provoking this proceeding, and Redden complaining- that he should have been awarded the amount deposited. It is evident that the District Judge was of the opinion that under the facts shown, and we may add that the facts shown are identical with the allegations of the petition, there was no right in the Dixie Homestead Association to deposit the amount in court and to call on Sherwood and Redden to assert their claims to it. We say this because if the District Judge had felt that the proceeding was authorized by the statute of 1922, he must necessarily have allowed the depositor to be reimbursed the amount of its court costs, for that statute provides in Section 6 “that the applicant depositing the money shall not be required to pay any costs in the proceedings.” Sherwood’s counsel argue that the statute does not contemplate that such a deposit may be made of money coming into the possession of the depositor as this money came into the possession of plaintiff. The Homestead Association and Redden, on the other hand, maintain that the statute makes no distinction whatever among the various methods by which money of one person may come into the possession of another, and they contend that since the said statute in an all-inclusive manner provides that any person in possession of “any money” which is claimed by two or more persons may make the deposit and call on the claimants to assert their rights, the Homestead Association was within its rights in resorting to the statute. They rely upon the act, itself, in support of their argument that in order that it be availed of it is not necessary that the adverse claimant or claimants assert a lien or privilege, pointing to the fact that the deposit may be made where an adverse claimant makes claim to the money or asserts a lien or privilege upon it. We are given no authorities which touch upon the question and have found none. It is obvious that if plaintiff is correct, then whenever one person, firm or corporation has in its possession money belonging to another, a third person, by merely notifying the holder of his claim, and without judicial process, may effect the garnishment or sequestration of the money, and thus prevent its delivery to the person who may have placed it in the hands of the temporary holder. It is true here that Redden seeks to identify his claim with the particular money in the possession of the Homestead Association by asserting or claiming that by his efforts that fund had been increased. In this connection he calls attention to a clause in the insurance policy which reads as follows: “8. Architect’s Fee Clause.— This insurance covers the fees of architects necessary to be incurred in repairs or reconstruction, but not to exceed the usual fees.” But this clause affords no comfort to Redden for two reasons: First, if he was employed at all, and this Sherwood denies, he was not employed as an architect in repairing or reconstructing the building, but was employed as an adjuster to assist in securing settlement from the insurance company, and, therefore, even if Sherwood had employed Redden, and Redden had billed Sherwood for his services in securing the adjustment, we doubt that Sherwood could have forced the insurance company to include in its settlement the amount of Redden’s bill, and, in the second place, if Sherwood had collected such an item, the amount collected by him would not have belonged to Redden — he would merely have had a claim against Sherwood for the services rendered. Even if his assertion that the insurers added $231.40 to the settlement is founded on fact, he would have no claim on that particular money; he would merely have a claim against Sherwood. In other words, his claim is not to the ownership of that particular money but is merely to his right to assert that he has a personal claim against Sherwood. We think that it was not the intention of the framers of the statute to give to one, who may have a claim against another, a right to impound in the hands of a third person money belonging to the person against whom he asserts that he has a claim and that it was intended that the claimant must base his claim on the assertion that he owns some or all of that particular money. Here the money was placed with the Homestead Association for the purpose of allowing it to reimburse itself. It would not do, under such circumstances, to permit a third person by asserting the existence of a debt due him by the owner of the money to impound that money. As we have said, the statute does not contemplate such a situation and that the District Judge so concluded. Therefore the judgment below should have merely dismissed the suit and it should not have ordered the money turned over to Sherwood. It is inconsistent to hold that the Homestead Association had no right to make the deposit, and yet to order that the deposit be turned over to one of the claimants. Counsel for Sherwood notice this possible inconsistency and seek to defend it on the theory that wherever a court finds itself in possession of money it should deliver it to the person to whom it belongs. We do not think that that theory is applicable here, and we conclude that since the money should not have been deposited at all, it should be ordered returned to the depositor. We agree, of course, that if Redden has any claim against Sherwood he may assert it in some independent, direct proceeding. The judgment appealed from is amended and it is now ordered, adjudged and decreed that the suit of Dixie Homestead Association be and it is dismissed at the cost of that association, and that it be permitted to withdraw the amount deposited by it in the registry of the Civil District Court. As thus amended the judgment is affirmed. Amended and affirmed.

McCALEB, Judge. This is a suit by a tenant against his landlord for damages occasioned by the alleged illegal entry of the latter upon the leased premises and the removal of personal property therefrom. Plaintiff alleges that, on September 21, 1942, he was a lessee of the premises No. 3816% Third Street in the city of New Orleans, under a verbal weekly lease; that, on said date, he was dispossessed and ejected therefrom by the defendant without legal process; that the defendant removed his household goods and effects from the premises and that he continues to hold said property, despite amicable demand for the return of it and that, as a result, he has suffered the following damages : $300, representing the value of the personal property taken by the defendant annd $1000, for embarrassment and humiliation. After interposing an exception of no cause or right of action to plaintiff’s petition, which was overruled, the defendant answered and denied the allegations of fact contained therein. For further answer, he averred that, whereas plaintiff had been his tenant, he abandoned the leased premises in June 1942 when he was inducted into the Army; that, three months after plaintiff’s induction into the Army, he took possession of the premises, as thus abandoned, for the reason that plaintiff was paying no rent and that he placed the property of plaintiff, for safekeeping, in another part of the same premises. He further declared that, while he had the legal right to the physical detention of plaintiff’s effects under his landlord’s pledge and privilege for payment of past-due rent, he has at no time refused to deliver the possession of these effects to plaintiff. After a trial on the issues thus joined, there was judgment in favor of plaintiff and against the testamentary executor of defendant’s succession (defendant having died after the trial but before judgment was rendered) for damages in the sum of $500. Hence this appeal. The record reveals the following facts: The defendant, an elderly colored man, was the owner of the property Nos. 3814-3814%-3816-3816% Third Street in the city of New Orleans. He lived in three rooms of these premises and rented the other rooms by the week to various tenants. On and before June 20, 1942, the plaintiff, also a colored man, was renting and occupying one of the rooms in defendant’s property with his concubine (or “common-law wife”), one Beulah Butler, under a verbal lease at a rental price of $1 per week. On June 20th plaintiff, having been inducted into the United States Army and being required to report for duty, left all of his personal property on the leased premises in the care of Beulah Butler, who says that she occupied the premises continuously thereafter, until September 21, 1942, when the defendant, without any notice and at a time when she had temporarily left the room in order to seek work, broke into the room and removed all of the personal effects belonging to plaintiff and herself. Beulah Butler further testifies that, when she returned to the premises and discovered that the furniture and other personal property had been moved, she immediately contacted the defendant and asked him what had happened; that he replied “I told my wife to break that glass and get in there and take the furnitures out and put them out in the yard” and that he further remarked that he had the right to tear up anything around the house “because this is my personal property and I don’t owe anybody anything on it and I can do whatever I want to.” She also asserts that, immediately after her conversation with defendant, she communicated with plaintiff, who was then in Washington, and that the Red Cross organization loaned plaintiff the money to come to New Orleans to take the matter up with the defendant. Plaintiff testifies that, when he received the letter from Beulah informing him that the defendant had taken his furniture and other personal belongings out of the premises and that she was without a place to live, he secured a special furlough and returned to New Orleans; that, upon reaching the city, he went to see the defendant and asked him why he had removed the furniture and other effects and that defendant told him that, since he was the owner of the premises, he could do “what he pleases”. Plaintiff admitted that, at the time he was inducted into the Army, he owed the defendant three weeks rent and that he did not pay any rent thereafter. Defendant testified, in substance, that, on or about September 21, 1942, he told his brother to go to plaintiff’s room and move all of the furniture and personal belongings of plaintiff and Beulah Butler; that, at the time this was done, plaintiff and Beulah Butler had long since abandoned the premises and that there was no one occupying the room; that all of the effects of plaintiff and Beulah were placed in a garage situated on the premises and that, when plaintiff came back to inquire about his personal property, he told plaintiff “take your furniture and go, and the rent you owe me, you don’t need to pay me. Just take yourself out * * * your stuff is downstairs.” At the conclusion of defendant’s testimony, the case was continued by the court for the purpose of permitting opposing counsel and their clients to proceed to the premises of defendant to ascertain if the articles of property claimed by plaintiff were still in defendant’s possession. Thereafter, when the hearing was resumed, counsel for plaintiff reported to the court that he and his client visited the premises of defendant and that defendant was unable to point out to them any article of personal property which he had taken from the room occupied by plaintiff. In view of this report, the trial judge, ex proprio motu, reopened the case for the taking of additional testimony. Upon the resumption of the trial, Beulah Butler and plaintiff again took the stand and testified that, in accordance with the previous agreement of the parties, they had repaired to defendant’s premises, in company with counsel; that they asked defendant to point out any furniture or other property belonging to plaintiff which he had retained in his possession; that defendant brought them to his garage, which was used as a storage room; that this garage contained some old, broken furniture; that none of the furniture or other personal effects of plaintiff was contained in the garage and that defendant was unable to point out any article which had been removed at his direction from the leased premises. They further testified, in detail, respecting the articles of furniture and the personal belongings of plaintiff which were contained in their room and which had been removed therefrom by defendant. These effects, which are specified in plaintiff’s petition, consist, in the main, of usual household articles. — such as an electric iron, dishes, glasses, pitchers, table, zinc tub, blankets, quilts, ice box, bed, spring, pillows, pillow slips, sheets, etc. In addition to this, plaintiff claims that defendant removed his personal clothing, consisting of five suits, nine pairs of shoes, two pairs of boots and five suits of underwear; also a watch valued at $85 and two automobile tires and tubes valued at $47.55. Plaintiff produced duplicate bills exhibiting the purchase price of the automobile tires and also a bill for the furniture, which he alleges was taken by the defendant, amounting to $115.54. He also stated that the five suits taken by defendant cost him in excess of $30 apiece and were valued at least at that sum. Estimated values were likewise placed by plaintiff and Beulah Butler upon the other property removed by the defendant. An examination of their testimony on this question disr closes that all of the property removed by defendant was worth greatly in excess of $300 which is the total' value alleged in the petition. After the foregoing testimony was adduced, defendant did not see fit to again take the stand and deny the assertions of plaintiff and Beulah Butler nor did he subpoena his brother to testify at the trial. The judge of the lower court, in awarding damages in the sum of $500 to plaintiff, was apparently of the opinion that plaintiff’s evidence preponderated over that of the defendant. We not only fail to discover manifest error in his ruling but are convinced that his appraisal of the facts was eminently correct. Counsel for defendant, in argument and in brief, tells us that defendant had the legal right to break into the room occupied by plaintiff and Beulah Butler and remove therefrom the property of plaintiff for the purpose of protecting his right of pledge for the past-due rent owed by plaintiff, in view of the fact that plaintiff abandoned the premises at the time he was inducted into the Army. If we should concede arguendo that Article 3218 of the Civil Code, which is relied upon by counsel, authorized defendant to break into the room and seize the effects of plaintiff for the protection of his landlord’s privilege, this defen'se would be unavailing to defendant under the facts of the case in view of his testimony that he did not remove plaintiff’s property in order to protect his landlord’s lien for the payment of the rent but because he wanted the room emptied of the personal belongings of plaintiff for the purpose of renting it to another party. On redirect examination, defendant testified as follows: “I wanted the room emptied and he (meaning his brother) moved the stuff out of the room into the garage in order that I could rent the room.” (Words in parenthesis ours.) Thus, we see that defendant cannot now belatedly claim that he was within his legal rights in invading plaintiff’s quarters and seizing his property as security for payment of past-due rent. Furthermore, we are unable to agree with the theory of counsel for defendant that plaintiff had abandoned the leased premises at the time he went into the Army. These premises, to the knowledge of defendant, were occupied by plaintiff and his “common-law” wife. When plaintiff was inducted into the Army, he left his effects on the premises in the possession of Beulah Butler, who remained in occupancy of the room until after defendant removed all of the personal property therefrom. And, while defendant denies that Beulah continued to occupy the premises after plaintiff left, we think that her testimony preponderates — for it seems unlikely to us that she would abandon the rented room for a period of three months and leave all of plaintiff’s, as well as her own, personal belongings therein. The truth is, we think, that defendant, as he admits in his testimony, was anxious to get possession of the room in order to-rent it to another person and that, instead of pursuing the lawful method of an ejectment proceeding, he took it upon himself, at a time when Beulah Butler was temporarily absent, to break into the room and remove the personal effects therefrom. This was an unlawful act for which defendant is required to respond in damages. See Lansalot v. Mihaljevich, 12 La.App. 174, 125 So. 183. This is not a case like Reed v. Walthers, La.App., 193 So. 253, where the lessor padlocked the leased premises to prevent the lessee from removing his movable effects on which lessor had a right of pledge and retention under Civil Code, Articles 2705 and 3218. Nor is it a case such as Wolf v. Cuccia, 144 La. 336, 80 So. 581, where the landlord was held to be guilty of a technical violation of the tenant’s contractual rights under Civil Code, Article 1930 et seq., where he acted too hastily in asserting his-right to possession, against his tenant’s, protest, upon the theory that the tenant had abandoned and vacated the property. Conversely, the facts presented here disclose that the defendant, knowing that plaintiff had left the premises for the purpose of joining the Armed Forces and that his so-called “common-law” wife was in possession thereof, took the law into his own hands by invading the premises and removing therefrom the personal property of plaintiff for the specific purpose of obtaining possession of the room so that he could lease it to another person. Since we find that the judge correctly held that defendant was liable, it remains only to determine the quantum of damages to which plaintiff is entitled. Of the $500 damages awarded below, $300 represents actual damage sustained by plaintiff — for, as above stated, it has been established, with reasonable certainty and without contradiction, that the value of the personal .property taken by defendant, and unaccounted for, is at least that amount which is the sum claimed in the petition-Therefore, the judge must have concluded. that $200 would represent fair compensation to plaintiff for the unwarranted acts ■of defendant. Defendant asserts that this amount is highly excessive and plaintiff has answered the appeal praying for an increase in the award. It is perfectly obvious to us that the acts of defendant caused plaintiff considerable inconvenience and some expense as it became necessary for him to obtain a special furlough to come to New Orleans for the purpose of asserting his rights. After due deliberation, we think that the sum of $200 is neither excessive nor inadequate being in conformity with previous awards generally given as compensatory damages in this type of case. See Vogt v. Jannarelli, La.App., 198 So. 421, and Walsh v. Bush, La.App., 20 So.2d 190. For the reasons assigned, the judgment appealed from is affirmed. Affirmed.

TALIAFERRO, Judge. The facts and circumstances providing the basis of this suit primarily involve two brothers, Jesse L. and Grady V. Brown, residents of Ouachita Parish. They acquired jointly in the partition of the estate of their father, J. O. Brown, a small tract of land in the western part of Ouachita Parish. Jesse mortgaged his one-half interest in the tract to a bank in the City of Monroe, Louisiana, and in the year 1941 erected thereon a modest four-room dwelling with porch. He and his wife lived continuously in this dwelling for perhaps a year. For business reasons and convenience they virtually abandoned the place as their living quarters in the latter part of 1941. or early in 1942, but returned to it from time to time, mainly, we think, to look after the furniture and other effects left therein. Between the time these plaintiffs abandoned the house as their living place and the time the facts forming the basis of this suit transpired, they lived in the City of Shreveport some six months, for several months in the City of West Monroe, and for a time in the City of Bastrop, Louisiana. During the year 1942 the house was occupied by two women with the consent of plaintiffs, for a period of some six months. Jesse L. Brown defaulted oh the mortgage to the bank and foreclosure proceedings followed. The date of this suit is not definitely fixed in the record, but we judge it to have been in the latter part of 1942. At sheriffs sale under the foreclosure, Jesse Brown’s interest in the land was acquired by a resident of Ouachita Parish who thereafter sold it to Grady V. Brown, thereby making him the owner of the entirety of the land and buildings thereon. In March, 1943, several months after Grady V. Brown’s acquisition of his brother’s interest in the land, he had his attorney write a letter to him in which it was requested that the furniture and other household effects in said building be removed therefrom. Receipt of this letter by Jesse L. Brown was denied by him. We are inclined to think he is mistaken in so testifying. However, whether he received it or not has no material bearing upon the issues of the case. In October, 1943, Grady V. Brown leased the house with adjacent land to Willie Teal, and proceeded to place him in possession. This was some six months after the letter was written to Jesse L. Brown requesting that he remove his household effects from the building. Grady V. Brown engaged J. T. Skeins to so shift the furniture in the dwelling that Teal could move into it with his own household effects. This was done the morning of October 11th. Teal was present and assisted Skeins in carrying out Grady V. Brown’s wishes and instructions, but he did not move into the building until plaintiffs’ furniture was removed therefrom. Some of the furniture was put on the front porch and some was carried to and placed in an outhouse on the premises. On this same day Teal moved some ear corn to the house and left it on the front porch. Coincidentally, the day the furniture was moved, as above related, plaintiffs drove to the place and discovered what had happened. They promptly sought relief through the sheriff and the district attorney, but neither of these officials considered the facts of the case such that they should take any action. Within a week thereafter plaintiffs sold all the furniture to a secondhand dealer for $87. Jesse L. Brown and his wife, Christine, instituted this suit against Grady V. Brown, Willie Teal, J. T. Skeins and R. L. Kilgore, to recover damages allegedly sustained by them as a result of the alleged illegal action of the named defendants in these respects, to-wit: 1. Loss of their furniture by destruction at the hands of the defendants . $ 913.00 2. Cost of moving said furniture and the expense of moving from their home. 87.00 3. Humiliation and embarrassment suffered by the acts of the defendants . 1,500.00 Total .$2,500.00 Kilgore was erroneously impleaded as defendant. Pie was not present when the furniture was moved and, so far as the testimony shows, he had nothing to do with the matter at all. He was dismissed from the suit on exceptions of no cause and no right of action. Like exceptions filed by the other defendants were referred to the merits. The joint answer of Teal and Skeins is, in effect, a general denial. Grady V. Brown admits that he caused the plaintiffs’ furniture to be so moved and rearranged as to allow his tenant, Teal, to move his household effects into the building. He, specially denies that the furniture was damaged to any extent and denies that plaintiffs suffered any humiliation or embarrassment on account of his action. He avers that since plaintiffs had abandoned the house as their home for some two and one-half years, and left it unoccupied and unattended, he had the right to act as the record discloses he did. The lower court rejected plaintiffs’ demand in its entirety and they appealed. After the sheriff’s sale in the foreclosure suit Jesse L. Brown ceased to have any interest in the house in question or-the land whereon it is located. Thereafter any sort of possession thereto exercised by him was purely by sufferance of the owner. From the time he ceased to live in the house and established living quarters elsewhere the house merely served as a shelter or place of protection to that part of his household effects left therein. Grady V. Brown believed, and the facts warranted such, belief, that the house had been abandoned as living quarters. He felt that his own interest and that of plaintiffs would best be subserved by proceeding as he did. He had the unquestioned right, under the facts and circumstances, to enter the house and so arrange the effects therein as to allow his own tenant to occupy the same. Unless in accomplishing this result he caused injury to plaintiffs’ furniture and effects, surely he may not be mulcted in damages. Plaintiffs charge that Grady V. Brown broke the lock on the front door of the house in order to gain admission therein. He positively denied this and testified that the door was open when he went there early in the morning of October 11th. Neither he nor the other defendants employed force to enter the building. It is of common occurrence that property of this character when left unoccupied and unattended for long intervals, is broken into and ransacked by persons desiring to steal. Plaintiffs testified that the furniture prior to being moved was well worth $1,000, and that because of injury thereto, while being moved by defendants, it depreciated in value $913, since the secondhand dealer would pay only $87 for it. The men who moved the furniture testified that they handled it with due care and caused no damage to it; while, on the other hand, plaintiffs testified to some extent in detail, the character of injury they believe was inflicted upon it while being moved. Neither of them testified that any part of the 'furniture was destroyed as by them alleged. There is no middle ground to plaintiffs’ claim of damages to the furniture. They unequivocably take the position that they suffered damages in this respect to the extent of $913. If the furniture had a value of $1,000 prior to being moved, surely it was not damaged to the extent of $913 by the removal. Having faile.d to prove that the furniture was destroyed and having failed to prove that it was damaged to the extent of $913, if damaged at all, and having failed to prove the extent of damages, conceding that there were any, plaintiffs’ demand on this score was properly rejected. The second element of damages is not urged. It has no semblance of foundation. The furniture, after being sold to the secondhand dealer, was moved by him from the premises and carried to his place of business in West Monroe. Plaintiffs did not testify in support of this claim. In view of the conclusion reached by us that Grady V. Brown was within his legal rights in taking possession of the building and moving plaintiffs’ furniture as herein described, it logically follows that for any humiliation and embarrassment experienced by plaintiffs on account of Grady V. Brown’s action, they have no right or cause of action. For the reasons herein assigned, the judgment appealed from is affirmed with costs.

OTT, Judge. The issues in this case were stated in our original opinion. La.App., 19 So.2d 654. It is unnecessary to re-state the issues other than to say that the principal question involved is whether or not .the plaintiff Bank has a vendor’s privilege on the Butane gas system for the payment of the balance due on the note sued on, which note was signed by the defendants and is made payable to the plaintiff Bank directly instead of being made payable to the Gas Company, the vendor of the system. Plaintiff alleged in its original petition that the note sued on was secured by a vendor’s lien and privilege and being part of the purchase price of a Butane gas system installed in the home of the defendants. An order was issued on an exception of vagueness ordering plaintiff to amend its petition so as to set out from whom the Butane system referred to was purchased, whether or not plaintiff acquired the note from the purchasers of the system or from a third person, and if acquired from a third person, whether the note was acquired with or without recourse and before maturity. In compliance with this order, plaintiff filed a supplemental petition alleging that the note was signed by the defendants and was made payable to the Cottonport Bank, and was given by the makers to the Butane Gas & Plumbing Company, Inc., in payment of the Butane system described in the original petition; that said note was transferred without endorsement by manual delivery from the said Butane Gas & Plumbing Company, Inc., to the Cottonport Bank for a valuable consideration and before maturity. In the motion filed by defendants to dissolve the writ of sequestration issued in the case, the allegation is made that the gas system was installed in the building for its use and benefit and thereby became an immovable by nature or an immovable by destination, and the vendor’s privilege was lost. It was on this theory and contention that the defendants asked for a dissolution of the writ of sequestration, and it was on this theory that the trial judge dissolved the writ, that is because the gas system had become an immovable by nature and the vendor’s lien was thereby lost. Instead of a trial on the motion to dissolve the writ, counsel entered into an agreed statement of facts in which, among other things, it was stipulated that no chattel mortgage was retained by the vendor, Butane Gas & Plumbing Company, on the Butane gas plant and equipment. The law grants to the vendor of movable property a privilege on the property sold for the payment of the purchase price so long as the property remains in the -hands of the purchaser, and the taking of a note for the purchase price does not destroy the privilege. Civil Code, Article 3227. Even though the note given for the purchase price is not made payable directly to the vendor, but by arrangement of the parties, is made payable to a third party, such third party still enjoys the vendor’s privilege on the thing sold. In the case of Jeckell v. Fried, 18 La.Ann. 192, Sturne sold a cracker machine to Fried, and the latter gave a note for part of the purchase price. The note was not made payable to Sturne, the vendor, but by agreement of the parties, was made payable to Beard to satisfy a debt due by Sturne to Beard. The court held that the holder of the note had a vendor’s privilege on the cracker machine, the court stating: “Had the note been made payable to Sturne, and been secured by the vendor’s privilege, no reason can be perceived why, under the circumstances of the case, the note made payable to Beard, should not likewise carry with it the same security. It was, in effect, a transfer from Sturne to Beard, of a part of the consideration of Sturne’s sale to Fried, in the particular form agreed on by the contracting parties, and the transfer of the claim evidenced by the note, carried with it the accessory of the privilege of the vendor.” There is not sufficient proof in the record to show the manner in which the plaintiff Bank acquired the note, the arrangement between the parties, and the reason why the note was made payable to the Bank and not to the vendor of the gas system. The plaintiff Bank offered no proof to show that it acquired the note in the manner and for the consideration set out in its supplemental petition. Counsel for defendants contend that, if the Bank did have a vendor’s privilege on the gas system, this privilege was lost because the movables sold became immovable by nature when the equipment was installed in the building for its use and benefit. We agree with the contention of counsel that the equipment became immovable by nature, as the gas system was connected with the building for its use and convenience by placing the seven-foot gas tank five feet in the ground and connecting the heating equipment in the house with the tank by pipes run through the floor into the house. The provisions of Article 467 of the Civil Code, as amended by Act 51 of 1912, made this gas plant, when thus installed, an immovable by nature. However, the mere fact that the gas system thus became an immovable' by nature did not necessarily destroy the vendor’s lien resting on it at the time of installation. The rule is that where the movable sold has become immovable by nature or by destination and still remains in the hands of the purchaser and can be identified and removed without substantial injury to the structure to which it is attached, the vendor’s lien and privilege is still enforceable. Globe Automatic Sprinkler Co. v. Bell et al., 183 La. 937, 165 So. 150; Caldwell v. Laurel Grove Co., Inc., 175 La. 928, 144 So. 718. From the agreed statement of facts as to the manner the gas system was installed in defendants’ building, it is clear that this equipment could be removed from the building without any serious damage to it. The tank could be removed from the ground and the pipes pulled out of the small holes in the floor with practically no damage to the building. In fact, there would be much less damage and inconvenience to the building by removing the gas system than was the case in removing the equipment and machinery from the structures in the two cited cases above where the vendor’s lien was enforced. The Supreme Court in some cases has permitted the enforcement of the vendor’s lien on movable property installed in a structure by the owner where it was necessary to tear out some part of a wall or unscrew tight bolts in order to detach the movable from the building. To support the writ of sequestration, the plaintiff had the burden of showing that it has a vendor’s lien on the gas system. As already stated., the p'roof is not sufficient for us to determine whether or not the manner in which the Bank acquired the note sued on, the arrangement among the three parties involved, the vendor, the vendee and the Bank, was such as to retain the vendor’s lien in favor of the Bank, and we have decided to remand the case for further proof on these points. For the reasons assigned, our former decree is recalled and set aside, and it is further ordered that the judgment appealed’ from be and the same is annulled and set aside, and it is now ordered that the case be remanded to the district court to be proceeded with according to law and the views herein expressed; the cost of the appeal to be paid by the defendants, and all other cost to await the final termination of the case.

FOURNET, Justice. Nancy Lee Clark is appealing from a judgment dismissing her suit against her husband, James" Moses Clark, for separation from bed and board on the ground of cruel treatment and for .the custody of their four-month old son and granting the defendant a divorce and the custody of the child on the ground of adultery on his re-conventional demand. In her petition the plaintiff alleged .that she and the defendant were married on February 26, 1942, of which union a son, Clarence Dale Clark, was born on January 25, 1943; that the defendant beat, abused, and otherwise treated her cruelly on numerous occasions, specifically on September 1, 1942, while she was in ill health and in a family way, when he struck her, breaking her nose, and otherwise abusing her by .threatening her life with a gun, such abuse resulting in her confinement in bed at her mother’s home for several months, to which place she went the day following the beating; that he rendered no financial assistance during her confinement and that since the birth of her son she has .taken a professional course and is in a position to secure employment and continue to provide for herself and her son. In his answer filed on May 24, two days after this suit was instituted, the defendant denied the allegations of plaintiff’s petition, giving in a lengthy, intricate, and exaggerated manner his version of the case and, in a reconventional demand praying for a divorce and the care and custody of the child, he made the broad and general allegation that his wife had. ■committed adultery on numerous occasions, the times, places, and names of the persons then being unknown .to him but to be produced on the trial of the case, averring further that such acts had been committed in particular with a couple of young men whose given names were unknown to him but whose surnames were Sharp and Carroll. He then specified two instances on which he claims he caught his wife in the act of adultery, once near the village of Rhinehart with one Boots Culp on June 14, 1942, the other at night in the woods near Pineville on May 14, 1943, with Carroll and Sharp. Some thirty days later he filed a supplemental' and amended answer in which he alleged two additional acts of adultery, one, witnessed by him, at night in a box car near Rhinehart with Carroll, whose first name he then gave as Otis, the other, not witnessed by him, on the night of June 10, 1943, on the ground near the trade school .dormitory at Pine-ville, with both Otis Carroll and Sharp, whose given name is then designated as Alden. In his written reasons for judgment the trial judge found that the plaintiff had failed to establish her charges of cruel treatment, for he was of the opinion that her evidence was unsatisfactory in many respects. In this conclusion we concur for, in addition to the countervailing evidence of the defendant’s witnesses, the plaintiff’s own testimony is not only at variance with the allegations of her petition with respect to material facts, but, in many instances, it is in conflict with the testimony of her own witnesses. But we think the evidence offered by the defendant in support of his accusations against his wife is equally unimpressive. Although he pictured his wife as a most dissolute person, entirely lacking in virtue and totally and completely indifferent as to the places, times, and persons with whom she committed adultery, first in .the small community of Rhinehart where they resided and later at the place where she was attending school and subsequently obtained employment, he seemed to be unable to obtain any witnesses to these incidents other than himself and one of his wife’s alleged accomplices, Alden Sharp. Besides, we find that the defendant’s own testimony, like that of the plaintiff, is not only at variance with the allegations of his petition with respect to material facts, but is in conflict with the testimony of this principal witness. Furthermore, we think his demeanor and his testimony with respect to his indifferent attitude toward his wife and her alleged accomplices on the occasions when he claims to have witnessed her acts of adultery, taxes mortal credulity, especially when considered to-, gether with his professed protestations of solicitude for her welfare and that of the unborn child she was then cari'ying. It is, to say the least, at variance with ordinary human conduct. In his testimony supporting his allegations the defendant stated that on June 14, 1942, he caught his wife in the act of adultery with Boots Culp, her first cousin, in Culp’s home, her uncle at the time being in .the field, her aunt washing in the back yard, and two little children playing in the yard, explaining that when he happened to go there to get a cup of coffee he found' his wife and Culp in the act of adultery. He testified that some two weeks later, on June 30, 1942, while he was loading cross ties during the day (not at night as alleged in his reconventional demand) his wife, with Otis Carroll, sought out one of the box cars along the tracks and there committed adultery in plain view of himself and other people who were working or passing along that way. He stated that on neither of these occasions did he either do or say anything to his wife or her accomplice. Again, testifying with respect to the alleged act of adultery that occurred on-May 14, 1943, he told a most incredible story. He said that some time in the fall of 1943, the exact date not being remembered by him, while “hitch-hiking” to his home in Rhinehart from his job in Texas, he was dropped near the place where Carroll’s truck happened to be parked and .that he happened to find Carroll sitting in the truck and his wife committing adultery with Sharp some fifty yards away in plain view. Contrary to his allegation that this incident also occurred on the night of May 14, 1943, he testified it was in the fall of 1943 and in the day. Furthermore, he would have us believe that he not only did nor said nothing to his wife and Sharp at the time but that he waited patiently until they had completed the act and until Sharp and Carroll had taken his wife back to Pineville so that he might ride home with these men. The trial judge seemed to be impressed with the fact that the plaintiff, while on the stand, failed .to deny categorically the charges brought against her by her husband. Of course her failure to answer these allegations, particularly when she was never interrogated with respect to them, did not relieve the defendant of his burden of proving .them. We likewise do not attach the weight, as did the trial judge, to the fact that the plaintiff, on August 22, 1942, signed an answer admitting the allegations of her husband’s petition (signed but never filed) with respect to her act of adultery with Culp on June 14, 1942, for the record strongly indicates this was a consent proceeding. Both the petition and answer were prepared by the defendant’s attorney and were signed by both the plaintiff and defendant at the same time. Furthermore, even if the plaintiff was guilty, we think the evidence is most convincing that the defendant condoned this particular act thereafter. In an apparent effort to avoid the consequences of this condonation of his wife’s alleged adultery with Culp on June 14, 1942, and to have his version thereof corroborated by his sister and brother-in-law, who lived next door to him, the defendant denied that he ever lived with his wife after June 14, 1942, or that he even knew of her whereabouts except in a general way .from that day until he took her to her mother’s home on September 2, 1942, stating most positively that she was living in and around the little village of Rhinehart (a small station stop on the Louisiana & Arkansas Railway having an accredited population of exactly 35 persons according to the 1944 edition of Rand Mc-Nally’s Commercial Atlas and Marketing Guide) although he could not state exactly with whom she was living in the small settlement. This is not only at variance with the pleadings prepared and sworn to by him in August of 1942, where he specifically alleged she continued to live in Culp’s home in open adultery after he caught them together on June 14, 1942, but is also at variance with similar allegations in his reconventional demand filed on May 24, 1943, and with his admitted treatment of her during that period. Although giving his discovery of his wife’s pregnancy as his reason for not filing the pleadings prepared in August of 1942, we find in his testimony .the statement that he personally and repeatedly took her to the doctor with reference to her condition. He is corroborated in this respect by the physician to whom he took his wife for examination in her early pregnancy. Again we find that although claiming he was separated from his wife from the time of the Culp incident, the defendant stated that when he learned, just before taking the plaintiff to her mother on September 2, 1942, that she had injured herself in an effort to bring about a premature delivery of her child, he borrowed his brother-in-law’s car and, taking his sister, brother-in-law, and the plaintiff, picking up her mother on the way, he entered her in the hospital in Pineville, where he remained with her for several days until her discharge. He then .took her home by bus and from there to her mother’s on September 2, 1942, in a car rented by him for that specific purpose. He also volunteered the information that when he took her to her mother’s, her clothes were still at his home, although she had allegedly lived with Culp from June 14 until that time. In addition, we find that after much insistence on his part, the sheriff consented to go with him to her mother’s .three days later with the view of prevailing upon her to return to him. In considering Sharp’s testimony we need only to say that while a corespondent is not disqualified by law from testifying with reference to his intimacies with the erring spouse, the statements made by him must be corroborated and weighed with great caution before being accepted as true (Mouille v. Schutten, 190 La. 841, 183 So. 191) and point out that Sharp’s testimony is not only not corroborated in some material facts but that from the record as made up a strong impression is created that .there was collusion between this witness and the defendant, admittedly an intimate friend of his, although the defendant in his testimony endeavored to imply he only knew Sharp slightly. In addition, Sharp’s testimony is contradicated by the defendant in many instances and is otherwise discredited. We are of the opinion that the defendant has failed to prove his case by competent evidence within that reasonable legal certainty required by law and we also .think that the interest of all parties will best be served by dismissing both of these suits. For the reasons assigned, the judgment of the lower court, in so far as it grants the defendant a divorce against his wife and the care, custody, and control of their minor son, Clarence Dale Clark, is an nulled and set aside and bis reconventional demand is dismissed. In all other respects it is affirmed. The court, availing itself of the authority granted in Act No. 229 of 1910, taxes all of the costs of these proceedings against the defendant. HIGGINS and HAWTHORNE, JJ., do not take part.

PONDER, Justice, Parks Brinkley Pedrick, individually and as testamentary executor of the succession of Norman Owens Pedrick, sought by rule against James J. Nolan, Jr., Collector of Inheritance Taxes for the Parish of Orleans, to have the balance due under a refund annuity contract adjudged free of inheritance taxes and to have the amount of $163.36 deposited in the registry of the court returned to him. Upon trial of the rule, the lower court rendered judgment decreeing the proceeds of the refund annuity contract to be a gift to the beneficiary in contemplation of death and fixed the inheritance tax at $163.36. The rule was dismissed. From this judgment, the plaintiff in rule has appealed. Norman Owens Pedrick died on December 10, 1942, leaving as his only heir his son, Parks Brinkley Pedrick. Among the effects of the decedent’s succession is a refund annuity contract, bearing date July 20, 1940, issued by the New York Life Insurance Company in settlement of a retirement annuity policy for which the decedent had paid $15,000 in three annual payments of $5,000 each. Under the annuity contract, the insurance company agreed to make certain payments to the decedent during his lifetime. It was provided in the contract that in event the principal of the deposit was not consumed in its entirety by payments to the annuitant, the balance was to be paid to the beneficiary. The annuitant, under the contract, had the right to cancel the agreement at any time before he had received payments thereunder. This he did not do. The contract was in effect during the lifetime of the annuitant, and various payments were made to him. At the time of his death, the commuted value of the refund annuity contract amounted to $8,-168.18. Under the terms of the contract, the annuitant had the right to name his beneficiary. He named his son, Parks Brinkley Pedrick, as such. The balance due under the contract, after deducting prior payments made to the decedent, became payable to the beneficiary, plaintiff in rule. The question confronting us is whether or not the proceeds of the refund annuity contract paid to the plaintiff in rule are subject to State inheritance tax. The appellant contends that the right of the beneficiary named in the contract to these proceeds, at the death of the annuitant, arises out of contract through the medium of a stipulation pour autri, and that the beneficiary named in the contract is not required under the laws of this State to pay an inheritance tax on a fund of this nature. He also suggests that Act 221 of 1944 specifically exempts this fund from inheritance taxes, and although the act has no retroactive effect, it cannot be disregarded in placing a proper construction up on the inheritance law of the State under the facts in this case. In support of his contention he relies on a written opinion of an assistant attorney general dated June 24, 1941, which is reported at p. 4145 of the Reports and Opinions of the Attorney General of Louisiana for the period from April 1, 1940, to April 1, 1942. The appellee takes the position that the transfer of the proceeds of the contract to the beneficiary constitute a gift in contemplation of death and are therefore taxable under sec. 1 and sec. 18 of Act 127 of the Extra Session of 1921, the inheritance tax law of Louisiana. He contends that the holding in the Succession of Rabouin, 201 La. 227, 9 So.2d 529, 142 A.L.R. 605, is decisive of the issues presented in this case. He also relies on the case of Central Hanover Bank & Trust Co. v. Martin, State Tax Com’r, 129 N.J.Eq. 186, 18 A.2d 45; Id., 319 U.S. 94, 63 S.Ct. 945, 87 L.Ed. 1282. The aforementioned report of the assistant attorney general was written sometime before this Court handed down the opinion in the Rabouin case. The question involved in the Rabouin case was whether the unpaid balance of the consideration of two annuity contracts of the same nature as the one involved herein should, at the time of the death of the annuitant, be paid to the named beneficiary without regard for the law of forced heirship, or should such fund be considered as belonging to the estate of the annuitant for the purpose of computing the disposable portion of his estate. It is stated in our opinion in that case that the trial court decided that the unpaid balance of the consideration for the annuity belonged to the estate of the annuitant. We affirmed the judgment of the lower court. The purport of the decision was to the effect that the contracts were set aside insofar as they encroached upon the legitime of forced heirs. The appellant attempts to differentiate the Rabouin case. He calls our attention to the fact that the beneficiary in the present case is the only forced heir of the deceased annuitant, and there is no occasion for determining the disposable portion of the deceased’s estate. He is under the impression that the Rabouin case is authority in that the refund of a contract of this nature may be considered as forming part of the estate only for the purpose of determining the disposable portion. From our appreciation of the holding in the Rabouin case, it was specifically held that the funds formed a part of the estate of the annuitant. This conclusion would necessarily have to have been reached before the question of the disposable portion could have arisen. The funds could not have been considered a part of the estate for a limited purpose. They either belonged to the estate or they did not. If they formed a part of the estate, they became the funds of the estate for all intents and purposes. In the present case, the funds, under the authority of the Rabouin case, form a part of the estate of the decedent and are therefore subject to the inheritance tax. We pointed out in the Rabouin case the difference between an insurance contract and an annuity contract. We cited authorities from other jurisdictions holding that an annuity was subject to an estate tax and not exempt as insurance. A contract of the nature involved in this suit is an investment pure and simple. The fact that it is termed an annuity contract does not in any way change the character of the contract. From our examination of the holdings of other jurisdictions, we find that the prevailing opinion is to the effect that the refund of a contract of this nature is considered a portion of the estate and subject to inheritance and estate tax. Equitable Life Assur. Soc. of U. S. v. Hobbs, Com’r of Ins., 154 Kan. 1, 114 P.2d 871, 135 A.L.R. 1234; Carroll v. Equitable Life Assur. Soc. of U. S., D.C., 9 F.Supp. 223; Equitable Life Assur. Soc. of U. S. v. Johnson, 53 Cal.App.2d 49, 127 P.2d 95; Wolfe v. Breman, 69 Ga.App. 813, 26 S.E.2d 633; State ex rel. Aetna Life Ins. Co. v. Lucas, 348 Mo. 286, 153 S.W.2d 10; Central Hanover Bank & Trust Co. v. Martin, State Tax Com’r, supra; Gregg v. Commissioner of Corporations and Taxation, 315 Mass. 704, 54 N.E.2d 169, 150 A.L.R. 1280; Hagy v. Kelly, State Tax Com’r (In re Hagy’s Estate), 135 N.J.Eq. 436, 39 A.2d 386. In the case of Wolfe v. Bremen, supra [69 Ga.App. 813, 26 S.E.2d 637], we find the following pertinent observation : “ * * * For many years there has been an ever-growing tendency of life insurance companies to encroach upon the field of investment by loading their policies with an increasing variety of purely investment features. This fact, however, deos not affect the character of a contract made by an insurance company as to whether it is insurance vel non, nor does it broaden the definition to include as insurance that which is not in fact properly so classified. * * * ” The opinion of Hagy v. Kelly, supra, traces the history and origin of annuities, and it is stated therein that a multiformity of such contracts have evolved, including the refund annuity. The following apposite statement was made therein [135 N.J.Eq. 436, 39 A.2d 388]: “In 1935 the purchase of annuity contracts was advocated with the representation that, like life insurance, the proceeds would probably be exempted from inheritance taxation. That supposition was found to be erroneous. Central Hanover Bank & Trust Co. v. Martin, supra; Bank of New York v. Kelly, supra. In the federal jurisdiction: Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996; Keller v. Commissioner, 312 U.S. 543, 61 S.Ct. 651, 85 L.Ed. 1032. From the viewpoint of risk, the difference between a life insurance policy and an annuity contract is diametric.” Without going into the distinguishing features between annuity contracts and insurance contracts, it is sufficient to say that all the decisions which we have had occasion to examine are to the effect that the refund of a contract of this nature not only forms a part of the estate but is subject to inheritance and estate taxes. See cases herein above cited. No case holding to the contrary has been cited to us, and from the limited time we have had to investigate the authorities, we have found none. Counsel is under the impression that we should take cognizance of Act 221 of 1944 in determining the issues involved herein. Counsel concedes that the act cannot be given retroactive effect. Such being the case, we could not be warranted in giving any effect to the act insofar as this case is concerned. Moreover, we are not prepared to say that the legislature intended, in Act 221 of 1944, to grant the proceeds of an annuity contract, irrespective of its character, the same legal status now accorded the proceeds of policies of life insurance simply-because the contract might be styled an annuity contract. We have therefore concluded that the refund involved herein is a part of the decedent’s estate and therefore subject to the inheritance tax. To hold otherwise would make it possible to convert an entire estate into contracts of this nature and thereby circumvent and defeat taxes due the State and the rights of forced heirs. For the reasons assigned, the judgment of the lower court is affirmed at appellant’s cost. HIGGINS and HAMITER, JJ-, concur in the decree. HAWTHORNE, J., does not take part.

CIACCIO, Judge. Codefendants Eftain Duron and Leovigil-do Creagh were charged with willful and unlawful possession with intent to distribute a controlled dangerous substance, cocaine. La.R.S. 40:967. Duron was found guilty of possession of cocaine after a judge trial and Creagh was acquitted. Du-ron was sentenced to serve five years at hard labor, with credit for time served. He appeals his conviction and sentence, relying on two assignments of error. We affirm Duron’s conviction and sentence. The record reveals these facts: New Orleans Police Officers Pedro Mari-no and Lloyd Clark received word from a confidential informant (“Cl”) that drugs were being sold out of the Blue Lagoon Lounge located at 2112 St. Claude. The Cl who the officers testified had previously assisted in about 100 drug cases informed them that some of the sales occurred at the intersection of Marigny and Royal Streets to avoid drawing attention to the bar. Inside of the bar was a locker where Eftain Duron stored the contraband, the Cl said. The Cl also described what Mr. Duron was wearing on January 3, 1986, and described the defendant's truck and its location at the bar. Officers Marino and Favre went to the bar and saw the truck parked in front. The Officers then followed Mr. Duron as he went to a bar located at the intersection of Royal and Marigny Streets. At that location, a drug transaction appeared to have occurred. Duron then drove to his house where it was believed he kept a large supply of cocaine. Some two hours, later the Cl contacted Officer Marino and told him Duron had returned to the Blue Lagoon Lounge. Marino proceeded to the lounge. Upon entering, he observed the locker, which reportedly contained cocaine located near the door. Officer Marino requested permission to search the locker but he was refused permission. He thereafter spoke to suspects Duron and Creagh and advised them of their rights. They were told that the officers were investigating cocaine trafficking and were asked if they had anything to declare. Neither suspect made a declaration. When asked whether there was cocaine on the premises, Duron said he could not be sure. A fellow police officer was instructed to prepare an application for a search warrant (A copy of the application and warrant are attached as Exhibit A). For approximately two hours the officers conducted an investigation. They also summoned the Vice Squad officers to inspect the establishment’s liquor licenses. According to Officer Marino, the question of whether the bar’s co-owners could have left did not arise. In the same evening, on January 4, 1986, at approximately 2:25 a.m., the Officers, with several other officers, executed a search warrant for the Blue Lagoon Lounge at 2112 St. Claude Avenue. Several patrons of the bar were excused. The co-owners of the bar, Mr. Duron and Mr. Creagh, together with several employees, remained. Duron and Creagh were instructed to open the locker. Duron advised the officer that his key was on a nail behind the bar. Thereafter, however, Creagh volunteered a key to the locker. The officers opened the locker and discovered $2,130 in cash, two bags of what appeared to be cocaine, certain business cards and mathematical records. During this time, Officer Wayne Favre also discovered a vial of cocaine on the floor of the office near the wall. Thereafter the two men were placed under arrest for possession of cocaine with intent to distribute. In his first assignment of error, defendant Duron argues that the trial court erred in refusing to grant his motion to suppress the evidence. The defendant reasons that the search warrant was the result of an illegal arrest, and alleges that the officers’ entry into and seizure of the bar and search of its contents was illegal because it was not based on probable cause. We disagree. The legality of the “arrest” is immaterial in this case, and we do not address this issue, because the discovery of the evidence seized did not result from Duron’s alleged “arrest.” The discovery of the evidence resulted from an “independent source,” that is, information provided by the confidential informant. See: Segura v. U.S., 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed. 2d 599 (1984). It is clear the police officers had a right to enter the lounge, a public place, and question its occupants regarding alleged illegal activity occurring there. It is likewise clear that no information secured from either Duron or Creagh was used as the basis for securing the search warrant. A reading of the application for the search warrant indicates the warrant resulted from information supplied by the Cl which was verified by the independent investigation of the officers involved. Thus, the issue is simply whether the warrant was based upon probable cause. The state and federal constitutions protect persons against unreasonable searches and seizures. U.S. Const. 4th Amend.; La. Const. Art. 1, Section 5. A search warrant shall not issue except upon a showing of probable cause. U.S. Const. 4th Amend; La. Const. Art. 1, Sec. 5. La. C.Cr.P. Art. 162. In Illinois v. Gates, the United States Supreme Court adopted the “totality of the circumstances” test for determining whether probable cause exists for the issuance of a search warrant. 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In discussing its rejection of the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Court, in Gates, supra 103 S.Ct. at 2328-2330, stated: This totality-of-the circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific “tests” be satisfied by every informant’s tip. ... Moreover, the “two-pronged test” directs analysis into two largely independent channels-the informant’s “veracity” or “reliability” and his “basis of knowledge.” See nn. 4 and 5, supra. There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See, e.g., Adams v. Williams, supra [407 U.S. 143], at 146-147, 92 S.Ct. [1921], at 1923-1924 [32 L.Ed.2d 612 (1972)]; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. See United States v. Sellers, 483 F.2d 37 (CA5 1973). Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary. Adams v. Williams, supra. Conversely, even if we entertain his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip, the “two- pronged test” has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate. Thus, at the time of the presentation of the application for the search warrant, the magistrate must make a practical commonsense decision whether, given all the circumstances set forth in the affidavit, there is a “fair probability” that evidence of a crime will be found in a particular place. State v. Lingle, 436 So.2d 456 (La.1983), citing Illinois v. Gates, supra. Moreover, the role of the reviewing court is to insure that the magistrate had a “substantial basis” for concluding that probable cause existed. State v. Lingle, supra. The magistrate’s determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate’s assessment to be reasonable. State v. Rodrigue, 437 So.2d 830 (La.1983). In this case the reliability of the informant was demonstrated in the affidavit to the search warrant. The information provided by this informant has lead to arrests and convictions in the past and allowed investigative insight into the illicit marketing of drugs within the City. The information provided by the informant was also reliable. That is, the informant advised police that Eftain Duron was dealing cocaine from the Blue Lagoon Lounge at 2112 St. Claude Avenue, an establishment in which he had a financial interest. The informant also stated that the bulk of Duron’s drug supply was located at his residence at 2818 North Rampart. Further, he told the police that Duron would divert some of his potential buyers to Royal and Marigny Streets where he would engage in drug transfers. The informant also advised that on the day before defendant's arrest he had met with him at the lounge and purchased cocaine. The cocaine was produced from a locker cabinet near the downtown side of the entry. He then gave them a description of defendant’s dress and told them defendant had parked his truck outside the lounge. Through independent investigation the police were able to verify Duron’s description and they viewed his truck parked where the informant had stated. They also followed him from the bar to Royal and Marigny Streets where they observed him engage in what appeared to be a drug transaction. During this time the officers observed this defendant stop at the North Rampart Street address which the Cl had told them was Duron’s residence. Upon entering the Blue Lagoon Lounge the officers observed the cabinet in the location of the bar where they were told it would be. Therefore, considering the reliability of the informant and the overall reliability of his information, as partially verified by the investigating authorities, we conclude that under the totality of circumstances test, the magistrate had a substantial basis for concluding that probable cause existed for the issuance of the search warrants. Accordingly, the trial judge correctly denied the defendant's motion to suppress the evidence in this case. This assignment lacks merit. In his second assignment of error, Duron contends the trial court erred in not granting his motion for a judgment of acquittal which was lodged at the close of the State’s case. Louisiana Code of Criminal Procedure Article 778 provides for a motion for acquittal: Art. 778. Motion for acquittal In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction. * * * # # * This court in State v. Price, 454 So.2d 377 (La.App. 4th Cir., 1984) utilized the standard expressed by the Supreme Court in State v. Hargrave in reviewing such a motion. 411 So.2d 1058 (La.1982). In Hargrave, supra the Court held that “the deni al of such a motion may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion.” In this case it was the responsibility of the State to prove that the defendant exercised actual or constructive possession of cocaine with intent to distribute. The State presented the testimony of the two police officers who were involved in this case, as well as the cocaine and monies seized from a locker in the bar owned by the defendant and over which he had dominion and control. The officers witnessed an apparent drug transaction involving Du-ron, the elements of which verified facts given to them by the Cl. Such evidence was sufficient for the court to conclude that the State had presented some evidence of the defendant’s commission of the crime charged. Under these circumstances, the trial court correctly denied the defendant’s motion for a judgment of acquittal. This assignment lacks merit. For the reasons assigned the conviction and sentence of Eftain Duron are affirmed. AFFIRMED. ¡EXHIBIT A'

DOUCET, Judge. For the reasons assigned in the consolidated case of Nasello v. Transit Casualty Company, et al, 524 So.2d 1235 (La.App. 3rd Cir.1988), rendered this day, the judgment appealed is AFFIRMED in accordance with the views expressed in the companion case. AFFIRMED.

In re Jones, Angela; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 63,662; to the Court of Appeal, First Circuit, No. 2013 CA 0482. Denied. JOHNSON, C.J., and HUGHES, J., would grant.

CIACCIO, Judge. Petitioners appeal a summary judgment dismissing their “Petition To Annul Probated Testament.” Petitioners argue that summary judgment was improper because there remains a genuine issue of material fact, viz., whether decedent was domiciled in Louisiana or Mississippi. We affirm, holding that decedent’s domicile is not a material fact, and that the judgment of the district court is correct as a matter of law. Approximately two years before her death decedent came to New Orleans from her home in Mississippi to receive medical treatment. Because of her ill health she remained in New Orleans without re-toning home. On June 3,1986, she died at her residence in New Orleans. On November 5, 1985, decedent had executed a will in proper statutory form under La.R.S. 9:2442. On February 16,1986, she had executed a will in the presence of two witnesses, a form not recognized in Louisiana, but alleged by petitioners to be valid in Mississippi. After her death the statutory will of November 5,1985, was presented to and probated by a Louisiana court; the will of February 16,1986, was presented to and probated by a Mississippi court. In the succession proceedings in Louisiana petitioners filed a petition to annul the probated will of November 5, 1985. Petitioners argued that the February 16, 1986, will revoked the earlier statutory will, and relied on the Uniform Probate Law, La.R.S. 9:2421 et seq., in asserting the validity of the later will. Petitioners relied particularly upon La.R.S. 9:2423: Sec. 2423. Admission to probate; force and effect If upon the hearing, it appears to the satisfaction of the court that the will has been duly proved, allowed, and admitted to probate outside of this state, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, which probate shall have the same force and effect as the original probate of a domestic will, (emphasis supplied.) Petitioners opposed the motion for summary judgment to dismiss the petition by arguing that the state of decedent’s domicile was an unresolved material fact. Petitioners argued that if when she executed the will decedent was domiciled in Mississippi and the will was valid under Mississippi law, then the will, having been probated by a Mississippi court, must be admitted to probate by the Louisiana court under La.R. S. 9:2423. The district court granted summary judgment dismissing the petition to annul. To have effect in Louisiana, a will executed in Louisiana must conform to the formalities of Louisiana law on testaments. La.C.C. Arts. 1570 and 1595; La.C.C. Art. 15. Both of decedent’s wills were executed in Louisiana, but only one conforms to Louisiana’s formal requirements for testaments. Only that one, therefore, can be given effect in Louisiana. Although the Uniform Probate Law, particularly La.R.S. 9:2423, appears to support petitioners’ position, we hold that its provisions apply only to wills executed outside of Louisiana. We reach this interpretation after reference to other laws on the same subject matter. La.C.C. Art. 13. Other laws which provide for giving effect in Louisiana to wills which do not conform to Louisiana’s formal requirements refer to wills made outside of Louisiana. La.C.C. Art. 15 provides, Art. 15.** Choice of law The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed. But the effect of acts passed in one country to have effect in another country, is regulated by the laws of the country where such acts are to have effect. The exception made in the second paragraph of this article does not hold, when a citizen of another state of the union, or a citizen or subject of a foreign state or country, disposes by will or testament, or by any other act causa mortis made out of this state, of his movable property situated in this state, if at the time of making said will or testament, or any other act causa mortis, and at the time of his death, he resides and is domiciliated out of this state. Immovables situated in this state, with their accessories, acquired by a married person, are subject to the legal regime of acquets and gains, regardless of his domicile. Movables, wherever situated, are subject to the law of the domicile of the acquiring spouse. Persons who reside out of the state, cannot dispose of the property they possess here, in a manner different from that prescribed by the laws of this state. * * * * * * (emphasis ours.) La.R.S. 9:2401 provides, Sec. 2401. Will executed outside state A will executed outside this state in the manner prescribed by the law of the place of its execution or by the law of the testator’s domicile, at the time of its execution shall be deemed to be legally executed and shall have the same force and effect in this state as if executed in the manner prescribed by the laws of this state, provided the will is in writing and subscribed by the testator. La.C.C.P. Art. 2888 provides, Art. 2888. Foreign testament A written testament subscribed by the testator and made in a foreign country, or in another state, or a territory of the United States, in a form not valid in this state, but valid under the law of the place where made, or under the law of the testator’s domicile, may be probated in this state by producing the evidence required under the law of the place where made, or under the law of the testator’s domicile, respectively. Further, La.R.S. 9:2423 provides that the wills admitted to probate under its provisions, “shall have the same force and effect as the original probate of a domestic will.” A “domestic will” is a will executed in Louisiana. La.R.S. 9:2423 must apply, therefore, to non-domestic wills, wills executed outside of Louisiana. Decedent’s will of February 16, 1986, is apparently valid in Mississippi, and could be probated here if it had been executed outside of Louisiana. But the will was executed in Louisiana and does not conform to the formalities of Louisiana law on testaments. The will is, therefore, null and void under Louisiana law, La.C.C. Art. 1595; decedent’s domicile is immaterial. Accordingly, we affirm the district court’s summary judgment dismissing the petition to annul. Petitioners shall pay all costs of these proceedings. AFFIRMED. SCHOTT, J., dissents and assigns reasons. Civil Code article designations are those used after the 1987 revision which included some redesignations. La.C.C. Art. 13 reproduces the substance of Article 17 of the Louisiana Civil Code of 1870. La.C.C. Art. 15 is the redesig-nation for Article 10 of the Louisiana Civil Code of 1870. See footnote *, ante.

G. WILLIAM SWIFT, Jr., Judge Pro Tem. The principal issue presented by this appeal is whether or not the trial court erred in recognizing an unrecorded vendor’s privilege on a movable mobile home as superior to a subsequently recorded chattel mortgage that was noted on the purchaser’s certificate of title. The defendants, Ronald J. and Deborah L. Reed, purchased a 1986 Sundowner Mobile Home from the plaintiff, W.W. Scott, Sr., d/b/a Scottie’s Camper Sales, for a sales price of $12,185.00. It was agreed by the parties that the price would be met by trading in defendants’ old mobile home valued at $5,500.00 and the remainder would be financed by Allied Finance Company, Inc. (Allied). Plaintiff understood the trade-in was to be free of encumbrances, and when he was informed by the defendants that there was a balance of $5,669.40 due under a mortgage on that home, it was agreed that Scott would pay off this amount to clear the title. The Reeds did not testify at the trial and only the plaintiff said that they agreed to reimburse him for this amount when or after the sale was finally closed. However, his daughter testified that later Mrs. Reed acknowledged they owed her father $5,500.00. It was necessary to order the new mobile home from the factory before the paperwork and payoff could be accomplished. In the meantime Mrs. Reed inspected and approved the home on its arrival and shortly thereafter, on September 4,1985, the bill of sale and chattel mortgage on the Sundown-er mobile home were executed by the parties. Allied paid the plaintiff $6,685.00 and the defendants paid him $169.40, leaving a deficiency of $5,500.00 of the purchase price, according to the plaintiff. Shortly thereafter Allied’s chattel mortgage was forwarded to the Department of Public Safety and was noted on the certificate of title which was issued on October 3, 1985. Scott filed a suit against the Reeds and Allied, praying for a judgment for the $5,500.00 unpaid balance of the purchase price and recognition of a vendor’s privilege on the mobile home in priority over the chattel mortgage of Allied. The claim against Allied for the $5,500.00 debt of the Reeds was dismissed by the trial court by summary judgment. Thereafter judgment was rendered in favor of Mr. Scott against the Reeds for the $5,500.00 which also recognized the plaintiff’s vendor privilege as superior to Allied’s chattel mortgage. Allied has appealed suspensively. We affirm. With the possible exception of whether and when the Reeds were to reimburse Scott for his payment of the $5,500.00 indebtedness owed on their old motor home, there is little, if any, dispute as to the facts in this case. Mr. Scott testified they agreed to do so when he received the payoff from Allied but when this was not done he was assured they had the money and were going to pay him. He said he trusted them to do so. Allied’s representative, Mike Snyder, said he was aware of the terms of the sale as recounted by Scott, including the latter’s retiring the $5,500.00 mortgage on the trade-in. But he did not know about any agreement for reimbursement. Snyder did say that the sale seemed “funny” to him, “something haywire by the way the money was working out” and “Mr. Scott would actually be coming out several thousand dollars in the hole.” We are convinced from the record that the $12,185.00 purchase price of the mobile home was agreed to be the $6,685.00 loan from Allied and the trade-in of the Reeds’ old home free and clear of encumbrances. Since it was valued by the parties at only $5,500.00 and it cost Mr. Scott $5,669.40 to clear the mortgage the Reeds owed him that amount of the pur chase price of the sale. Having been paid by them only $169.40 there exists an unpaid balance of the price for which Mr. Scott has a vendor’s privilege on the object of the sale. We turn now to the ranking of Scott’s unrecorded vendor’s privilege and Allied’s chattel mortgage which has been filed with the Department of Public Safety and noted on the certificate of title to the Sundowner mobile home. A vendor’s privilege or lien on movables is provided by LSA-C.C. Articles 3217 and 3227. The former says in part: “The debts which are privileged on certain movables, are the following: # * * # * * 7. The price due on movable effects, if they are yet in the possession of the purchaser.” Article 3227 reads in pertinent part as follows: “He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.” Thus, this privilege attaches to the property sold at the time of the sale to secure the payment of the purchase price, and it is lost when the vendee loses possession of the movable. W.T. Grant Company v. Mitchell, 263 La. 627, 269 So.2d 186 (1972), aff’d 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); United Credit Company v. Croswell Co., 219 La. 993, 54 So.2d 425 (1951). Though unrecorded it is generally superior in rank to a subsequently executed and recorded chattel mortgage. Arenson Inter., Inc. v. Shelving Systems Corp., 369 So.2d 1212 (La.App. 2 Cir.1979). Under our civil code the sale contract is perfected as soon as there exists an agreement for the object and for the price, although the object has not yet been delivered, nor the price paid. LSA-C.C. Art. 2456. In the present case the bill of sale for the mobile home from Scott to the Reeds and Allied’s chattel mortgage were both dated September 4, 1985. However, the certificate of title reflects that it was not issued until October 3, 1985. There is no proof in the record as to when it was received and validated by the secretary of the Department of Public Safety. Consequently, Allied’s chattel mortgage did not become effective against third parties on the date of its execution and therefore was inferior in rank to Scott’s prior vendor’s privilege. See LSA-R.S. 32:710(B)(l)(b) and (c) which in this respect provide: “B. (l)(b) Every such mortgage other than one securing a floor plan loan shall be effective as against third persons as of the time of its execution by the parties if the chattel mortgage is received and such receipt is validated by the secretary of the Department of Public Safety within fifteen days after such date of execution. However, in the case of an authentic act the time of execution shall be the date of execution before a notary public or other duly authorized officer, if by duly acknowledged private act, the date of signing by the parties shall be the time of execution. (c) If the chattel mortgage is not received and such receipt is not validated by the secretary of the Department of Public Safety within fifteen days after such date of execution, it shall be effective as to all persons from the date such chattel mortgage is delivered to the secretary, and the same shall be superior in rank to any privilege or preference arising subsequently thereto.” The appellant acknowledges that generally an unrecorded vendor’s privilege on a movable is superior in rank to a subsequently recorded chattel mortgage. However, it contends this is not the case as to vehicles subject to our certificate of title law. We do not agree. See Universal C.I.T. Credit Corporation v. Parker, 117 So.2d 660 (La.App. 2 Cir.1960), and Tallulah Finance Company v. Matthews, 116 So.2d 121 (La.App. 2 Cir.1959). While LSA-R.S. 32:710 has been amended several times since these cases were decided, there is no indication the legislature has ever intended to change this rule as to ranking of liens and privileges. Furthermore, Allied’s representative, Snyder, readily admitted that everything was agreed between the Reeds and Scott some time before the chattel mortgage was prepared and the unit had been delivered before the loan was closed. He testified: “Q. Mike, at the time that the chattel mortgage documents were actually executed you had been supplied by Mister Scott and the Reeds what the exact amount of the sales price was. Had you not? A. Yes, we had. Q. Okay. You had been supplied what the identity of the trailer was — the serial number and whatnot — so that you could prepare your mortgage papers? A. Yes, that’s correct. Q. So at that point everything was squared away between them except for Mister Scott actually receiving the money in his hand so far as you were concerned? I mean they had agreed as to what was going to be sold; they had agreed as to how much was going to be paid for it; the only thing that hadn’t happened was the money had not been transferred and the unit wasn’t delivered? A. That’s correct. Q. Okay. A. Well the unit had been delivered at the time that the loan was done.” There being an agreement between the parties as to the object and price prior to September 4, 1985, it is clear that the sale was complete and the vendor’s privilege existed even before the chattel mortgage was prepared on that day. LSA-C.C. Art. 2456. We conclude for these reasons that the plaintiff’s vendor’s privilege for the unpaid $5,500.00 of the purchase price primed Allied’s subsequently executed and recorded chattel mortgage. From our review of the record we cannot agree with appellant’s contention, that if there was any agreement by the Reeds to reimburse Scott the $5,500.00 which he paid for them to clear the mortgage on the trade-in so that it could be sold, this was a separate and distinct obligation from the sale and no privilege on the object resulted. We are convinced it was an integral part thereof. We also cannot accept the defendant’s other contention, that Allied relied to its detriment on Scott’s failure to inform it that he would ever enforce a security interest in the mobile home, and therefore he is estopped from doing so under LSA-C.C. Art. 1967. That article reads in part: “A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.” There is no indication in the record that Allied relied on any promise by Scott in this transaction. He, of course, said nothing about enforcing any vendor’s privilege because he fully expected to be reimbursed by the Reeds for the $5,500.00. Mr. Snyder was aware of the details of the sale and recognized that Scott was being shorted by this amount of the total purchase price. Certainly, it was not reasonable for his company to claim detrimental reliance from Scott’s failure to tell him he was going to enforce his vendor’s privilege if the Reeds did not pay. All of the facts were available to Mr. Snyder and he had noted there might be problems in the future. Mr. Scott’s failure to have the Reeds execute a promissory note and a chattel mortgage might be considered poor business practice, but he is not estopped from exercising his legal rights in collecting the $5,500.00 due by the Reeds. For the foregoing reasons, the judgment of the trial court is affirmed. All costs are taxed to the defendant-appellant, Allied Finance Company, Inc. AFFIRMED.

CHEHARDY, Chief Judge. Defendant, Roy L. Simon, was charged by bill of information with possession of cocaine in violation of LSA-R.S. 40:967. Upon the denial of his motion to suppress the evidence, he withdrew his plea of not guilty and entered a plea of guilty, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to seek appellate review of the denial of his motion to suppress evidence. Defendant appeals, contending he abandoned the physical evidence at a time when an illegal stop was imminent and, therefore, the trial court erred in denying his motion to suppress. The evidence reflects that on the night of March 12, 1986 at approximately 10 p.m., Officer Henry Saacks and his partner were driving a patrol car through an area in Jefferson Parish known for a high incidence of drug crimes when they observed the defendant knocking on an apartment door. Upon seeing the patrol car the defendant turned and walked quickly away from the apartment. Officer Saacks then got out of the police vehicle and began following the defendant. While turning the corner of a building defendant dropped a clear plastic bag and continued to walk. During the foregoing events Officer Saacks’ partner was driving around the block in an effort to block defendant’s path and, consequently, did not see defendant drop the plastic bag. Officer Saacks picked up the plastic bag and he and his partner observed that it contained a white powdery substance which they believed to be cocaine. The defendant was detained. A narcotics unit identified the substance abandoned by defendant as cocaine. Defendant was then placed under arrest. The narrow question presented for review is whether or not an illegal detention was imminent when the defendant abandoned the cocaine. The Fourth Amendment to the U.S. Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Both state and federal jurisprudence recognize the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). This right is codified in LSA-C. Cr.P. art. 215.1. The constitutional guaranty against unreasonable searches and seizures does not, however, limit police contact with individuals to investigatory stops. Every encounter between a police officer and a citizen is not an intrusion requiring objective justification under the Fourth Amendment. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). As long as a person remains free to disregard a police encounter and walk away, there has been no intrusion upon that person’s liberty. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); State v. Belton, 441 So.2d 1195 (La.1983). “[I]t is only when the citizen is actually stopped without reasonable cause or when that stop is imminent that the right to ‘be let alone’ is violated.” State v. Ryan, 358 So.2d 1274, 1276 (La.1978); State v. Chopin, 372 So.2d 1222 (La.1979). Examples of circumstances which might indicate that a citizen is not free to leave include some physical touching of the citizen by the police officer, the use of language or tone of voice indicating that compliance with the officer’s request might be compelled, the threatening presence of several police officers, and the display of a weapon by a police officer. United States v. Mendenhall, supra. Property abandoned without any prior unlawful intrusion into a citizen’s right of freedom from governmental interference may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights. State v. Andrishok, supra. In the instant case, Officer Saacks had the right to get out of the patrol car and follow the defendant. The officer did not verbally address the defendant. Nor did he touch the defendant physically. The defendant remained free to walk away. Only after the defendant discarded the cocaine in Officer Saacks’ immediate view was he detained. The actions of the police officers prior to defendant’s abandonment of the contraband did not intrude on defendant’s liberty or privacy. Therefore, the seizure of the cocaine was legal. We find the trial court did not err in denying defendant’s motion to suppress the physical evidence. For the foregoing reasons, defendant’s conviction and sentence are affirmed. AFFIRMED.

KNOLL, Judge. This appeal concerns the issue of prescription. W.R. Cason appeals the dismissal of his reconventional demand against Ernest G. Dugas for the rescission of a stock sale between them on the basis of fraud, and sought damages from Dugas for his misrepresentation or suppression of the true value of the stock. On June 3, 1982, Dugas sold Cason 24 shares of A.S.C. Drilling Fluids, Inc. stock. Pursuant to a written agreement of sale, Cason allegedly paid Dugas $32,000 as a down payment and signed a promissory note for $112,000 which was payable in 96 equal installments of $2,019.27 beginning August 3, 1982. On April 14, 1986, Dugas sued Cason alleging: 1) non-payment by Cason of $13,-000 of the down payment on the purchase price of the stock; and 2) failure to pay any of the installment payments provided in the promissory note. Cason filed a general denial answer and reconventional demand against Dugas alleging misrepresentation or suppression of the true value of the stock and requested: 1) rescission of the contract on the basis of fraud; 2) reimbursement of all payments Cason made on the purchase price as well as interest and attorney’s fees; and 3) $300,000 damages Cason sustained as a result of Dugas’ alleged fraud and misrepresentation. The issue presented is whether the reconventional demand was a delictual action or an action to rescind a conventional obligation. The trial court ruled that Cason’s recon-ventional demand was a delictual action, therefore, it prescribed in one year since the claim was not asserted within one year of the stock sale; however, it subsequently allowed him to amend his answer to plead fraud and misrepresentation as affirmative defenses. When Cason amended his answer to plead the affirmative defenses, he also included a demand for damages. Du-gas, supported by the trial court’s previous ruling that the reconventional demand prescribed, filed a motion to strike the alleged damage claim in the amended answer. The trial court granted Dugas’ motion to strike, ordering the deletion of those portions of the amended answer which sought damages. Cason separately appealed the judgments which granted Dugas’ peremptory exception and the motion to strike, the latter appeal bearing Docket Number 87-1080 for which we render a separate decree. Because of its connexity with the judgment dismissing Cason’s reconventional demand on the peremptory exception of prescription, we maintained Cason’s right to appeal the judgment on the motion to strike, an interlocutory judgment, and on the basis of judicial economy, consolidated them for review. Cason appeals urging that the trial court erred as a matter of law: 1) in granting Dugas’ exception of one year liberative prescription; 2) in ruling that he could not assert a reconventional demand based on fraud or misrepresentation; and 3) in strik ing Cason’s request for damages in an amended answer which asserted affirmative defenses of fraud and misrepresentation. Finding that Cason’s reconventional demand was an action to rescind a conventional obligation, we reverse and remand. PRESCRIPTION Cason contends that the trial court erred in finding that his reconventional demand which sought rescission of the stock sale because of fraud and damages was a delic-tual action governed by the prescriptive period of one year. We agree. From the outset we note that the written contract at issue was confected in 1982, well before the effective date of the revised obligations articles. Where the revised articles do not alter the substance of the articles in effect in 1982, when the parties contracted, we will refer to the revised articles. If a codal article number is followed by a particular date, the reference is to the civil code in force as of that date. The issue of Dugas’ alleged fraud in the sale of the colórate stock is the essence of Cason’s reconventional demand. A party’s consent to a contract may be vitiated by error, fraud, or duress. LSA-C.C. Art. 1948. The party against whom rescission is granted because of fraud is liable for damages. LSA-C.C. Art. 1847(9) (1870). Cason’s claim for damages in the case sub judice is inextricable from his demand for rescission because without the judicial rescission of the contract Cason may not be awarded damages. Therefore, it is clear that Cason’s claim in reconvention for rescission of the contract and damages arises ex contractu. LSA-C.C. Art. 2221 (1870), as amended by Acts 1980, No. 308, provides in pertinent part: “In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by [a] particular law, that action ^may be brought within ten years.” We find that the applicable prescriptive period for Cason’s reconventional demand against Dugas for rescission and damages is ten years. In accord: Succession of Davis, 463 So.2d 723 (La.App. 4th Cir.1985). Because ten years had not elapsed since the date of the agreement between Dugas and Cason, the trial court erred in its dismissal of Cason’s reconventional demand on the basis that it had prescribed. Having determined that Cason’s claim against Dugas arises ex contractu, we reverse and set aside the judgment to strike the request for damages in Cason’s recon-ventional demand. For the foregoing reasons, we reverse the ruling of the trial court, overrule Du-gas’ exception of prescription, and remand this matter to the trial court for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed to Dugas. REVERSED AND REMANDED. . The 1984 amendments now provide for prescription in LSA-C.C. Art. 2032: "Action for annulment of an absolutely null contract does not prescribe. Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud. Nullity may be raised at any time as a defense against an action on the contract, even after the action for annulment has prescribed." Even under the shortened prescriptive period for actions for the annulment of relatively null contracts, Cason's reconventional demand would not have prescribed.

FORET, Judge. Defendant, Robert Kohl, was charged by indictment with two counts of indecent behavior with a juvenile, in violation of La. R.S. 14:81. A jury of six found defendant guilty as charged, and he was sentenced to serve four years at hard labor on each count, with the sentences to run concur rently. On appeal, eight assignments of error are alleged by defendant: 1. The trial court erred in failing to require the state to describe with particularity the alleged dates of each count of the alleged offenses, so as to allow defendant to adequately prepare for the defense and/or to allege with particularity such as to preclude double jeopardy. 2. The trial court erred in that there was no evidence that the requirement that the offender had the “intention of arousing or gratifying the sexual desires of either person” was met, which is an essential element of each count of the crimes charged. 3. The trial court erred in that there was prosecutorial misconduct in the course of the trial in that evidence of another crime, that attempted bribery to affect the outcome of the trial and civil litigation was introduced through improper questioning of the defendant, or in the alternative. 4. The trial court erred in that there was prosecutorial misconduct in the course of the trial in that evidence that the defendant paid Tommy Fountain money to have the charges “settled” through improper questioning of the defendant was introduced. 5. The trial court erred in that evidence obtained through improper questioning by the district attorney of the defendant, brought out over objection that the defendant had paid Tommy Fountain a large sum of money to bring about settlement of the civil case and this action; which questions and the evidence of the actions taken by the defendant in regard to attempting to settle was improper, prejudicial and so prejudicial as to require a new trial. 6. The trial court erred in failing to meet the requirements of La.C.Cr.P. Art. 894.1 as he did not state his reasons for the sentence with sufficient particularity. 7. The trial court erred in that the defendant should have been granted a new trial. 8. The trial court erred in that the defendant should have received a suspended sentence in the absence of granting a new trial. Evidence produced at trial indicated that defendant’s wife provided child-care services for young children at the Kohl’s residence in Lafayette Parish. Between September, 1980 and November, 1982, childcare services, including overnight stays, were provided to Nancy Hardin, age 7. Similarly, between January, 1982 and December, 1984, child-care services, including overnight stays, were provided to Kimberly Mier, age 8. During the course of the overnight visits when Mrs. Kohl baby-sat for Nancy and Kimberly, the two girls testified that defendant would come into the bedroom where they were sleeping, pull down their underwear, and rub parts of his face, beard, hands, mouth, and tongue on their vaginal areas. Nancy testified that this occurred three or four times to her and Kimberly indicated between ten and twenty times to her. After noticing a significant change in her child’s behavior, Kimberly’s mother confronted her daughter and learned of these incidents. She later reported same to the police in February of 1985. A police investigation was conducted and resulted in the arrest of the defendant; he was later indicted by the grand jury. ASSIGNMENT OF ERROR NO. 1 In the first assignment of error, defendant complains that the trial court erred by not requiring the State to specify the dates on which the alleged offenses occurred, thereby depriving him of the opportunity to adequately prepare his defense and/or subjecting him to double jeopardy. Defense counsel’s argument on this issue is, “How can you defend charges when you do not know the date? Or how many times?” La.C.Cr.P. art. 468 provides, in pertinent part: “The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.” Our review of the jurisprudence reveals ample authority contrary to defendant’s position. In State v. Case, 357 So.2d 498 (La.1978), defendant argued that the bill of information was vague and indefinite, therefore it failed to inform him of the nature and cause of the offenses with which he was charged. After citing La.C. Cr.P. art. 468, the Court noted that the State advised defendant that the lascivious conduct occurred on numerous occasions at defendant’s home during a three-year period. Before concluding defendant's assignment of error lacked merit, the Court stated, “In a continuing sexual relationship of this type, exact dates often cannot be supplied. The record reflects that the State furnished the defendant as much information as was available.” See also State v. Cramer, 358 So.2d 1277 (La.1978); State v. Piazza, 478 So.2d 1318 (La.App. 5 Cir.1985); State v. Ohrberg, 448 So.2d 1316 (La.App. 1 Cir.1984). Given the above cited authority, the trial judge did not commit an error when he refused to require the State to specify the dates of the offenses. While defense counsel assigns as error the trial judge’s error to require the State to specify the dates of the offenses so as to preclude double jeopardy, no argument is presented on that issue, and therefore it will not be addressed. ASSIGNMENT OF ERROR NO. 2 In this assignment of error, defense counsel contends there is insufficient evidence on the element of specific intent. The standard for reviewing sufficiency of evidence is whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. One of the elements of the crime of indecent behavior with juveniles is the commission of any lewd or lascivious act “ with the intention of arousing or gratifying the sexual desires of either person.” Specific intent is defined by La.R.S. 14:10 as “... that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” “Although the existence of such intent is a question of fact, it need not be proven as such, but can be inferred from the attendant circumstances.” State v. Cox, 450 So.2d 1073 (La.App. 1 Cir.1984). After citing language from Cox, supra, defense counsel’s argument on this issue consists of two sentences. He argues, “Here, the defendant denied all charges, and the victims did not testify as to any arousal of the defendant. There is simply no evidence of an essential element of the crime.” Defense counsel’s argument indicates he misunderstood La.R.S. 14:81 for it does not require arousal, but only an intention of arousing or gratifying the sexual desires of either person. One of the victims of this crime testified that defendant entered the room where she was sleeping and pulled her underwear down and began rubbing his face in her vaginal area. Although she was unable to say exactly how many times this occurred, she stated it occurred over fifteen times. The victim was then asked what parts of defendant’s body were used to touch her vagina and she responded, “His face, beard, mouth, hands, and tongue.” The second victim estimated that on approximately five or six different occasions defendant used his hands, face, and tongue in touching her vagina. The facts of State v. Bahm, 490 So.2d 384 (La.App. 5 Cir.1986), are similar to those in the instant case. There were two victims in Bahm, and the first testified that defendant rubbed her genitals and inserted his finger in her vagina, touched her breasts, and exposed his penis to her fifty or sixty times over a three-year period. The second victim in Bahm testified that the defendant exposed his penis to her on two occasions. With respect to inferring specific intent from the actions of defendant, the court in Bahm held, “The facts related by the victims here were sufficient for the trial judge to conclude the defend ant possessed the requisite specific intent to commit the offense.” The facts testified to by the victims in the present case should be sufficient for a rational trier of fact to conclude that the defendant committed these acts with the intention of arousing or gratifying his sexual desires. Therefore, this assignment of error lacks merit. ASSIGNMENT OF ERROR NO. 3 Defense counsel assigns as error the introduction of evidence of another crime (attempted bribery) during the trial. After quoting the line of questioning initiated by the prosecution during which the evidence was admitted, defense counsel states: “This was clearly error.” The questioning defendant complains of is: “Q. Do you recall discussing with Captain Peltier how you paid Mr. Fountain to try to get these charges dropped against you? A. No, it wasn’t that at the time. Q. Did you pay Mr. Fountain $2,500.00 and then another $5,000.00 wired to you by your mother from out of town by Western Union in order to these charges against you dropped? A. Yes, ma’am.” After the questions were asked and answered, defense counsel made a motion for a mistrial based on the introduction of evidence of another crime, bribery or attempted bribery. La.C.Cr.P. art. 770 provides, in pertinent part, that: “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the ... district attorney, ... during the trial or in argument, refers directly or indirectly to: * * * * * * (2)Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; La.R.S. 14:118 defines public bribery as follows: “Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty: (1) Public officer or public employee; or (2) Election official at any general, primary, or special election; or (3) Grand or petit juror; or (4) Witness, or person about to be called as a witness, upon a trial or other proceeding before any court, board, or officer authorized to hear evidence or to take testimony. (5) Any person who has been elected or appointed to public office, whether or not said person has assumed the title or duties of such office. The acceptance of, or the offer to accept, directly or indirectly, anything of apparent present or prospective value, under such circumstances, by any of the above named persons, shall also constitute public bribery.” During the bench conference, the trial judge asked the attorneys who was Mr. Fountain. The Assistant D.A. replied, “Mr. Fountain is a Private Investigator previously employed by Mr. Hayes who was apparently a friend or associate of the Defendant ...” Although defendant admitted to paying money to have these charges dropped, this does not appear to be evidence of bribery or attempted bribery. The reason that it is not bribery or attempted bribery is that the person to whom the money was paid, Mr. Fountain, does not fit in any of the categories of persons enumerated in La.R.S. 14:118. The assistant district attorney informed the court that Mr. Fountain was a private investigator, that therefore he is not a public officer or employee; an election official; grand or petit juror; a witness; nor a person elected or appointed to public office. As defendant limits his argument to evidence of bribery or attempted bribery and it has been shown that the bribery statute is inapplicable, this line of questioning did not introduce evidence of another crime. Therefore, defendant was not entitled to a mistrial under La.C.Cr.P. art. 770, and this assignment lacks merit. ASSIGNMENTS OF ERROR NOS. 4 and 5 Since defense counsel appears to be arguing the same issues in both assignments of error nos. 4 and 5, these assignments of error will be treated as one. Defense counsel contends that the questioning which brought out the fact that defendant paid someone to have these charges dropped was so prejudicial as to require a mistrial. La.C.Cr.P. art. 775 requires the granting of a mistrial, upon the motion of a defendant, when prejudicial conduct in the courtroom makes it impossible to obtain a fair trial. The determination as to whether a mistrial should be granted under this provision is within the sound discretion of the trial judge, and denial of a motion for a mistrial will not be disturbed on appeal absent an abuse of that discretion. A motion should be granted only where the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Smith, 433 So.2d 688 (La.1983). While it must be conceded that defendant’s affirmative answer to the question of whether he paid someone money to have these charges dropped was prejudicial, it cannot be said that the prejudice was so substantial as to deprive defendant of any reasonable expectation of a fair trial. Defense counsel did not take the opportunity of redirect examination to rehabilitate defendant regarding what was brought out by the assistant district attorney nor did he request the trial judge to admonish the jury. Hence, the trial judge did not err in refusing to grant a mistrial. Therefore, these assignments of error lack merit. ASSIGNMENT OF ERROR NO. 6 In this assignment of error, defense counsel asserts that the trial judge failed to comply with La.C.Cr.P. art. 894.1 by not stating reasons for the sentence. La.C.Cr.P. art. 894.1 requires the trial judge to "... state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” It is not necessary for the trial court to articulate every factor presented in Art. 894.1, but the record must reflect that the trial court adequately considered them in particularizing the sentence to the defendant. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitigating against it. State v. Smith, 426 So.2d 738 (La.App. 3 Cir.1983). Failure to adequately comply with Art. 894.1 does not necessitate vacating the sentence or warrant a remand for resentencing if the record illumines and supports the sentencing choice. State v. Jones, 478 So.2d 764 (La.App. 3 Cir.1985). The trial judge did not adequately comply with La.C.Cr.P. art. 894.1. Prior to sentencing defendant, the court stated: “All right. Mr. Kohl, the Court has ordered a pre-sentence investigation on you, and your record is fairly clean. There was an arrest back in ’79 and another arrest out of state. However, considering the circumstances of the crime committed, the Court feels that a sentence of four (4) years at hard labor with the Department of Corrections on each case, to run concurrently, would be proper, and the Court will so sentence you.” The court makes reference to a pre-sen-tence investigation, however, the report from such investigation was not made part of the record. It appears the trial judge considered only two things in sentencing defendant. First, his relatively clean arrest record was given consideration and, second, the circumstances of the crime committed were considered. As the record in the present case is basically devoid of reasons for sentencing, the trial judge failed to comply with Art. 894.1. Therefore, this assignment of error has merit. ASSIGNMENT OF ERROR NO. 7 In this assignment of error defendant contends the trial court erred in denying the motion for a new trial. The entirety of defense counsel’s argument is, “The defendant-appellant should have been granted a new trial for the reasons set forth herein. The court erred in denying the motion for a new trial.” In the motion for new trial, three grounds were alleged for the granting of a new trial. The first dealt with the lack of specification of dates in the indictment, and this issue was dealt with in assignment of error no. 1. The second and third grounds were based on the questioning of defendant with regard to money he paid to have these charges dropped, and these issues were dealt with in assignments of error nos. 3, 4, and 5. As the grounds for a new trial were the same as assignments of error nos. 2, 3, 4, and 5, no further discussion is required on this assignment of error. It likewise has no merit. ASSIGNMENT OF ERROR NO. 8 In his final assignment of error, defendant contends he should have received a suspended sentence in the absence of a new trial being granted. La.C.Cr.P. art. 893 (A) provides, in pertinent part: “When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or without hard labor ... may suspend, in whole or in part, for the first conviction only the imposition or execution of any sentence ...” Thus, the decision on whether to grant a suspended sentence is within the discretion of the trial judge. La.C.Cr.P. art. 894.1 (B) contains eleven factors which must be given weight by the trial judge in determining whether to suspend the sentence. As noted in assignment of error no. 6, the record does not reflect that the trial judge gave adequate consideration to the factors in Art. 894.1, and therefore it is not possible to determine if the trial judge abused his discretion in this case. The conclusion reached in assignment of error no. 6 was that remand was necessary for the failure to comply with Art. 894.1 and the same conclusion applies to this assignment of error. This assignment of error appears to have merit. DECREE For the foregoing reasons, we affirm the convictions of defendant. We vacate the sentences and remand for resentencing in accordance with law. AFFIRMED AND REMANDED FOR RESENTENCING. DOMENGEAUX, J., concurs in part and dissents in part.

In re Brown, Scott Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. E, No. C-514444; to the Court of Appeal, First Circuit, No. 2013 KW 1410. Denied. WEIMER, J., recused.

EZELL, Judge. | ,In this workers’ compensation case, Dollar General appeals the decision of the workers’ compensation judge (WCJ) below awarding Christy Rogel supplemental earning benefits (SEB), medical expenses, a second medical opinion, as well as penalties and attorney fees. For the following reasons, we hereby affirm the decision of the WCJ in part, reverse in part, and render judgment. Ms. Rogel was the store manager at Dollar General in Starks, Louisiana. On June 17, 2010, she was moving a rolltainer loaded with 600 pounds of charcoal to the store’s sidewalk when the rolltainer tipped, pinning her. As a result, her ankle suffered a chip avulsion. She continued to work until July 6, 2010, when her ankle was surgically repaired by Dr. Geoffrey Collins. She was placed on total disability benefits from this date until she returned to work on September 2, 2010. Ms. Rogel returned to work on light-duty status; however, because she was often alone at the store, she continued to perform duties that required her to labor beyond the light-duty work she was restricted to. In December 2010, Ms. Rogel again presented to Dr. Collins with complaints that her ankle pain was getting worse and affecting her work. Eventually, a functional capacity evaluation was ordered which found swelling, tenderness, decreased mobility, and an abnormal gait and standing mechanics. The functional capacity evaluation and Dr. Collins recommended limitations on standing and walking. Dr. Collins ultimately decided that a second surgery was needed to remove hardware placed on the ankle during Ms. Rogel’s first surgery. This surgery was delayed when Ms. Rogel suffered chest pains during her pre-sur-gery physical and she was taken via ambulance to the hospital. She was cleared, but could not be anesthetized until a complete cardiac work-up was performed. | ¾While Dollar General sought to authorize this work-up, an error by Dr. Collins’ office delayed this for several months. Ms. Ro-gel eventually resigned her position in April 2011. After that, the second surgery was performed. Ms. Rogel filed the current workers’ compensation action seeking SEB, medical expenses, and penalties and attorney fees. The WCJ awarded her SEB, medical expenses related to her hospitalization for chest pain, and penalties and attorney fees for Dollar General’s failure to timely pay those claims. The WCJ also rejected Dollar General’s allegations that Ms. Rogel committed fraud under La.R.S. 23:1208 and approved a second medical opinion for her continuing ankle pain. From that decision, Dollar General appeals. Dollar General asserts six assignments of error on appeal. It claims: 1. The [WCJ] clearly erred in awarding SEBs; 2. The [WCJ] clearly erred in authorizing a second choice of orthopedic surgeon; 3. The [WCJ] clearly erred in ordering defendant to pay medical bills which were not related to the work accident; 4. The [WCJ] clearly erred in finding that defendant did not timely approve the cardiac clearance, when the uniform evidence shows that in fact the employer did just that and; 5. The [WCJ] clearly erred in refusing to apply La. R.S. 23:1208 forfeiture in the face of numerous deliberate misrepresentations made by the plaintiff in order to obtain workers’ compensation benefits; and 6. The [WCJ] clearly erred in awarding penalties and attorney’s fees and in finding that defendant did not reasonably controvert the plaintiffs claims. In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated: In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. Supplemental Earnings Benefits Dollar General first claims that the WCJ erred in awarding Ms. Rogel SEB after she was able to return to part-time work. “The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 28:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009. Poissenot v. St. Bernard Parish Sheriffs Office, 092793, pp. 4-5 (La.1/9/11), 56 So.3d 170, 174 (alterations in original)(footnote omitted). “In determining whether a [workers’ compensation judge’s] finding that an employee has met his initial Lburden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166 Ms. Rogel clearly suffered a workplace accident when the rolltainer fell on her ankle. Dollar General does not dispute that. It is further clear that she is limited to light to medium-duty work with limited time on her feet, prolonged stooping, and in the amount of weight she is to lift. This is supported by both her testimony and Dr. Collins’ medical records. Ms. Rogel testified that she cannot work because of her continued ankle pain. This testimony is uncontroverted by Dollar General. Additionally, the WCJ stated that he found Ms. Rogel to be very credible and praised her work ethic and history of continuing work through pain. This is bolstered by her uncontested testimony that, while between surgeries, she performed duties at a level higher than those she was limited to by her doctor because that work needed to be done and Dollar General would not hire additional help. Based on the WCJ’s evaluation of MS. Rogel’s credibility and the record before this court, there is reasonable basis for the workers’ compensation judge’s award of SEB. What is more, Dollar General has failed to prove that Ms. Rogel is “physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location.” Poissenot, 56 So.3d at 174. Accordingly, this assignment of error is without merit. Second Choice of Physician In its second assignment of error, Dollar General claims that the WCJ erred in authorizing Ms. Rogel a second medical opinion regarding her ankle. Louisiana 15Revised Statutes 23:1121(B) provides that an employee has a right to select one treating physician in any field or specialty. However, Scott v. Piccadilly Cafeteria, 97-1584 (La.App. 3 Cir. 4/1/98), 708 So.2d 1296, recognized that while La.R.S. 23:1121(B) requires that an employee obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty, an employer may be bound to provide additional expenses from another physician in the same field or specialty as long as the treatment is both reasonable and necessary to alleviate the employee’s symptoms. Here, the WCJ obviously credited Ms. Rogel’s assertion that she continues to experience pain in her ankle, and the WCJ found that the sought-after care might relieve those painful symptoms. While Ms. Rogel’s treating physician, Dr. Collins, was of the opinion that he could do nothing else for Ms. Rogel, his records indicate that she still presented with pain and swelling at her last visit with him. Moreover, Dr. Collins felt that a second opinion was not unreasonable. Thus, the evidence reasonably supports a finding of necessity. Therefore, the WCJ’s finding cannot be clearly wrong. Unrelated Medical Expenses Dollar General next claims the WCJ erred in awarding Ms. Rogel expenses related to hospital visits on March 22 and 28, 2011, arising from incidents of chest pain suffered by Ms. Rogel. We agree. The record reflects that on March 22, 2011, Ms. Rogel was having tests performed as part of a pre-surgery check-up as ordered by Dr. Collins. These included a chest x-ray, blood work, and an EKG. During the EKG, Ms. Rogel began to experience chest pain. The doctor present at the time became concerned enough that an ambulance was called and she was sent to Lake Charles Memorial |fiHospital (LCMH) for diagnosis and treatment for that chest pain. The records from LCMH show that her chief complaint was chest pain which was deep, intensified by moving, and relieved by nothing. The records show that Ms. Rogel had suffered this pain for two months with increasing frequency. She was diagnosed with non-cardiac chest pain. The record is clear that some of the expenses incurred on March 22, 2011, are related to her workers’ compensation claim. The chest x-ray, EKG, and blood-work ordered by Dr. Collins were part of clearing Ms. Rogel for her second surgery. Thus, the charges related to that were correctly awarded by the WCJ. Those include $30.00 to Radiology Associates of SWLA, $218.00 to The Clinic, and $95.00 for charges from the Medical Laboratory. However, the record is also clear that when Ms. Rogel began to experience chest pain during the EKG, she was sent via ambulance to LCMH for treatment of that potentially life threatening condition. There is nothing in the records from LCMH that indicates any pre-surgical cardiac work-up was performed, but rather, that she was simply treated for her chest pain and discharged. While the work-up itself would be related, since it was required to allow Ms. Rogel to have her second surgery on her injured ankle, her chest pain and treatment thereof had nothing to do with the accident at Dollar General whatsoever. Accordingly, the WCJ committed manifest error when he ordered Dollar General to pay for medical expenses not related to Ms. Rogel’s work-place injury. We hereby reverse the awards of $1,228.59 to Acadian Ambulance, and $2,268.00 and $1,146.15 to LCMH. Dollar General also challenges the WCJ’s finding that it is responsible for charges stemming from Ms. Rogel’s visit to Moss Regional Hospital on March 28, 2011. Again, we agree. 17Even accepting as true Ms. Ro-gel’s unlikely assertion that she went to Moss Regional partially to have the cardiac work-up performed and partially due to ongoing chest pain, she testified that no such work up was done at that time. This is also shown by the medical records from Moss Regional. Rather, she testified that the doctor at Moss Regional sent her to Lafayette “to have a complete work up” after the EKG performed there to help in treating her chest pain was normal. Moreover, she stated that she never told anyone at Moss Regional to send Dollar General any of the records from that day, which Dollar General would have needed had the work-up actually been performed. What the medical records from Moss Regional do show is that Ms. Rogel complained of “constant chest pain” which had been ongoing for two days. No work-up is ever mentioned in the records. She was simply treated for anxiety related chest pains, something which has nothing to do with her work-place accident. Accordingly, Dollar General is not responsible for the $610.34 in charges arising from her visit to the hospital there. The WCJ was clearly wrong in his finding that the visit was related to her injury and that finding is hereby reversed. Timely Approval Dollar General’s next assignment of error claims that the WCJ erred in finding it failed to timely approve the cardiac workup required to clear Ms. Rogel for her second surgery. However, while the WCJ did discuss this in his reasons for judgment, the judgment itself makes no mention of or award for anything in connection with that issue. Accordingly, we need not address that assignment of error. | JPraud As its fifth assignment of error, Dollar General claims that the WCJ erred in failing to find that Ms. Rogel committed fraud under La.R.S. 23:1208. An employer claiming that an employee has forfeited his or her rights under La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12. The supreme court further explained: [T]he statute does not require the forfeiture of benefits for any false statement, but rather only false statements that are willfully made for the purpose of obtaining benefits. It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits.... Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits. Id. at 16, 660 So.2d 7. A WCJ’s determination as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239. Further, When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of |9one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted). Here, the record is devoid of any evidence of false statements by Ms. Rogel willfully made for the purpose of obtaining benefits. To the contrary, the WCJ explicitly found Ms. Rogel to be a credible witness, stating that “[a] fair reading of the evidence suggests that at no point did she deliberately misrepresent her previous medical history or exaggerate her injuries from the accident.” Moreover, as noted above, the WCJ was extremely complimentary of Ms. Rogel’s work history and work ethic and felt that Dollar General allegations of fraud were “creative but scarcely credible.” There is nothing in the record which shows this determination to be clearly wrong. Penalties and Attorney Fees Finally, Dollar General claims that the WCJ erred in granting Ms. Rogel penalties and attorney fees for its failure to timely pay benefits and expenses. The Louisiana Supreme Court discussed the meaning of “reasonably controverting a claim” in Brown v. Texas-LA Cartage, Inc., 981063, p. 9 (La.12/1/98), 721 So.2d 885, 890, as follows: In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation case is essentially a question of fact and subject to the manifest error/clearly wrong standard of review. Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224. The record before this court does not show that the WCJ erred in granting Ms. Rogel $2,000.00 in penalties for Dollar General’s failure to pay SEB. Her medical records showed a consistent history of problems, including pain and swelling after even the second surgery. Ms. Rogel remains restricted to light to medium-duty work, despite her prior attempts to work under the harsher duties of her job with Dollar General. Ms. Rogel’s testimony concerning her injuries is supported by her medical records and her testimony that Dollar General failed to accommodate her restricted duties is uncontroverted. We can find nothing in the record which shows the WCJ erred in granting this penalty. Likewise, even though Dollar General would have reasonably controverted the claims for the LCMH, Moss Regional, and Acadian Ambulance expenses reversed above, because it failed to give any reason at all for the failure to pay the medical expenses from March 22, 2011, ordered by Dr. Collins and directly related to her second surgery, we cannot say that the WCJ erred in awarding the $2,000.00 penalty for those smaller, completely related charges. As there is no evidence the WCJ’s awards of penalties and attorney fees were manifestly erroneous, this assignment of error is without merit. Ms. Rogel has answered this appeal seeking additional fees for work done on appeal. Considering our decision affirming the majority of the judgment, Ms. Rogel is entitled to additional attorney fees for work done on appeal, and same will be awarded. INDISPOSITION For the above reasons, the ruling of the WCJ is hereby affirmed in part and reversed in part. The portions of the judgment awarding Ms. Rogel awards of $1,228.59 to Acadian Ambulance, $2,268.00 and $1,146.15 to LCMH, and $610.34 to Moss Regional hospital are reversed. The judgment is affirmed in all other respects. Ms. Rogel is awarded additional attorney fees of $2,000.00 for work performed on this appeal. AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

WARD, Judge. We are called upon in this case to determine whether the 500,000 dollar limitation of La.R.S. 40:1299.42(B)(1) on damages recoverable for injuries caused by the malpractice of a private health care provider violates the Right to Individual Dignity and Access to Courts clauses of the Louisiana Constitution of 1974. The unconstitutionality of the limitation was asserted in a petition for damages filed by Prince A. Williams on behalf of his minor son, Mark L. Williams, for a birth injury allegedly caused by the medical malpractice of Dr. Jack Kushner, the obstetrician who delivered the child on February 11, 1982. After Dr. Kushner admitted liability by settling for his maximum statutory liability of $100,000.00, a jury found damages totalling $1,829,000.00. In response to Williams’s motion for judgment in the full amount of the jury’s verdict, the Louisiana Patient’s Compensation Fund asserted the 500,000 dollar limitation. After the Louisiana State Medical Society and the Louisiana Medical Mutual Insurance Company (LAMMICO) intervened to assert their interests in the case, the Trial Court conducted a lengthy hearing on the question of the constitutionality of the limitation, finally upholding it against all of Williams’s constitutional challenges. Judgment was rendered in favor of Prince Williams for damages of $400,000.00, which, when added to the $100,000.00 paid by Dr. Kushner, brings the judgment to the maximum permitted by R.S. 40:1299.-42(B)(1). In his appeal to this Court, Williams reasserts his claims that the limitation violates Sections 3 and 22 of Article I of the Louisiana Constitution. He also contends the Trial Court erred in refusing to impose penalties and attorney fees against the Patient’s Compensation Fund for its failure to pay his allegedly undisputed claim. Additionally, the Patient’s Compensation Fund appeals the amount of damages, an issue which must be addressed before the constitutional question — which becomes moot unless we affirm damages in an amount which exceeds the limitation. DAMAGES At the jury trial, the parties stipulated that Mark Williams was permanently injured at birth. The injury, which occurred during delivery, is damage to the brachial plexus, the nerves running from the spinal cord to the arm. As a result of the injury, Mark’s right arm and hand are practically useless. The arm hangs, atrophied, at his side. He can move it only slightly from the shoulder and uses it in daily activities as one would use an inanimate object. Expert testimony was presented at the trial to show the effect of Mark’s disability upon his psychological and social development and upon his future earning capacity. Although Mark was not yet three years old at the time of trial, a psychiatrist testified that Mark was developing mental and emotional responses to his physical handicap. He was inhibited, avoiding rather than seeking challenges as would a normal two year old, and he was beginning to display signs of a poor self image. In order to overcome these problems, the psychiatrist recommended a regular course of therapeutic counseling for Mark and his parents. Experts in the fields of economics and occupational therapy and rehabilitation testified that Mark’s career options will be limited by his disability. The experts did not agree as to the amount of the wage loss Mark will suffer, but the highest estimate was well over $200,000.00. In light of all of the evidence of general damages, future medical expenses and loss of earning capacity, we conclude that Mark Williams has damages compen-sable by an award of at least $500,000.00. This conclusion, however, is not an affirm-anee of the jury verdict of $1,890,000.00, but only a finding which makes it necessary for us to consider the alleged unconstitutionality of the statutory limitation which prohibits Williams from recovering more than $500,000.00. THE STATUTE The challenged statute, R.S. 40:1299.-42(B)(1), is part of the Louisiana Medical Malpractice Act of 1975. Among other provisions, the Act offers advantages to private health care providers (including hospitals, physicians, dentists, nurses and others) who qualify under its terms. To become a qualified provider, an individual or legal entity files with the Commissioner of Insurance proof of financial responsibility, in the form of self-insurance or a policy of malpractice liability insurance, of at least $100,000.00. Additionally, the provider pays into the Patient’s Compensation Fund an annual surcharge in an amount actuarially determined by the Insurance Rating Commission. One of the advantages of qualification under the Act is the provision at issue in this case: “The total amount recoverable for any injury or death of a patient may not exceed five hundred thousand dollars plus interest and cost.” R.S. 40:1299.42(B)(1). Within this absolute maximum, the liability of the qualified provider is limited to $100,000.00 for all malpractice claims arising from the injury or death of one person. R.S. 40:1299.42(B)(2). This limitation on the liability of the medical care provider is not challenged in the present case since Williams settled with the medical care provider. Under these provisions, the recovery of a successful malpractice claimant cannot exceed $500,000.00: a maximum of $100,-000.00 from each qualified provider who is liable, with the balance of the award paid by the Patient’s Compensation Fund. The Act further provides that when, as in this case, a qualified provider settles with a claimant for the maximum of $100,000.00, liability is established. La.R.S. 40:1299.-44(C)(5). Only the extent of damages remains to be determined in proceedings against the Insurance Commissioner and the Patient’s Compensation Fund, INDIVIDUAL DIGNITY CLAUSE ANALYSIS The District Court held that the 500,000 dollar limitation did not violate the Individual Dignity Clause of the Louisiana Constitution. In analyzing the limitation under the Individual Dignity clause, Article I, Section 3, the District Court relied upon Sibley v. Board of Supervisors, 477 So.2d 1094 (La.1985) (on rehearing), in which the Court considered a challenge to the constitutionality of R.S. 40:1299.39(B), the section of the Medical Malpractice Act limiting awards against the State to $500,000.00. We agree with the District Court that the Sibley standard is appropriate for analysis of R.S. 40:1299.42(B)(1). Sibley expressly rejected the traditional three-tier scrutiny of federal equal protection analysis in favor of a more meaningful test which reflects the intent of the drafters of the Louisiana Constitution of 1974. The Sibley test is tailored to the language of the Individual Dignity clause which, in effect, contains its own standards of analysis: No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and in voluntary servitude are prohibited, except in the latter case as punishment for crime. La. Const., Art. I, § 3. For purposes of Individual Dignity clause analysis, Sibley found that an injured malpractice claimant is an individual who has been discriminated against because of physical condition. The law on its face is designed to impose different burdens on different classes of persons according to the magnitude of damage to their physical condition. The statute creates two classes: one, a group of malpractice victims each of whom has suffered damage that would oblige a defendant under our basic law to repair it by paying in excess of 500,000 dollars; another, a class consisting of victims whose damages would not require an award over this amount to make individual reparation. Victims in the former class are prevented from recovering for all their damage, while those in the latter class are allowed full recovery. Sibley, 477 So.2d at 1108. Thus, Sibley has foreclosed the issue of whether there has been discrimination against a person because of physical condition; the remaining question is whether the statute is unconstitutional, violating the Individual Dignity clause, because it “arbitrarily, capriciously, or unreasonably discriminates.” Sibley makes this determination by requiring the proponent of the statute to show that “there is good reason for the statutory classification, that is, that the legislative classification substantially furthers a legitimate state purpose.” Id. at 1109. Apparently, the rationale of Sibley is that if there is good reason for the classification and if the classification substantially furthers a legitimate state purpose, then it is not arbitrary, capricious, or unreasonable. In addition to this new interpretation of the appropriate standard for Louisiana equal protection analysis, Sibley also announced a departure from the longstanding rule that legislation is presumed constitutional with the opponent carrying the burden of proving that a statute violates the constitution. “When the statute classifies persons on the basis of ... physical condition, ... its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis_” Id. at 1107. We now must decide whether the Trial Court erred in finding that the proponents of R.S. 40:1299.42(B)(1) carried their burden of proving that it is not unconstitutional. First, it is appropriate to consider whether the statutory limitation has a legitimate state purpose as its goal. There can be little serious argument, and none is presented in this case, but that the State of Louisiana has a legitimate interest in the health and welfare of its citizens and that this interest extends to the availability of medical care. The Louisiana Supreme Court has found “the guarantee of continued health care services for our citizens at reasonable cost” to be an “appropriate governmental interest.” Everett v. Goldman, 359 So.2d 1256, 1266 (La.1978). The proponents of R.S. 40:1299.42(B)(1) contend that its absolute limitation on damages which may be recovered by a medical malpractice claimant and the classification which that limitation creates are a means by which the state legitimately fosters reasonably-priced medical care from private providers. This contention, which focuses on the relationship between the limitation of R.S. 40:1299.42(B)(1) and the State’s interest in access to private medical care, must be measured by the stringent constitutional rule that a means such as the limitation shall not arbitrarily, capriciously or unreasonably discriminate. Because the proponents must show that the legislature reasonably believed that the means it chose would substantially further the State’s interest, we must closely examine the facts and premises the legislature considered before enacting R.S. 40:1299.42(B)(1). At the District Court hearing, the proponents of the statute, the Patient’s Compensation Fund and the intervenors, introduced testimony and documents describing conditions in the health care and insurance industries prior to the enactment of the Medical Malpractice Act in 1975. Legislators who testified in the District Court confirmed that the legislature had been presented with information which depicted the medical malpractice insurance situation as a threat to the affordability and availability of medical care in Louisiana. They further testified that in approving the 500,-000 dollar limitation on recoverable damages, they had considered the arguments of those opposing the limitation, including the contention that the limitation discriminated against the most seriously injured malpractice claimants. In the words of one legislator, the limitation was “a legislative decision, not a legal decision,” an attempt “to provide as much medical service to as many people at as reasonable a cost as could be provided for in the state of Louisiana.” After hearing five weeks of testimony, the Trial Court concluded that when the legislature passed the Medical Malpractice Act of 1975, it was seeking a solution to a “crisis” that existed in the health care industry of Louisiana, one that would worsen if remedial legislation was not enacted. The Trial Court found that the “crisis,” if allowed to continue, would have jeopardized the state of Louisiana’s legitimate interest in “the guarantee of continued health care services for our citizens at reasonable cost.” The record supports the Trial Court’s finding; it is not manifestly erroneous. And, after accepting this factual finding, we must now only consider whether the Trial Court’s holding that the statute did not violate the Individual Dignity clause was erroneous. Did the legislature select an arbitrary, capricious and unreasonable means to its goal by discriminating against classes of those who are physically handicapped, like Mark Williams, and who have proven damages which exceed the 500,000 dollar limitation? The record before us shows that the legislature intended the provisions of the Medical Malpractice Act as a comprehensive interrelated reform package and that the 500,000 dollar absolute limitation on recovery R.S. 40:1299.42(B)(1) can, as a practical matter, function only in conjunction with the 100,000 dollar maximum liability for providers which is established by R.S. 40:1299.42(B)(2) and with the Louisiana Patient’s Compensation Fund established by R.S. 40:1299.44. Together, these statutory provisions were intended to create an atmosphere of certainty in which insurance companies would be able to write medical malpractice insurance in Louisiana at a reasonable cost. Without a limitation on the size of awards, insurance actuaries, who utilize nationwide claims data, must consider in their rate-setting the increasing risk of higher settlements and limitless judgments. Although there had been few awards in excess of 500,000 dollars (and apparently none in Louisiana) before 1975, consideration in rate determinations of judgments which might exceed 500,000 dollars justified radically higher premiums to cover the risk that an insured might incur such a loss. With a limitation of liability of 100,000 dollars on medical care providers, actuaries can make rate determinations based on a known maximum loss, and premiums paid by medical care providers are lower than if there were no limit. Similarly, with a limitation of 500,000 dollars on the total amount recoverable, the amount of the surcharge medical care providers pay to the Patient’s Compensation Fund is calculated on a known risk, and the additional amount that would be required to cover limitless judgments is unnecessary. Because the cost of increased premiums could reasonably be expected to be passed on to patients, the legislature could have reasonably believed that stabilized insurance rates would retard increases in costs of medical care and would permit medical care providers to offer a full range of services without the threat of exorbitant costs of insurance coverage. Therefore, the legislature, when considering passage of the Medical Malpractice Act, could reasonably have believed the statute would substantially further the state’s interest. We are urged by counsel for Mr. Williams to look at the effects of the Act to determine whether it has in fact accom plished its intended purposes. We decline this suggestion. Whether the statute has in fact achieved its goals is not the question: the Individual Dignity clause is satisfied by our conclusion that the legislature could reasonably have decided that the statute would substantially further a legitimate state purpose; hence it did not act arbitrarily, capriciously, or unreasonably. See, Rudolph v. Massachusetts Bay Insurance Co., 472 So.2d 901, 905 (La.1985), citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981) (supporting our view that the statute need not have in fact achieved the desired effect if the legislature reasonably believed the desired effect would result from the enactment). The statutory scheme which includes the limitation of R.S. 40:1299.42(B)(1) may not have operated in the precise manner intended by the legislature, and it may not have been a panacea. The courts’ role, however, is not to evaluate the statute’s effectiveness but its constitutionality, and we cannot say the Trial Court erred in finding no violation of Louisiana’s constitutional guarantee to Individual Dignity. ACCESS TO COURTS ANALYSIS The second constitutional violation alleged in this case is that malpractice claimants with proven damages in excess of $500,000.00 are denied “an adequate remedy by due process of law and justice” as guaranteed by the Access to Courts clause. La. Const., Art. I, § 22. The Access to Courts clause of the Louisiana Constitution does not prohibit legislative restriction of legal remedies. Rather it operates only to ensure that the courts will be open to provide remedies which are fashioned by the legislature. Article I, Section 22 is, therefore, a mandate to the courts to be open to hear complaints such as that of Mr. Williams; it is not a limit on the legislature. Crier v. Whitecloud, 496 So.2d 305, 309-310 (La.1986). The Trial Court, in denying Williams’s recovery in excess of 500,000 dollars, did not deprive Williams of an opportunity to assert his rights in judicial proceedings, nor did it deny due process. The right which is protected by due process in this case is the cause of action to recover damages for medical malpractice. Having found that right legislatively limited by R.S. 40:1299.42(B)(1) in a manner which is not arbitrary, capricious or unreasonable, we conclude that the Trial Court’s adherence to the limitation does not deprive Williams of an adequate remedy by due process of law. Because we hold that the proponents of R.S. 40:1299.42(B)(1) have shown that it complies with both Section 3 and Section 22 of Article I of the Louisiana Constitution, Prince Williams may recover from the Patient’s Compensation Fund only the balance of his damages not paid by Dr. Kushner, plus interest, up to $500,000.00. Because we hold that the 500,000 dollar limitation on Williams’s recovery is valid, and we have held that he has damages of at least that amount, we need not consider the question of whether the jury’s full award of $1,829,000.00 was excessive. PENALTIES AND ATTORNEY FEES The final issue to be decided in this appeal is whether the Patient’s Compensation Fund is liable for penalties or attorney fees as provided by La.R.S. 22:657 and 658. Williams contends that these sections of the Insurance Code are applicable because the damages payable by the Patient’s Compensation Fund are in the nature of insurance benefits for the claimant, and he alleges that the Fund delayed unreasonably in evaluating his claim and failed to pay him the amount of the claim which he contends was undisputed. We pretermit a decision upon Williams’s allegations that the Patient's Compensation Fund failed to act as it should have because we agree with the District Court’s conclusion that R.S. 22:657 and 658 do not apply in this case. Mark Williams is not an insured, and although the Patient’s Compensation Fund functions in some respects like an excess insurance carrier, it is not governed by the Insurance Code. The penalty provisions of the Insurance Code, R.S. 22:657 and 658, like all such penal statutes, must be strictly construed and cannot be extended by analogy. If the Legislature had intended to penalize the Patient’s Compensation Fund for conduct such as that alleged by Williams in this case, then penalty provisions would have been included in an appropriate, relevant statute. Absent such a provision, Williams is not entitled to recover penalties or his attorney fees. For the reasons stated above, the judgment of the Trial Court is affirmed in all respects, all costs of appeal to be paid by Prince A. Williams. AFFIRMED. . The Louisiana Supreme Court determined that Williams was entitled to a jury trial on the amount of damages recoverable from the Louisiana Patient’s Compensation Fund. Williams v. Kushner, 449 So.2d 455 (La.1984). . This section was amended by Act 435 of 1984 to provide that the limitation shall not apply to "future medical care and related benefits.” Act 435 also enacted R.S. 40:1299.43, the procedural provisions for the exemption of future medical expenses, which expressly states that it applies only to malpractice claims filed on or after September 1,1984. Hence, the absolute 500,000 dollar limitation is applicable in the present case which was filed in 1983.

GOTHARD, Judge. This appeal arises from a possessory action filed by a corporation resisting eviction. From judgment for the plaintiff, the defendant appeals. This suit involves the occupancy by the plaintiff corporation, Wallace C. Drennan, Inc., of a tract of batture land on the East Bank of Jefferson Parish, which Torrania Realty Corporation, defendant and holding company of Drennan, Inc., alleges it owns and leases to Drennan, Inc. Torrania served a notice ordering the corporation to vacate the land for past due rent. In response, Drennan, Inc. filed this suit, captioned “Petition to be maintained in possession and for injunction.” Drennan, Inc. is a thirty-year-old company in the business of fabricating steel for large construction projects. It alleges that the batture property was purchased in the name of Torra-nia Realty Corporation for Drennan, Inc. to use as a storage area for large equipment and is crucial to the company’s operation. Drennan, Inc. asserts it purchased the property but Torrania appeared as owner for financial reasons. Two brothers started the business, with Wallace Drennan, Sr. as president of Wallace Drennan, Inc. and Douglas Drennan as president of Torrania Realty Corporation. The batture property was purchased in 1973. Wallace Drennan, Sr. died in September, 1979 and his sons, Wallace, Jr. and D. Torrey, along with Douglas continued the business. A few years after Wallace Drennan, Sr. died his brother announced to the sons that he owned all the stock in both corporations and would expect Drennan, Inc. to pay rent for the batture. Certain payments were made and documents were signed for Drennan, Inc., but whether or not they represented rent or acquiescence to paying rent is in dispute. At the time this suit was heard, other proceedings, including Drennan, Sr.’s succession and suits concerning ownership of the two corporations, were under way in Orleans Parish. Torrania initiated eviction proceedings, alleging non-payment of rent for 1985 and 1986, and Drennan, Inc. filed this suit on September 23, 1986. The trial court rendered judgment granting a preliminary injunction in favor of the plaintiff. It further ordered the defendant to bring a petitory action to assert any claims of ownership within sixty days, decreeing that the defendant converted the suit into a petitory action by asserting title in itself in the possessory action. Although not formally raised by the appellant, the issues before us are whether Torrania sought to establish title in itself and converted the possessory action into a petitory action and whether Drennan, Inc. was entitled to a preliminary injunction in its possessory action. The applicable articles of the Louisiana Code of Civil Procedure pertaining to pos-sessory actions are as follows: Art. 3655. Possessory action The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. Art. 3657. Same; cumulation with pet-itory action prohibited; conversion into or separate petitory action by defendant The plaintiff may not cumulate the pet-itory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the posses-sory action is abated. When, except as provided in Article 3661(1H3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action. If, before executory judgment in a pos-sessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possesso-ry action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein. Art. 3658. Same; requisites To maintain the possessory action the possessor must allege and prove that: (1) He had possession of the immovable property or real right therein at the time the disturbance occurred; (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; (3) The disturbance was one in fact or in law, as defined in Article 3659; and (4) The possessory action was instituted within a year of the disturbance. Amended by Acts 1981, No. 256, § 1. Art. 3661. Same; title not at issue; limited admissibility of evidence of title In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue. No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove: (1) The possession thereof by a party as owner; (2) The extent of the possession thereof by a party; or (3) The length of time in which a party and his ancestors in title have had possession thereof. See also articles 3656, 3659, and 3660. We first consider whether Torrania by asserting title to the real estate, converted the suit to a petitory action. Torra-nia argues that it merely intended to show its status as landlord and did not seek to have its title judicially approved. As noted above, in a possessory action ownership or title is not at issue and evidence thereto shall be admitted only to prove possession as owner, the extent of possession, or length of time of possession. La.C.C.P. art. 3661. If the defendant asserts title in himself he then converts the possessory action into a petitory action and confesses possession by the party asserting possession. La.C.C.P. art. 3658. In the cases reviewed, the courts carefully examined the defendant’s answer to determine whether he asserted title sufficiently to convert to a petitory action. The general rule of construction appears in Lemoine v. Couvillon, 321 So.2d 37 (La.App. 3rd Cir.1975), writ refused 323 So.2d 471 (La.1975), at 41: All of the allegations in the answer, as well as the prayer, should be considered in determining whether defendant has asserted title in himself. The assertion of title, in order to be sufficient to convert the suit into a petitory action, should consist of some formal claim of recognition of title, rather than an offhand allegation. LSA-C.C.P. art. 3657, Revision Comment (e); Haas Land Company v. O’Quin, 187 So.2d 208 (La.App. 3 Cir.1966); Voisin v. Luke, 234 So.2d 862 (La.App. 1 Cir.1970). In Crowell Land and Mineral Corp. v. Neal, 428 So.2d 496, 499 (La.App. 3rd Cir.1983), the court held that the answer, which asserted corporeal possession of over thirty years, did not contain “substantial material tending toward a formal assertion of title....” The prayer sought only the dismissal of the possessory action and recognition of the defendants’ right of possession. In Fontenot v. Chapman, 377 So.2d 492 (La.App. 3rd Cir.1979), the court found that the defendant’s reference to a disputed parcel of property as “his” should not be so strictly construed as to constitute an assertion of title. In Gaulter v. Gennaro, 345 So.2d 92 (La.App. 1st Cir.1977), the court found that a similar allegation was not a formal claim of title but merely an assertion made to support the defendant’s right to possess as owner. In other cases the court found that there was indeed a conversion from a possessory action to a petitory action. In Phillips v. Donaldson, 494 So.2d 1379 (La.App. 3rd Cir.1986), the defendants claimed record ownership in their answer. In Avery v. Nash, 448 So.2d 841 (La.App. 2nd Cir.1984), the defendant asserted ownership by inheritance and prayed for judgment recognizing his ownership of the disputed property. Finally in Lemoine v. Couvillon, supra, the defendant’s answer asserted his inheritance of an undivided interest in the disputed land from his father, and the prayer sought dismissal of the plaintiff’s demands for possession and in the alternative that he be recognized as a co-owner. As is evident from our brief review, there is no simple rule for deciding whether a posses-sory action has been converted to a pet-itory one. In considering Torrania’s petition we call attention to the following exerpts from its answer: 1. Respondent denies the allegations of fact contained in Paragraph 1 of plaintiff’s petition and rule, except that petitioner is and has been in the immovable property referred to in Paragraph 1 only as a tenant under lease from Torrania Realty Corporation, which is and has been the owner of the said immovable property, as evidenced by the certified copy of the act of sale by which TORRA-NIA REALTY CORPORATION acquired the said immovable property, a copy of which is annexed hereto and made part hereof as if set forth herein in extenso. AND NOW FURTHER ANSWERING the petition and rule of WALLACE C. DRENNAN, INC., TORRANIA REALTY CORPORATION respectfully represents: 8. That TORRANIA REALTY CORPORATION is the owner of the immovable property located in the Parish of Jefferson, State of Louisiana, described more fully as batture Plots A and B, St. Peter Plantation, bearing the municipal address 4720 River Road (M & E, Louisiana Hwy. 611-1) Jefferson Parish, La., as evidenced by the acquisition of TORRANIA REALTY CORPORATION passed before Pat Brown, Notary Public, August 8, 1973, and recorded in the Conveyance Office of the Parish of Jefferson in COB 797, Folio 625, a copy of which is attached to an affidavit of Douglas G. Drennan, which is filed herewith and made part of this petition. 9. That WALLACE C. DRENNAN, INC. has occupied the said immovable property as a lessee from TORRANIA REALTY CORPORATION since 1973 paying to TORRANIA REALTY CORPORATION a portion of the rent thereon, but now being in arrears in the said rent.... WHEREFORE, respondent prays that plaintiff’s proceedings and the rule for a preliminary injunction be dismissed at plaintiff’s cost and that the preliminary injunction prayed for be denied. While the prayer does not contain assertions of ownership, this pleading of Torra-nia Realty Corporation as a whole clearly asserts title to the property in itself and bases its status of landlord on its ownership. No document representing a lease agreement has been produced, other than a copy of the minutes of a board meeting of Wallace C. Drennan, Inc. dated August 1, 1982, which stated that Drennan, Inc. would pay $7,000 annual rental to Torrania. Wallace Drennan, Jr. asserts that his signature was obtained under duress and that he did not pay rent, only taxes. Because Torrania’s position as landlord and its right to evict its alleged tenant depend upon its ownership and as the corporation has asserted title and attempted to introduce a deed into evidence, we believe the trial court was correct in ordering Tor-rania to assert any claim of ownership in a petitory action within sixty days after the judgment became executory. We find no error in the judgment insofar as it granted Drennan, Inc. a preliminary injunction. The appellant concedes that the appellee has occupied the land continuously since 1973, although it alleges appellee was only a tenant. Wallace Drennan, Jr.’s testimony and the exhibits introduced into evidence indicate that during that time Drennan, Inc. has per formed acts indicative of ownership, such as filling the land, installing concrete slabs, and obtaining utilities for the property. Further, if the company were evicted from the batture it would be unable to complete large projects that are already under way. Having made a prima facie case, Drennan, Inc. is entitled to a preliminary injunction to preserve the status quo during the pend-ency of a possessory or petitory action. La.C.C.P. art. 3663. For the reasons assigned above we conclude that the judgment below is correct; however, out of a concern for precision, we amend the judgment in part by adding the words, “or be precluded thereafter from asserting the ownership thereof,” to the final paragraph of the decree so that that portion of the judgment will read: IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that defendant, Torrania Realty Corporation, bring a petitory action to assert any claim of ownership that it has to the property involved in this proceeding within sixty (60) days after this judgment becomes executory, or be precluded thereafter from asserting the ownership thereof. Accordingly, the judgment appealed from is amended in part and as amended, affirmed. AMENDED AND AS AMENDED AFFIRMED. . Art. 3656. Same; parties; venue A plaintiff in a possessory action shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself. The possessory action shall be brought against the person who caused the disturbance, and in the venue provided by Article 80(1), even when the plaintiff prays for a judgment for the fruits and revenues of the property, or for damages. Art. 3659. Same; disturbance in fact and in law defined Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law. A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment. A disturbance in law is the execution, rec-ordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right. Art. 3660. Same; possession A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper. Subject to the provisions of Articles 3656 and 3664, a person who claims the ownership of immovable property or of a real right therein possesses through his lessee, through another who occupies the property or enjoys the right under an agreement with him or his lessee, or through a person who has the use or usufruct thereof to which his right of ownership is subject.

In re Waters, Othell; Walters, J.B.; applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 19365-CA; Parish of Union, 3rd Judicial District Court, Div. “A”, No. 26436. Prior report: La.App., 521 So.2d 788. Denied.

CIACCIO, Judge. From the district court’s rulings on defendants’ motions for discovery and bills of particulars, one defendant and the state have applied to this court for review. No party has filed an opposition. We have consolidated the two applications. By grand jury indictment the State charged that the three defendants “did monopolize, attempted to monopolize, and combined with each other to monopolize the filming trade.” See La.R.S. 51:123. Relator Richard Castleman filed a motion for a bill of particulars, La.C.Cr.P. Art. 484, requesting six particular categories of information. In his application relator complains by number of the answers received to items 1, 2, 4, 5, and 6. In substance, however, the application makes numbers 5 and 6 identical, corresponding to number 6 of his original motion. Nevertheless, the district court minute entry indicates that the court ordered the state to supply information on the “specific acts” requested by relator’s item number 2, and that relator was satisfied with the state’s answers as to items 3, 4, and 5. According to the minute entry the only answers with which relator was unsatisfied and which the court ruled to be good and sufficient were the answers to items 1 and 6. No objections to the court’s rulings are noted by the minute entry. Further, relator’s application does not contain an argument addressing item 6, but argues only as to item 1 requesting a definition of “filming trade.” We will, therefore, address only the request for a definition of “filming trade,” even though no objection to the district court ruling on this issue is noted in the minute entry. Our discussion of relator Castleman’s complaint will be combined with our discussion of the State’s, as relator, first complaint: the district court ordered the State to define trade or commerce. The State’s second complaint is that the district court ordered it to provide defense counsel with information on whether the grand jury or any of its members conducted investigative activities beyond the normal review of evidence, such as interviewing witnesses by telephone, either inside or outside the grand jury session. The State’s third complaint is that the district court ordered it to furnish the court, for in camera inspection, the “rap sheets” of any civilian witness. The minute entry notes the State’s objection to each of the court’s rulings about which it now complains. The function of a bill of particulars is to inform a defendant more specifically of the nature and cause of the charge against him. La.C.Cr.P. Art. 484; State v. Ford, 349 So.2d 300 (La.1977). Relator Castleman’s desire for a definition of “filming trade” stems from his contention that the film industry encompasses many different jobs and activities, and a definition of “filming trade” would “allow defendant to direct and focus his attention on those areas wherein he may have committed suspect acts.” While the state could have contended that defendant was indicted for monopolizing, etc., all aspects of the filming trade, the state has provided relator with the following statement of specific acts alleged to have been committed by relator in violation of La.R.S. 51:123: DEFENDANT 0. RICHARD CASTLE-MAN: did exclude members of the New Orleans community who were not listed in his files from entering an area where hiring was being conducted for a film. Denied film companies other means than through his agency for casting extras for their film. Used taxpayers property for the benefit and furtherance of one talent agency to the exclusion of all others. Used one casting agenct to handle payments of extras he furnished for a film to the exclusion of all others. Received and acted upon information given to him by a co-defendant that was denied others. We find that this statement of specific acts informs relator of the nature and cause of the charge against him, and satisfied his request to be allowed to “direct and focus his attention.” While the statement of specific acts does not directly attempt to define “filming trade,” by serving the function of a bill of particulars and providing relator with what he wanted to know it negates any legitimate purpose for a definition. Relator has received a good and sufficient bill of particulars. The State complains that the court’s order that it define trade or commerce places it in a “trick bag” by forcing it to choose whether the film industry is trade or commerce. First we note that the indictment does not charge monopolization of the film industry but of the “filming trade.” To the extent the State needed to choose between trade or commerce, it apparently has chosen trade. Its “trick bag” argument relies on an erroneous premise. Second, however, trade or commerce is defined by statute: Section 121. Commerce defined Commerce means trade or commerce within this State. La.R.S. 51:121. For the purposes of Title 51, Part IV, Monopolies, of the Louisiana Revised Statutes trade and commerce are interchangeable; they need not be defined and by definition distinguished. Third, to the extent some definition was seen as promoting the requirement of informing defendants of the nature and cause of the charge against them, all three defendants were provided with a statement of specific acts similar in nature to the statement as to defendant Castleman quoted above. With the statements of specific acts all three defendants have received good and sufficient bills of particulars. We reverse the order of the district court that the State define trade or commerce. Next, the State complains about the court’s order that it provide information on whether the grand jury or any of its members conducted investigative activities beyond the normal review of evidence, such as interviewing witnesses by telephone, either inside or outside the grand jury session. The minute entry does not indicate that defense counsel provided any ground for requesting the information. In requiring the State to furnish the information, the court relied on La.C.Cr.P. Art. 442. We find the Court’s order erroneous. La.C.Cr.P. Art. 434 provides, Art. 434. Secrecy of grand jury meetings; procedures for crimes in other parishes A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. ****** While defense counsel appears to request that the State “reveal statutory irregularities in grand jury proceedings,” we find that irregularities concerning the receiving of evidence are not subject to disclosure. La.C.Cr.P. Art. 442 provides, Art. 442. Evidence to be received by grand jury A grand jury shall hear all evidence presented by the district attorney. It may hear evidence for the defendant, but is under no duty to do so. When the grand jury has reason to believe that other available evidence will explain the charge, it should order the evidence produced. A grand jury should receive only legal evidence and such as is given by witnesses produced, or furnished by documents and other physical evidence. However, no indictment shall be quashed or conviction reversed on the ground that the indictment was based, in whole or in part, on illegal evidence, or on the ground that the grand jury has violated a provision of this article. The Official Revision Comment to Art. 442 makes the following observations: Official Revision Comment (a) The rule of the 1928 Code of Criminal Procedure regarding evidence receivable by a grand jury, appeared in the form of a definite limitation. Former Art. 213 stated that the grand jury “can receive no other than legal evidence.” (Emphasis supplied.) However, former Art. 213 was construed by the Louisiana Supreme Court as no more than a direction to the grand jury that it must limit itself in its investigations to the consideration of legal evidence. It could not be employed as authority for a review of the legality of the evidence upon which the indictment was found. State v. Simpson, 216 La. 212, 43 So.2d 585 (1949); see also State v. Britton, 131 La. 877, 60 So. 379 (1913), and State v. Dallao, 187 La. 392, 175 So. 4 (1937). To permit a review of the evidence considered by the grand jury would destroy the veil of secrecy which surrounds the proceedings and testimony presented to the grand jury. [Emphasis ours.] It would also require a complete recordation and transcription of testimony before the grand jury. It is significant that the 1964 Pennsylvania Rules of Criminal Procedure, Rule 208, prohibits the transcription of testimony before the grand jury. The Louisiana jurisprudence is codified by employing the word “should” in the grand jury directive of the third paragraph. The article also expressly prohibits the challenging of an indictment on the ground that it is based, in whole or in part, on illegal evidence. Similarly, the A.L.I. Code of Criminal Procedure rule that the indictment must be based on sufficient legal evidence provides that no indictment or conviction shall be set aside on the ground that there was not sufficient legal evidence. Although the court did not order “review of the evidence considered by the grand jury,” it did order revelation of the manner in which that evidence was received. We discern no legitimate purpose for disclosure of this information which warrants violating the secrecy of the grand jury proceedings. Accordingly, we reverse the order of the district court requiring the State to reveal the requested information about the grand jury. In the last order about which the State now complains the court ordered the State to furnish the Court, for in camera inspection, any civilian witness “rap sheets.” In State v. Whitlock, 454 So.2d 871, 873 (La.App. 4th Cir.1984), this court reasoned and held as follows: In his motion for discovery and inspection, defendant requested a computer printout or “rap sheet” and FBI record of the State’s chief witness, Ward. The state responded it “has no knowledge of any convictions”, which the court ruled was adequate. Subsequently, at the hearing on the motion to suppress and at trial Ward admitted convictions in two other states for destruction of property and for resisting arrest. Defendant contends that after the State became aware of Ward’s record (following the suppression hearing) it should have obtained and produced a rap sheet for impeachment purposes. State v. Harvey, 358 So.2d 1224 (La.1978), after remand 369 So.2d 134 (La.1979). In Harvey, however, the court did not require the State to procure and produce rap sheets of its witnesses; rather, it required the prosecution to state whether it had such records in its possession and, if so, to furnish them to the defendant or the court in camera. At the remand hearing the State advised the court and the defense that the State did not have any rap sheets or information on prior convictions of its witnesses. The Supreme Court noted the State did not have such information and held the State adequately replied to the discovery request. Similarly, in State v. Washington, 407 So.2d 1138 (La.1981), the court found no error in the trial court’s refusal to order the state to obtain “rap sheets” on State witnesses. The trial judge held a hearing and was satisfied the State was not in possession of such documents. This Court recently said “the State has no affirmative duty to find and produce rap sheets.” State v. Alexandra, 451 So.2d 1278 (La.App.1984). This, it logically follows that the State has no affirmative duty to ascertain if its witnesses have prior convictions. Upon request the State is obligated to provide information in its possession regarding the criminal convictions of its witnesses. Here the State declared it had no record of convictions on Ward. The defendant made no contrary showing and the State’s response was adequate. This assignment has no merit. * * * * # * In this case the State has declared that it does not have “rap sheets” on its witnesses. Defendants have made no contrary showing. The State has no duty to obtain “rap sheets” on its witnesses. The State’s response must, therefore, be considered good and sufficient. Accordingly, we reverse the district court’s order requiring the State to furnish it with any civilian witness rap sheets. In summary, we find that defendant Cas-tleman has received a good and sufficient bill of particulars and the State need not provide any further definition of “filming trade.” We reverse the orders of the district court about which the State has complained, namely: (1) that it define trade or commerce; (2) that it provide information on the manner in which the grand jury received evidence; and (3) that it furnish the court with “rap sheets” of civilian witnesses. This matter is remanded to the district court for further proceedings consistent with this opinion.

Appeal from 12th Judicial District Court, Parish of Avoyelles; B.C. Bennett, Jr., Judge. Before GUIDRY, KNOLL and KING, JJ. WRIT GRANTED AND MADE PEREMPTORY: The trial court judgment, rendered and signed on March 25, 1988, dismissing relator’s appeal is vacated and set aside. Relator’s appeal is reinstated. An appeal can not be dismissed by the trial court for failure to timely pay estimated costs of appeal until after a copy of the motion to dismiss the appeal and of the order of court assigning a date and hour for its hearing is served upon the appellant and after a hearing is held. See La.C.C.P. Arts. 2594 and 2126(E).

BYRNES, Judge. By this appeal, plaintiffs-appellants, Em-elda Warner, Elaine Warner and Alvin Warner assert that the trial court erred in dismissing their rule to declare the will of Emelda Graden Mitchell null and void. We agree and reverse. FACTS On December 15, 1982, a statutory will was executed by the decedent with Ruth Bradford and Rosell Bradford as the two witnesses. Among the several special bequests contained in the will, $500.00 was left to Ruth Bradford as well as $500.00 to each of the appellants. On September 12, 1984, Ms. Mitchell died. The executor filed a petition to deliver the particular legacies on November 5, 1984, and judgment of possession was signed on that date. Later that month, the attorney for the executor delivered to Ruth Bradford a check for $500.00 and had her sign a receipt for the same. Shortly after the delivery of the check, a petition to annul the will was filed by the appellants which alleged inter alia that the will was invalid because Ruth Bradford, witness to the will, was also a named legatee. The executor then stopped payment on all checks issued pursuant to the judgment of possession. Ruth Bradford did not attempt to negotiate her check after learning that the validity of the will was contested. At the hearing of the rule to declare the will invalid, the executor and his attorney testified concerning the disbursement of the legacies pursuant to Ms. Mitchell’s will. The receipt signed by Ruth Bradford acknowledging delivery of the $500.00 legacy was placed into evidence. Also introduced into evidence were a copy of Mrs. Mitchell’s will, an affidavit of attesting witnesses signed by both Ruth and Rosell Bradford, and the judgment of possession. At the conclusion of the hearing, the trial court upheld the validity of the will by finding that Ruth Bradford impliedly renounced her legacy. Appellants now appeal this ruling. ASSIGNMENTS OF ERROR By their first assignment of error, appellants contend that Ms. Mitchell’s will is invalid because Ruth Bradford, being a witness to the will, could not also be named a legatee. We agree. The Louisiana Supreme Court addressed this very issue in Evans v. Evans, 410 So.2d 729 (La.1982). In Evans a witness to a statutory will was also named a residuary legatee. The Court applied C.C. Arts. 1592 and 1595 and invalidated the will, finding that failure to comply with the prohibition against naming testamentary witnesses as legatees rendered it null and void. The statutory and codal law applicable to the present case being identical to that in effect when the Court ruled on Evans, we are duty bound to follow its rationale despite our concerns over negating the testatrix’s intent. We therefore find that Ms. Mitchell’s will is null and void. Appellees argue, that the trial court was correct in upholding the will by finding that Ruth Bradford had impliedly renounced her interest in the succession. We find no merit in this argument. Although the Court in Evans, stated in dicta that “renunciation by a legatee who is also a witness might serve as an appropriate vehicle to cure a defect which existed at the time of its execution”, (emphasis added) Id. at 733, this potential solution is not available in the present case because, in our opinion, Ruth Bradford accepted the $500.00 legacy thereby precluding any subsequent renunciation. See C.C. Art. 1009. This conclusion is supported by several facts in the record as well as by the ultimate holding in Evans. Firstly, Ruth Bradford accepted delivery of the $500.00 check from the executor’s attorney and signed a receipt for the same. Although she did not attempt to negotiate the check prior to learning that the will had been contested, her decision to retain the check was clearly an expression of her accept-' anee. Secondly, Ms. Bradford executed an affidavit for probate of the testament and was recognized as a legatee in the judgment of possession. These last two facts alone were construed by the court in Evans to constitute an express acceptance of the legacy which precluded any subsequent renunciation. Id. at 733, 734. See C.C. Art. 988. Furthermore, Ms. Bradford continues to claim her legacy in brief before this court, asserting that she never intended to reject it, and, in fact, accepted it when offered, and still claims the legacy if she can obtain it. Having accepted the $500.00 legacy, Mrs. Bradford’s action cannot now be disputed unless it was “... the consequence of fraud practiced or violence exercised against [her]”. C.C. Art. 1009. In the absence of such allegations we find no merit to the argument that Ms. Bradford’s acceptance can now be revoked in order to cure the defect in the testament by a renunciation of the bequest. Having found Ms. Mitchell’s will invalid, we need not address appellants’ remaining assignments of error. Judgment of the trial court is reversed. Costs of this appeal are assessed to appel-lees. REVERSED. AMENDMENT PER CURIAM. We have noticed that our original opinion assessed costs of the appeal to “appellees.” Technically, Ruth L. Bradford is an appel-lee. We do not think, however, that she should be assessed costs. She was made a defendant and a third-party defendant by the adversaries in this matter. She answered to deny allegations suggesting impropriety on her part and to avoid being cast for costs, but she took a position essentially non-adversarial on the crucial issue of the validity of the will. Her legacy was $500.00, and she took the position that if the will was valid, she would accept the legacy; and if the will was invalid, then so be it. Although, as a legatee under the will she will be affected by our judgment, her participation in this matter has been only to clarify her position that she would not renounce her legacy. On the only truly adversarial issue, the validity of the will, she left that to the other parties to fight. Under these circumstances she should not be cast for costs. We amend our original judgment to exclude Ruth L. Bradford from among the appellees assessed costs of this appeal. REHEARING DENIED PER CURIAM. In considering the application for rehearing we noticed that our original opinion assessed costs of the appeal to “appel-lees.” Technically, Ruth L. Bradford is an appellee. We do not think, however, that she should be assessed costs. She was made a defendant and a third-party defendant by the adversaries in this matter. She answered to deny allegations suggesting impropriety on her part and to avoid being cast for costs, but she took a position essentially non-adversarial on the crucial issue of the validity of the will. Her legacy was $500.00, and she took the position that if the will was valid, she would accept the legacy; and if the will was invalid, then so be it. Although, as a legatee under the will she will be affected by our judgment, her participation in this matter has been only to clarify her position that she would not renounce her legacy. On the only truly adversarial issue, the validity of the will, she left that to the other parties to fight. Under these circumstances she should not be cast for costs. We amend our original judgment to exclude Ruth L. Bradford from among the appellees assessed costs of this appeal.

YELVERTON, Judge. For the reasons assigned in the consolidated suit, Broussard Brothers, Inc. v. Louisiana Insurance Guaranty Association, 524 So.2d 853 (La.App. 3rd Cir.1988), the judgment of the trial court is affirmed at Louisiana Insurance Guaranty Association’s cost. AFFIRMED.

DUFRESNE, Judge. This is an appeal by the Louisiana Workmen’s Compensation Second Injury Board from a judgment ordering that Board to reimburse the St. Charles Parish Council for portions of medical expenses and a lump sum settlement which the Council paid to Calward Joubert, a former employee who suffered a second back injury while in the course and scope of his employment. Because we find that the trial judge properly interpreted the applicable statutes in awarding the reimbursement, we affirm. The statute at issue here is La.R.S. 23:1378, Acts 1983,1st Ex. Sess. No. 1, § 1, effective July 1, 1983 (since amended by acts 1985, No. 697, § 1, effective October 1, 1985): § 1378. Determination of liability of fund A. An employer operating under this Chapter who knowingly employs or knowingly retains in his employment an employee who has permanent partial disability, as defined in Subsection (F) hereof, shall be reimbursed from the Second Injury Fund as follows: (1) Supplemental earnings benefits or permanent partial benefits. If an employee incurs a compensable disability which merges with a preexisting permanent partial disability, as defined in Subsection (F) hereof, supplemental earnings benefits or permanent partial benefits, pursuant to R.S. 23:1221(8) or (4), the employer shall pay all benefits provided in this Chapter, but such employer shall be reimbursed from the Second Injury Fund for sixty percent of all benefits which the employer has been required to provide pursuant to R.S. 23:1221(3) or (4). (2) Permanent total disability. If an employee incurs a compensable disability which merges with a preexisting permanent partial disability, as defined in subsection (F) of this Section, to cause permanent total disability, the employer shall pay all benefits provided by this Chapter, but such employer shall be reimbursed from the Second Injury Fund for all compensation in excess of the first one hundred four weeks of disability compensation. (3) Death benefits.... (4) An employer entitled to reimbursement fromthe Second Injury Fund shall be reimbursed from said fund for fifty percent of the first ten thousand dollars paid for necessary medical, surgical, and hospital services and medicine for the same injury; thereafter, the employer shall be reimbursed from said fund for all sums paid pursuant to R.S. 23:1203 for necessary medical surgical, and hospital services and medicine. The following facts were stipulated at trial. The St. Charles Parish Council operates under this chapter, and employed Calward Joubert knowing full well that he had a permanent partial disability as defined in the statute, i.e. a ruptured lumbar disc. On August 13, 1983, in the course and scope of his employment, he ruptured yet another lumbar disc which merged with the pre-existing condition. The Council paid Mr. Joubert temporary total disability benefits for 94% weeks or $20,836.41, as well as $13,475.28 in medical benefits. On September 8, 1985, the Council made a court approved compromise settlement with Mr. Joubert for $43,500. The Council thereupon timely and properly made application to the Second Injury Fund Board for reimbursement of the statutorily authorized portion of the above benefits. The Board denied all reimbursements, and the Council sought a trial de novo in district court. The trial court ruled that the Council was not entitled to recover any portion of the $20,836.41, paid as temporary permanent disability benefits. He also ruled, however, that there was no question that the $43,500, lump sum settlement was for supplemental earnings benefits, and therefore awarded the Council 60% of that amount, or $26,100.00. Similarly, he ruled that the Council was entitled to 50% of the first $10,000 in medical benefits, and all such benefits over $10,000, or a reimbursement of $8,475.28 on the total $13,475.28 paid out. The Board now appeals. Two basic issues are raised here. The Board first apparently contends that it was manifest error for the trial judge to characterize the lump sum settlement as supplemental earnings benefits, and instead should have found it to be total temporary disability benefits, which are not reimbursable. Its second contention is that regardless of the characterization of the settlement, La.R.S. 23:1378, simply does not permit reimbursement of any portion of lump sum settlements. We disagree with both contentions. As to the characterization of the settlement, the only evidence of record is the deposition testimony of Mr. Keith Ca-tha, a representative of the Council’s workman’s compensation management agency. Catha stated that upon reaching maximum medical improvement, Mr. Joubert was deriving some income from his quail farm. The $43,500, figure was reached by using the appropriate supplemental earnings benefit formula and taking into account the quail farm income. On this showing, there was no error in the trial judge’s factual finding that the settlement was in fact for supplemental earnings benefits. The second question is whether La. R.S. 23:1378, precludes reimbursement for lump sum settlements of benefits. This issue was recently addressed by our breth-ern in Town of Homer v. Workers’ Compensation Board, 510 So.2d 419 (La.App. 2nd Cir.1987). That court noted that prior to the 1983 amendment of Section 1378, the Board routinely reimbursed lump sum settlements. (This fact was also established in the present case.) In comparing the 1983 amended statute with the prior version, it found nothing to indicate that the Legislature intended to preclude such reimbursements under the new law. Our conclusion is the same. We therefore hold that the trial court properly awarded reimbursement to the Council from the Second Injury Board according to the percentages set forth in La.R.S. 23:1378. For the foregoing reasons, the judgment appealed from is affirmed. AFFIRMED.

In re Reliance Ins. Co.; applying for supervisory and/or remedial; to the Court of Appeal, Fifth Circuit, Nos. 88-CA-0180, 88-CA-0181; Parish of Jefferson, 24th Judicial District Court, Div. “D”, Nos. 301-517, 304-317. Denied. MARCUS, J., would grant the writ.

LOBRANO, Judge. In this wrongful death action, plaintiff, Shirley Calloway, was awarded $150,000.00 for the premature birth of her daughter who lived approximately 36 hours. Defendants are the Louisiana Department of Health and Human Resources (Charity Hospital at New Orleans), and Charles C. Foti (Foti) in his capacity as Criminal Sheriff for the Parish of Orleans. Both defendants were found liable in solido, and both appeal. The facts giving rise to this appeal are essentially as follows: Plaintiff, Shirley Mae Calloway was arrested for shoplifting on January 3, 1983. At that time, she was approximately six months pregnant. She was booked into central lockup at the Orleans Parish Prison at about 10:30 p.m. She told the booking deputy that she was pregnant and was having abdominal cramps. Deputy Moore, the booking deputy, remembers her being six months pregnant. Calloway was then placed in a holding cell with other female prisoners. She continued to complain about pain and bleeding or possible spotting. A 3:13 a.m. entry in the Communications Log Book by Deputy Moore states that Calloway appeared to be hemorragh-ing, and a corpsman was notified. At 3:14 a.m. a female corpsman came to examine Calloway. The examination consisted of Calloway lowering her underwear and the corpsman shining a flashlight on her underwear to see any sign of blood. This was done in the holding cell with the other female prisoners present. The corpsman’s log entry indicates there was no evidence of bleeding, and that Calloway would be seen by a nurse in the morning. Subsequently, Calloway was removed from the holding cell for fingerprinting. She testified she told the deputy who fingerprinted her that she was having labor pains. At 10:10 a.m. Calloway was brought to see a nurse. She was complaining of severe abdominal cramps and pain. The nurse found no evidence of bleeding. No vaginal exam was performed at any time. Calloway was then transferred to Charity for further evaluation and treatment. She was handcuffed with her hands in front of her body. The deputy took her to the emergency room on the first floor of Charity. They then went to the obstetrics admitting office located on the tenth floor. During the admission procedure the head nurse in the labor and delivery unit saw no signs of labor or bleeding. Calloway stated that she was in pain, but was not bleeding. As part of the regular admission procedure, the nurse asked for a urine specimen. Calloway complained to the nurse that she was in too much pain to give a specimen. The deputy accompanied Callo-way into the bathroom. The deputy stated that she removed the handcuffs. Calloway and a nurse stated that she remained handcuffed. When she sat down on the toilet she felt a lot of pain and screamed that her baby was coming. Two nurses rushed into the bathroom and brought Calloway out. When they attempted to lift her onto a gurney the infant was delivered spontaneously and fell onto the floor, striking its head. Calloway and the infant were rushed to the delivery room. The deputy removed the handcuffs so that the doctors could care for Calloway. The infant was immediately taken to the Neo Natal Intensive Care Unit for treatment. It weighed only two pounds, four ounces and was delivered during the 28th week of gestation. Calloway was taken to a hospital ward. Initially Calloway did not want to see the infant. She changed her mind and saw the infant only once for a brief period of time. The infant died within 36 hours due to complications arising from its prematurity. Calloway remained in the hospital for a few days for observation then was returned to Orleans Parish Prison. Prior to the events in January 1983, Cal-loway made two visits to Charity. The first one was on November 28, 1982. She was having heavy bleeding and a vaginal discharge. She was given some medication and told to report to the L.S.U. Prenatal clinic for additional care. She did not go. She returned to Charity on December 24, 1982, again complaining of heavy bleeding. She was told to get bed rest and to report to the L.S.U. Prenatal clinic as soon as possible. She did not go. Blood tests performed at that time showed her to be anemic and having contracted syphilis. Other than these two visits to Charity, there was no evidence of additional prenatal care in the record. The trial judge held Charity responsible for the negligent acts of its corpsman in treating plaintiff, and the Criminal Sheriff responsible for the negligent acts of his employees. Foti asserts the following: a) The claim against him has prescribed. b) The judgment was based on speculation and conjecture, and there was no showing of negligence on his part. c) The award is excessive. Charity appeals asserting the following errors: a) The trial court incorrectly applied a hospital standard of care to the prison corpsman. b) There was no evidence submitted to establish a standard of care for a prison corpsman. c) There was a lack of causation between the actions of the corpsman and the premature birth. d) The damage award is excessive. We discuss each defendant’s argument separately. CRIMINAL SHERIFF a) Prescription Foti’s prescription argument is predicated on the following chronology. Plaintiff’s original suit was filed January 5, 1984. In that petition, she alleges that during her ordeal at Charity she was at all times handcuffed in a “behind the body position.” Each allegation in that original petition refers to the position of the handcuffs, and the conclusion that plaintiff was helpless to prevent the child from falling on the floor. On January 27, 1987, plaintiff amended the petition to allege the Sheriff failed to provide adequate medical care at the prison. She further alleged that the faulty medical care resulted in the premature birth and subsequent death of her child. Foti argues that the 1987 amendment states a completely new cause of action against him, and thus has prescribed since the incarceration was January 1983. In support thereof, he cites Neilson v. Jeffer son Parish Sheriff's Office, 242 So.2d 91 (La.App. 4th Cir.1970), and Gates v. Hanover Insurance Company, 218 So.2d 648 (La.App. 4th Cir.1969). We disagree. First, both Neilson and Gates, supra, deal with amending a petition pursuant to Code of Civil Procedure Article 934, and an interpretation of that article. Neither case decided the issue of prescription. A prescription plea directed at a supplemental or amended petition is resolved by the interpretations of Code of Civil Procedure Article 1153. That Article provides: “When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading.” The interpretative jurisprudence of the above article emphasizes two factors. First, whether the original suit provides sufficient notice to the defendant and, second, the operative facts surrounding plaintiffs claim. In Gunter v. Planche, 439 So.2d 437 (La.1983), our Supreme Court set forth these guidelines: “It is well established that Art. 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim arises.” Id. at MO. The Court went on to state: “Louisiana’s Code of Civil Procedure abolished the ‘theory of the case’ restriction on pleadings, (citation omitted) Article 1153 requires only that the amending petition’s thrust factually relate to the conduct, transaction, or occurrence originally alleged.” Ibid at MO. When the original petition in this case was served on Foti he knew that a claim was being made for his alleged negligence in the care and handling of plaintiff subsequent to her arrest. Although the facts which allegedly form the basis of that negligence are different in the amending petition, we hold they satisfy the requirements of Article 1153 and thus relate back to the filing of the original petition. Prescription did not toll. See, Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La.1985). b) The Criminal Sheriffs Negligence Foti argues that the trial court based its judgment on speculation and conjecture, and that there was no evidence of his negligence. In support of the first argument, Foti quotes a portion of the trial court’s judgment wherein he states: “No one can definitely say whether or not if proper treatment were given herein, whether or not the plaintiff would have had the miscarriage. This is medical conjecture of whether or not any type of drug could have been administered to the plaintiff and would it have successfully stopped the labor from going forward and would have stopped the plaintiff from having a premature birth of a child? No one knows that and we cannot definitely say that.” In essence, Foti’s argument is lack of causation. He asserts that because there is no proof that plaintiff’s premature birth could have definitely been prevented, the essential “but for” element of a negligence case is missing. We disagree. The record shows that tocolytic agents are administered to patients threatening premature birth. Dr. Victor Brown, an expert qualified gynecologist, testified that he has been successful more than half the time in preventing premature births with the use of tocolytic agents, particularly Pi-trodene. He also stated that, “[a] better way to look at the problem would be to see how much longer you can keep the baby inside of the mother giving it as much chance to grow.” He opined that, given plaintiff’s condition and complaints, a pelvic examination should have been done. Plaintiff’s proof is by a preponderance of the evidence. She does not have to prove an absolute certainty. The reasons of the trial judge, when read in their entirely, indicate he felt that there was no absolute medical certainty premature birth could be prevented. However, it is reasonable to conclude that, based on the evidence presented, the “but for” of this case is Foti’s failure to timely transport plaintiff to Charity where the tocolytic agent could be administered. Thus, there is more than speculation and conjecture forming the basis of the trial court’s conclusion. Foti argues, however, he fulfilled his obligations under the law by contracting with Charity to provide medical services to the prisoners in his custody. In support thereof Foti submits that Louisiana law provides that the standard of care imposed upon a confining authority in providing medical needs of inmates is that the services be reasonable, citing Elsey v. Sheriff of Parish of East Baton Rouge, 435 So.2d 1104 (La.App. 1st Cir.1983), writ denied 440 So.2d 762 (La.1983). We agree with the argument that the Sheriff must provide reasonable medical services to his inmates. However, the record is clear that Foti’s negligence is not predicated on incompetent medical services, but on his failure to follow his own established procedures. Those procedures, contained in the Sheriff’s policy manual, and referred to as Post Orders, provide, in part, that a pregnant female who has obvious vaginal bleeding or who states she is experiencing bleeding, or who complains of abdominal pain should not be accepted at the Central Lock-up. We conclude that this standard, even if it were not contained in the Post Order, is what the “reasonable man” custodian of incarcerated persons should do under those given circumstances. It is certainly foreseeable that a pregnant female suffering the symptoms outlined above would be exposed to a risk of serious harm to herself and her child if incarcerated without medical attention. Deputy Moore, the booking officer, testified she knew plaintiff was six months pregnant at the time of her arrest. Plaintiff testified she complained of abdominal cramps at that time and later when she was fingerprinted. Deputy Moore’s entry in the log book at 3:13 a.m. indicated plaintiff “appeared to be hemorrhaging.” Although a corpsman examined plaintiff at 3:15 a.m., and despite plaintiff’s complaints, she was not seen by a nurse until 10:30 a.m. whereupon she was transported to Charity. Foti argues that because the corpsman did not see any vaginal bleeding at 3:15 a.m., there was no indication of premature delivery to necessitate further action. The fact is well established, however, that not until 12 hours after incarceration did plaintiff see a nurse who immediately had her transported to the hospital. It is also established that the Sheriff’s employees knew plaintiff was pregnant and complained of abdominal pains. She was first seen by a corpsman 5 hours after her incarceration who did nothing more than examine her underpants with a flashlight for evidence of spotting. She was transported to the hospital seven hours later. We conclude that this evidence preponderates in plaintiff’s favor. Knowing the condition of plaintiff, the Sheriff's Office was negligent in failing to transport her to Charity sooner. CHARITY HOSPITAL a) Standard of Care Charity argues that the trial judge incorrectly applied a hospital’s standard of care to the prison corpsman. In support thereof they also cite Elsey v. Sheriff of Parish of East Baton Rouge, supra, for the proposition that prison hospital care must be adequate or reasonable. They further urge that no evidence was introduced to establish a standard of care for a prison corpsman, therefore plaintiff failed to show any breach of duty. Plaintiff's action is one of negligence. She asserts that Charity’s medical personnel at Central Lockup were negligent in their treatment of her. The trial court’s reasons make it clear that the basis of his decision against Charity is the negligence of its medical personnel assigned to the prison. As in all negligence cases, the responsible party must have breached a duty which encompasses a foreseeable risk of harm to the plaintiff. In Elsey, supra, cited by both Foti and Charity, our brethren of the First Circuit explained: “This duty to provide reasonable medical care for prisoners does not require the maintenance of a full hospital at the site of each prison in order to protect against every medical risk, but does encompass the risk that an inmate will become sick or be injured and require life-saving attention.” Id. at 1106. While we agree with Charity that a corpsman should not be held to the same standard of care as a medical doctor, we do believe his standard is above that of any ordinary layman. Medical care requires some degree of professional skill. La.R.S. 40:1299.39 provides that the standard of care of every health care provider shall be to exercise the same degree of skill required by others licensed in his profession in the community. The evidence shows the following facts. The Supervisor of the medical personnel who worked at Parish Prison testified that the education of a corpsman is similar to that of an ambulance attendant. He also testified that they (the medical personnel) were required to follow the prison guidelines noted earlier in this opinion. The evidence further suggests that the extent of the examination performed by the corpsman at 3:15 a.m. was to flash a light on plaintiffs underpants so that she could check for spotting. The log book entry indicates there was no evidence of bleeding or spotting, but that plaintiff was to be seen by a nurse. Seven hours later the nurse immediately transfers plaintiff to Charity. Charity argues that, absent evidence of spotting, the corpsman was not required to do anything further. In support, they cite the medical testimony which indicates that spotting is a symptom of premature labor. However, the medical testimony is equally convincing that pregnant women with complaints of abdominal pains, but no spotting, may also require hospitalization. Dr. Brown also opined that a sure test to determine the onset of labor is a pelvic examination, which was never performed on plaintiff. We are satisfied that there was no manifest error in the trial judge’s ultimate conclusion that the prison medical personnel were negligent. As stated earlier, their standard of care is above that of the layman. Given the fact of plaintiffs obvious pregnancy, her persistent abdominal pains, the very minimal examination by the corpsman at 3:15, and the fact that plaintiff was not seen by a registered nurse until 12 hours after incarceration, we conclude plaintiffs treatment by Charity personnel at the prison was below the standard of care required. Charity further argues the issue of causation. Their argument is similar to that of the Criminal Sheriff. Had the prison medical personnel timely transported plaintiff to Charity, it is reasonable to conclude that proper medication would have prevented a premature delivery. PLAINTIFF’S OWN NEGLIGENCE Both defendants argue that plaintiff’s failure to obtain prenatal care, and her contraction of syphilis during pregnancy were causative factors in the premature birth. We disagree. The evidence does not suggest these factors caused the premature birth. The thrust of plaintiff’s claim is that the premature delivery could have been prevented had it not been for the negligence of the Sheriff and Charity. As previously noted, the evidence does support this conclusion. The evidence does not suggest plaintiff’s lack of prenatal care caused the premature delivery. DAMAGE AWARD Both defendants argue that the $150,-000.00 award is excessive. While we agree that the law requires each case to be decided on its own peculiar facts and circumstances, our initial inquiry is whether the trial judge abused the much discretion afforded him under Civil Code Article 1999. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). After a review of the particular facts and circumstances of this case, we agree that the award is an abuse of discretion. The award was for plaintiffs grief at the loss of her child who lived approximately 36 hours. She reluctantly saw the child only once during that time. Although plaintiff argues she was handcuffed at the time of delivery, and leg-cuffed to the bed after delivery thus adding to her grief and personal loss, the evidence also shows that prior to her arrest plaintiff refused to seek medical attention and pre-natal care, and that she was treated for syphilis during the fifth month of her pregnancy. We determine that an award of this type is predicated on the bond between parent an child. Taylor v. Charity Hospital of Louisiana, 466 So.2d 736 (La.App. 4th Cir.1985), vacated on other grounds, 476 So.2d 338 (La.1985), writs denied, 476 So.2d 341 (La.1985). Presumably the longer a child lives, the greater the parental bond, and the greater the loss upon the child’s death. Satisfied that the award is excessive, our function is to lower it to the highest reasonable amount. Reck v. Stevens, 373 So.2d 498 (La.1979). While conscious of the Supreme Court’s admonition in Reck, supra, we have reviewed prior awards in similar cases. In Searcy v. Porter, 381 So.2d 540 (La.App. 2nd Cir.1980), the parents brought an action for the wrongful death of their 3 month old infant. The child was severely injured in an automobile accident and died 8 hours later. The court found that the facts and circumstances showed a great deal of love and affection existed between the parents and child. The court awarded the mother $50,000.00, and the father $40,-000.00 in general damages for the wrongful death of their child. This court, in Moran v. Dean, 416 So.2d 351 (La.App. 4th Cir.1982), stated that in determining damage awards for the negligent death of an infant, consideration should be given to the age of the child, the mental anguish of the parent, and the loss of future love and companionship. In that case the infant lived only two hours. The mother was awarded $40,000.00 for the mental anguish and loss of future love of the child. That award appeared to be “reasonable and appropriate.” Moran, supra at 356. In Taylor v. Charity Hospital of Louisiana in New Orleans, 466 So.2d 736 (La.App. 4th Cir.1985), this court awarded $25,-000.00 to the mother of a six year old girl who died in the hospital. In that case, we stated that “there is no strict standard for making this determination (of damages) and the award will hinge upon the relationship between the child and the parent(s) before death.” Taylor, supra at 740. In the case presently before us, there was little evidence presented to show the relationship between the mother and child, or her concern for the infant’s well being. The infant lived less than two days. Calloway saw the infant once during that time, and only for a brief period. Before her arrest she showed little concern for prenatal care. She did not follow the doctor’s orders for further checkups and bed rest. Medical experts at trial expressed their concern for the physical condition of the plaintiff due to her various ailments. The only evidence establishing any mental pain or anguish was the plaintiff’s own testimony. Considering the above facts, and based on a thorough examination of the record, we hold that the trial court’s damage award of $150,000.00 is excessive and an abuse of its discretion. The award will be reduced to $30,000.00. DECREE For the reasons assigned, the judgment of the trial court is affirmed as to the liability of the Criminal Sheriff of Orleans Parish, and the Louisiana Department of Health and Natural Resources. However, the award of damages is reduced to $30,-000.00, plus legal interest from date of judicial demand. AMENDED, AND AS AMENDED AFFIRMED.

YELVERTON, Judge. This appeal involves two consolidated actions. Robert and Carole Kopicki signed a purchase agreement with John and Paula Bordelon to buy the Bordelons’ three bedroom residence located in Lafayette. When the Kopickis did not perform the purchase agreement, the Bordelons sued, and were awarded a judgment against the Kopickis for $18,816.30. From the judgment in that suit (the captioned case), the Kopickis appealed. We affirm. The second case, Oil City Realty v. Bordelon, 524 So.2d 860 (La.App. 3rd Cir.1988), in which we today render a separate judgment, was a concursus to determine the ownership of a $1,000 deposit made by the Kopickis when the purchase agreement was signed. The trial court declared the Bordelons the owner of the deposit. The case arose when the Bordelons placed their home on the market for sale. The Kopickis, searching for a four bedroom home or a three bedroom home that could be converted into a four bedroom home, became interested in the Bordelon house. Before signing the purchase agreement, the Kopickis discussed and made arrangements with a contractor about having an addition put on the Bordelons’ house, which only had three bedrooms. On May 26, 1983, the Kopickis and the Bordelons entered into a contract to buy and sell the property for the sum of $134,-500. The sale was to be closed on or before June 26, 1983. A few days before the closing date the Kopickis discovered that the property in question, which is a corner lot, was burdened by a right-of-way in favor of the City of Lafayette. From the edge of the existing pavement, this servitude extended about 30 feet into the lot. Based upon this information the Ko-pickis assumed that the contemplated addition would not fit and that the property was not suitable for their purposes. They refused to consummate the sale. The issue raised by this appeal is whether the Kopickis had the right to invalidate the contract to sell because of error. After studying the record and reviewing the jurisprudence on the subject, we are of the opinion that the trial judge reached the correct result: the contract was valid. In order to invalidate a contract due to error, the error must relate to the principal cause for making the contract and the other party must either know or be presumed to know of this principal cause. La. C.C. Art. 1949; Thomas v. Pace, 496 So.2d 609 (La.App. 1st Cir.1986). La.C.C. Art. 1950 says that error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing. We will assume that the Kopickis proceeded in this matter under an error of fact. They testified that they thought the lot was free of any servitudes when in actuality it was burdened by a 30 foot right-of-way. If that was the case, then the thing which the Kopickis contracted for, the house and lot, was different from what they understood it to be at the time of contracting. They testified that the principal cause for their agreement to purchase this home was because of the lot size. They wanted a three bedroom house on a lot with enough acreage to convert it into a four bedroom house, rather than a house on a lot of any size. Regardless of the significance of this criterion to the Kopickis, however, it was never communicated to the Bordelons nor to their real estate agent. John Bordelon testified that neither he nor his wife spoke with the Kopickis during the entire negotiating process. The record reflects that both the Bordelons and their realtor knew that the appellants were planning some renovations. However, they did not know what the renovations were nor did they know that that was a principal cause for making the contract. From the nature of this transaction it cannot be presumed that the plaintiffs knew what the Kopickis’ principal cause was. The apparent reason for agreeing to buy a house and lot is to acquire a suitable place to live. The evidence establishes that the property in dispute fit that description. We do not believe that the Bordelons should be held to have known that the Kopickis wanted to convert the residence into a four bedroom home, and that their planned addition would spill over into the right of way. The trial court found that it was not until 15 months after the Kopickis reneged that the Bordelons found a sale, and then, due to a depressed market, the price they had to accept was much less than the purchase agreement. The trial court awarded the Bordelons $18,816.30, which was $17,500 as the difference between the purchase agreement and the actual sale price, and $2,316.30 as the difference between the Bordelons’ house payments and what they took in as rent (a total of $19,816.30), less a credit for the $1,000 deposit. For the above reasons the judgment of the trial court is affirmed, appellant to pay the costs. AFFIRMED.

In re Fullilove, Willie; applying for writ of certiorari and/or review, supervisory and/or remedial; to the Court of Appeal, Fifth Circuit, No. 88-KA-0273; Parish of Jefferson, 24th Judicial District Court, Div. “G”, Nos. 87-2948, 87-2806. Denied.

In re White, Teuna; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. A, No. 76,024; to the Court of Appeal, Second Circuit, No. 48,-270-KH. Denied. HUGHES, J„ would grant.

In re State of Louisiana; — Other; Applying For Writ of Certiorari and/or Review Orleans Parish Juvenile Court, No. 2012-115-01-DQ-F; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1442. Denied. VICTORY, J., would grant.

WILLIAMS, J. |,The defendant, Eddie L. Jackson, was charged by bill of information with second degree kidnapping, in violation of LSA-R.S. 14:44.1, and simple arson (damage $500 or more), in violation of LSA-R.S. 14:52. Following a jury trial, he was found guilty as charged. He was sentenced to serve 40 years at hard labor without the benefit of parole, probation or suspension of sentence for the second degree kidnapping conviction and 10 years at hard labor for the simple arson conviction. The sentences were ordered to be served concurrent with any other sentence. The defendant appeals his convictions. He also appeals one of his sentences as con stitutionally excessive. For the following reasons, we affirm. FACTS On January 24, 2011, at approximately 2:00 a.m., deputies of the Caddo Parish Sheriffs Office were dispatched to the scene of an unoccupied burning vehicle near Cooper Road in Shreveport, Louisiana. It was later discovered that the vehicle, a 2006 silver Dodge Charger, was owned by Tracy Winslow, with whom the defendant had a prior 15-year romantic relationship. Tracy was not found at the scene of the burning vehicle and her family has not seen or heard from her since the night of January 23, 2011. The defendant and Tracy had three children together, Shicarra Winslow (16 years old), Damione Winslow (13 years old), and Ty’keonna | ¿‘Toucan” Winslow (6 years old). The couple and their children had lived together in Oil City, Louisiana, in a home jointly purchased by Tracy and the defendant. The relationship between the defendant and Tracy ended on or about November 24, 2010, Thanksgiving Day, when he repeatedly struck her on her head with a gun. The incident was witnessed by the couple’s three children. Shicarra and Damione testified that after hitting Tracy, the defendant fired the gun “in the air” and threatened to kill Tracy and the children. Shortly after the incident, Tracy ended the relationship, took her car, a 2006 silver Dodge Charger, and moved in with her mother, Maggie Winslow. Tracy applied for a three-bedroom apartment in her mother’s apartment complex. She also began a romantic relationship with Larry Wiggins (“Larry”), a resident of Shreveport. On the morning of Tracy’s disappearance, Detectives Scoggins and Hicks questioned the defendant. The defendant’s interview consisted of four components. During the first portion, the defendant made the following ^relevant statements: • his cell phone was with him all day/evening on January 23, 2011; • he and Tracy ended their relationship around Thanksgiving 2010; • he last talked to Tracy that day on the phone at 5:00 p.m. or 6:00 p.m. on January 23, 2011; • Tracy told him that she was heading towards Shreveport; • he and his youngest daughter, Ty’keonna, visited family and friends that day; • he dropped Ty’keonna off at his mother’s house at 3:00 p.m.; • he drove around for “a couple of hours” and returned home at 4:00 p.m. or 5:00 p.m.; • Tracy sent him a text message at 8:00 p.m. or 8:30 p.m., asking about the location of Ty’keonna; • he picked up two of his other children, Eddie and Edwina, at 10:00 p.m. or 11:00 p.m. from their mother’s home and took them home; • he tried to call his brother; and • he cleaned Ty’keonna’s toys out of his rental car. During the second interview, the defendant stated: • his nephew picked up Ty’keonna and took her to the apartment of Maggie Winslow (Tracy’s mother); • he did not go anywhere else that night; • a cashier from the EZ Mart convenience store called him and told him that Tracy’s car was burning on Cooper Road; • he drove in his truck to Cooper Road and did not see anyone, so he returned home; • when he got back home police officers were already there; • he had deleted all of the text messages and entries from his cell |4phone call log; • he and Tracy were “trying to work it out” and were going to counseling once a week “for spiritual guidance”; • he did not remember the time of the call from the cashier from the EZ Mart; • he did not know anybody on Cooper Road and did not like going there because “they had problems many years ago”; During the third portion of the interview, the defendant stated: • he did not talk to Tracy around midnight that night; • he did not drive Tracy’s car to Cooper Road; • he had called Tracy and left messages only; • that he did not call anyone to pick him up on Cooper Road; • “loved his baby mama and would not harm her”; • he never “lost his cool”; • he has “lost his cool”; • he went to the Cooper Road area at approximately 2:00 a.m., after the deputy told him that Tracy’s car was found burning; • someone picked him up on Cooper Road because his truck had broken down, which happened after the deputy came to his house and told him about the fire; • he “loves his baby momma,” and “would never hurt her for the world”; • he did not set a car on fire; • his truck stopped at the apartments on Cooper Road; • his children were at home alone when he drove to the Cooper Road location; • Tracy owned a 9 millimeter gun and had it for two to three years; Is* he would not harm Tracy because that would leave him to take care of three more children; he would be left with five children without a woman, and that “he could not do that”; • the last time that he was in Tracy’s car was when they went to eat after church; • he stayed at home all the time reading the Bible; • he had been “seeking spiritual guidance since Tracy left,” and they both went to counseling; and • he did not know that Tracy had a boyfriend. During the fourth portion of the interview, the defendant consented to a fingernail clipping and a DNA swab. Subsequently, the defendant’s cell phone records were subpoenaed. Data retrieved from cell-phone tower locations indicated that he had been following Tracy around Shreveport on the day of her disappearance; he had made phone calls near the home of Tracy’s boyfriend and near the home where Tracy and her boyfriend had attended a party that evening. Additionally, the records showed that the defendant was in the Cooper Road area, near the location of the burning car, at 1:59 a.m. The defendant was charged by bill of information with second degree kidnapping and simple arson. A six-day jury trial was held, which revealed details of the sometimes volatile relationship between the defendant and Tracy, as well as some disturbing particulars which took place after their breakup. Cherrie Alphard and her daughter, Tamika, and other friends and co-workers of Tracy, testified about an incident which took place in a park in December 2010, approximately one month before Tracy’s disappearance. |fiTamika testified as follows: she, her mother and Tracy were at the park sitting in Tracy’s car; the defendant repeatedly called Tracy, who refused to answer his calls; Tracy showed her text messages from the defendant in which he stated “that he would kill her”; when finally Tracy answered one of the defendant’s calls that day, she told him that she was at the park getting ice; the defendant drove to their location, parked his truck two to three inches away from Tracy’s car, jumped out, and grabbed/jerked Tracy’s window; the defendant shouted, “Don’t play with me bitch, I’ll break your neck in 18 different places.” Cherrie Alphard also testified with regard to the park incident. She stated: the defendant came to the park, pulled next to Tracy’s car and began shaking her window; the defendant stated, “The next time I call, you better answer the phone. If you don’t, I’ll break your neck in 19 different places”; the defendant threw mail addressed to Tracy through the crack in her window and left the park. Teressa Winslow, a cousin of both Tracy and the defendant, also testified. She stated: Tracy had confided to her details of her problems with the defendant; Tracy had allowed her to hear a threatening voi-cemail message the defendant had left on Tracy’s phone; she recognized the defendant’s voice on the message and he was “upset because [Tracy] was not answering the phone.” In describing the message, Teressa stated, “Just him stating that, you know, he would hurt her, and you know, what he would do to her.” She testified that she could tell that the message bothered Tracy “because she wouldn’t have let me listen to it if it didn’t.” Further, Teressa testified: she had seen the defendant and Tracy sitting separately at church |7the day Tracy disappeared; the defendant “seemed like something was bothering him”; the defendant “was in a daze, like he was there but he wasn’t there”; after church, the defendant took Ty’keonna with him; she saw Tracy at the grocery store after church and expressed her concern about the defendant’s demean- or in church; Tracy told her that the defendant was “upset because she didn’t ride to church with him”; Tracy told her she was not worried because she had a gun; Tracy showed her a gun in the glove compartment of her car; Tracy and Larry were in a relationship and Tracy was “absolutely” happy; Tracy had never expressed any fear or misgivings about her relationship with Larry; she has not seen or heard from Tracy since Sunday, January 23, 2011. The evidence also revealed that on January 23, 2011, at approximately 3:00 p.m., Tracy drove to Larry’s house. Later, she and Larry went to the home of Sabrina Harris, Larry’s cousin, to watch a football game. Frederick Taylor testified that he and Larry were long-time friends and he knew Tracy through Larry. Taylor testified as follows: he went to Larry’s house at approximately 2:00 p.m., on January 23, 2011; Tracy arrived at Larry’s house with groceries at approximately 3:00 p.m.; at approximately 5:00 p.m., they left to go to Harris’ house to watch football; he did not notice if Tracy received any phone calls or text messages. Chantelle Stephens, Taylor’s girlfriend, testified as follows: she met Tracy through Larry in “late November 2010;” she was a guest at Harris’ house on January 23, 2011; the men were in the front of the house watching a football game and the women were in the kitchen; she was sitting next to Tracy; Tracy’s phone rang “frequently”; Tracy answered the phone [«‘sometimes, and sometimes she didn’t”; Tracy appeared to be frustrated when she received the calls; she, Tracy and two other women left the house briefly to go to a fast food restaurant; Tracy continued to receive phone calls, most of which she did not answer; when they returned to Harris’ house, she heard Tracy talking on the phone to someone “with a male voice;” the person asked Tracy “where their youngest daughter was”; Tracy told the person her daughter was with her aunt, hung up and “silenced the phone again”; she has not seen or heard from Tracy since that night. Sabrina Harris testified as follows: she and Larry are cousins; she met Tracy through Larry in October 2010; she had a “football house party” on January 23, 2011; Tracy and Larry attended the party; she noticed that Tracy’s phone kept ringing and “whoever it was that was on the other end, she kept screaming at them telling them something”; she could tell that Tracy was irritated; she did not know who was on the other end of the phone but she “could hear it was a dude, a guy”; she could not understand what Tracy was saying; Tracy received numerous calls and kept “hitting her ignore button on the phone”; Tracy and Larry left her house at approximately 11:00 p.m. On cross-examination, Harris testified that the person on the other end of the phone was screaming at Tracy, and Tracy was screaming back at them. Larry testified that he heard Tracy’s phone ringing that evening and that he heard Tracy tell the defendant that “he was supposed to have Toucan.” He also stated that he heard the defendant tell Tracy that Toucan was not with him. Larry also testified that Tracy told him that the defendant was texting her that day. Further, Larry testified that Tracy asked him to go |sto Oil City with her, but he would not go because he knew the defendant was “going to be down there, and so it’s going to end up [with] me and him in an argument.” At approximately 11:00 p.m., Tracy and Larry left Harris’ house, stopped by Larry’s house then went to a gas station. Afterwards, Tracy drove back to Oil City alone. Tracy called her mother’s house and spoke to Shicarra and Damione and told them that she was on her way home. Larry testified that he was on the phone with Tracy during her drive home. He stated that Tracy arrived at home, and he heard her turn off and exit her car. Larry testified that he heard the defendant’s voice shouting and cursing at Tracy. Larry stated that he heard Tracy shouting back at the defendant, followed by a scuffling/crackling sound on the phone. He stated that Tracy told him twice that she would call him back. Larry never heard from her again. He testified that Tracy had never given any indication that she was planning to leave town. Damione testified that he heard a noise resembling a “car burning out” emanating from the parking lot of their apartment complex. He stated that he called his mother’s phone, but did not receive an answer. Mariah Jackson, Maggie Winslow’s next-door-neighbor, testified as follows: she saw Tracy’s car driving out of the apartment complex parking lot the night of January 28, 2011; the headlights were turned off and the vehicle was “leaving kind of faster than what she would drive it;” she was unable to see who was in the car; she did not know what time the car left the | i(lapartment complex. Karen Milbrodt, record custodian with Verizon Wireless, testified that the following text messages were exchanged between the defendant (EJ) and Tracy (TW) that evening: 6:52 p.m. E J to TW Hey you got to get Tucán, no one down there to take her over Mag’s. TW to EJ Ok. 6:59 p.m. EJ to TW Call me. 7:02 p.m. E J to TW You know, she got to go to school tomorrow. 7:10 p.m. TW to EJ I know she got to go to school. I’m fina come get her, but what you, you can’t get her? 7:11 p.m. EJ to TW I’m way you here in TX. 7:13 p.m. EJtoTW You with your n* * * *r, our baby comes first. 7:13 p.m. TW to EJ Whatever. I’m in Sport, but I’m fina to go get her. Don’t f*ekin worry about it. 7:15 p.m. EJ to TW Call me right now. 7:16 p.m. TW to EJ No, I’m fina to go get my baby. F* *k you. I could have brought her with me. 7:17 p.m. EJ to TW I don’t care if you’re with that p* ⅜ *y ass n* * * *r, our baby come first god dammit. 7:26 p.m. EJ to TW Get that n* * ⅜ *r d* *k out your mouth and go get my baby. Don’t call nobody to get her. You get her now. TW to EJ F* *kyou.” _]n7:29 p.m. EJ to TW That n* * * *r f* *Mng you? I hope you suck d* *k and die. 7:57 p.m. EJ to TW Go get my damn baby. 8:00 p.m. TW to E J No longer your baby. My baby and f* *k you. 8:05 p.m. EJ to TW F* *k you too, and you got to be with your n* * * *r to be talking shit. 8:08 p.m. TW to EJ That’s what you think. That’s why you acting like that, why I don’t like to deal with 8:12 p.m. EJ to TW Yeah, because you eussin me out. Don’t answer you phone. You ain’t never did that. Prove to me you’re not with a man, answer the phone. We was fine today. 8:27 p.m. E J to TW That’s how I know you with someone. 8:28 p.m. TW to E J Okay. Stop thinking] I’m with someone and do what you do. 8:30 p.m. TW to E J I’m gonna stop answer the phone, and you really going to think I’m with someone. 8:30 p.m. EJ to TW K. You with your p* * *y ass n* ⅜ * *r. If you’re not, meet me then. 8:31 p.m. E J to TW That n* * * *r going to make you. 8:31 p.m. TW to E J If you say so. 8:33 p.m. EJ to TW Go ahead, I know how to GPS your ass now. 8:34 p.m. TW to E J K. Do it then. You want to meet me but you couldn’t go to get Tucán. I’ll see you when you get here. 1128:37 p.m. TW to EJ Don’t call me, GPS me. 8:37 p.m. EJ to TW I just left TX. That dude that was going to race did show up so everybody left, now meet me. 8:38 p.m. TW to E J GPS me. 8:30 p.m. E J to TW Meet me if you’re not with your man. 8:40 p.m. E J to TW And you got it off. 8:44 p.m. EJ to TW You don’t meet me, you will be sorry so please me. 8:45 p.m. TW to EJ You gonna be sorry. 8:45 p.m. EJ to TW K. I asked nicely. 8:46 p.m. EJ to TW And I love you. 8:47 p.m. TW to E J Do you know what you saying? 8:48 p.m. EJ to TW Nothing. I just kiddin. Just meet me. 8:48 p.m. TW to EJ No, so leave it alone. 8:49 p.m. EJ to TW Call me then. 8:53 p.m. EJ to TW Can’t leave that ni* * * *r. 9:06 p.m. EJ to TW Man, I just f* *king with you. I’m still in TX, we going to race. 9:13 p.m. EJ to TW So you not going to be at home when my baby have to bath and go to bed? Tell me now. 11:42 p.m. EJ to TW Still with that n* * * *r I see. During the trial, the state presented evidence to piece together the following time-line: • On January 23, 2011, at 11:00 p.m., the defendant, wearing a 113dark shirt and dark-colored jeans, drove a Kia rental car to the only EZ-Mart in Oil City and purchased gas. • At 12:22 a.m. (January 24, 2011), the defendant, wearing different clothes— a red shirt and light-colored jeans— drove back to the EZ-Mart in his gray work truck and purchased gas. • At 1:38 a.m., the defendant called a relative, Donyell Malong, and asked him for a ride because “his truck had broken down.” Malong testified that the defendant did not tell him where he was located. • At 1:35 a.m., the defendant called Ma-long again and told him that he no longer needed a ride because his truck was “running.” • At 1:45 a.m., Deputy Devin Pickett of the Caddo Parish Sheriffs Office drove through the Lakeview neighborhood area in Shreveport while on patrol. He testified that he did not see a car and did not see a car on fire. • At 1:52 a.m., the defendant called Ma-long, asked him for a ride again, told him that he was on Roy Road, and “that he had a service call.” • At 1:58 a.m., the defendant called Ma-long. • At 2:07 a.m., the defendant called Ma-long. • At an unspecified time 15 to 20 minutes prior to 2:26 a.m., Virginia Wailes, an employee for KCS Railroad was driving on North Lakeshore Drive. She testified that she did not see Tracy’s vehicle or any form of “illumination.” • At 2:23 a.m., the defendant called Ma-long. • At 2:24 a.m., the defendant called Ma-long. • At 2:26 a.m., while driving in a reverse route to North Lakeshore Drive, Wailes saw a car burning and called _1⅛911. • At 2:27 a.m., Deputy Adam Jacobo, of the Caddo Parish Sheriffs Department, was dispatched to a vehicle fire at North Lakeshore Drive and Kuhn Road. • At 2:46 a.m., Deputy Jacobo arrived as the first officer on the scene of the vehicle fire; the fire department personnel had already extinguished the flames. He testified that he began investigating the whereabouts of Tracy Winslow. • At 2:58 a.m., Deputy Pickett arrived at the scene of the vehicle. He testified that he immediately recognized Tracy’s vehicle and called Tracy, the defendant, and Consuela Green, the cashier at the only EZ Mart in Oil City. • At 3:09 a.m. and 3:10 a.m., Consuela Green called the defendant’s cell phone, but he did not pick up; she did not leave a voicemail message. Moments later, the defendant called back. Green told him about Tracy’s car being on fire in Shreveport. She testified that the defendant did not come to the EZ Mart store or ask for the location of Tracy’s car. • At or about 3:13 a.m., Deputy Dennis Williams, of the Caddo Parish Sheriffs Office, drove to the defendant’s home. He testified that he saw a green car with big rims (“the Hulk car”) in the driveway. He knocked for three to four minutes and saw the defendant arrive driving a blue and gray Z-71 Chevrolet pickup truck with the words “Reliable Tire Service” written on the side. Deputy Williams followed (driving) the defendant to Maggie Winslow’s apartment and told the defendant to call Deputy Jacobo. • At 3:20 a.m., Deputy Pickett called the defendant and left a voicemail message about Tracy’s car; the defendant called him right back. Deputy Pickett testified that although the defendant told him that he was at home |1Basleep, it actually sounded like he was driving at the time. Deputy Pickett told the defendant that “his wife’s car had been burned up.” The defendant stated that he had not seen her that day, but had heard from her via text message at 8:00 p.m. • Around 3:20 a.ra., the defendant called Deputy Jacobo and told him that he last saw Tracy that day between 2:00 p.m. and 3:00 p.m., that he last spoke to her between 5:00 p.m. and 6:00 p.m., that she drove to Shreveport, and that he received a text message from her at 8:00 p.m. • At 3:36 a.m., the defendant and Deputy Williams were still together when the defendant asked Deputy Williams for the location of Tracy’s car. • At 3:50 a.m., the defendant called Deputy Pickett. At trial, Donyell Malong testified as follows: he and his girlfriend picked the defendant up on Roy Road, Shreveport Blanchard Highway, that night; the defendant was wearing a red shirt and blue jeans; he did not see the defendant’s work truck; the defendant told him that his work truck was “in a safe place” and “that he (the defendant) was going to come back and get it the next day;” the defendant lived 10 to 15 minutes away from where he was picked up; he did not see the defendant’s gray truck at his (the | ^defendant’s) house; he saw the “broken down work truck” at the defendant’s house; the defendant had wrecked his Dodge Magnum and was driving a rental car at the time. Detective Scoggins testified with regard to Tracy’s cell phone records. He stated that the last registration for Tracy’s phone was January 23, 2011 at 11:42 p.m., at a location east of the only cell-phone tower located in Oil City, Louisiana. Detective Scoggins also testified that he investigated the location of one of the defendant’s cellphone calls. He stated: The analyst told me there was a phone call received on [the defendant’s] phone at 1:59 a.m., and we learned — we learn more and more each time we deal with the phone companies, you know, what they can and what they can’t do for us. I asked [the analyst] if he could give me a distance. I had never before in my life had asked that. He did give me a distance of — for the location of that handset for that telephone at 1:59 a.m. that morning as about 6/10ths of a mile south of a cell tower. An address for the cell tower is, I believe, was 2555 Roy Road. That cell tower is almost at the intersection of Roy Road and Louisiana Highway 173. Ms. Winslow’s car was found burning about 7/10ths of a mile directly south of that cell tower. So that puts [the defendant] very close to the vehicle that was set afire around the time it was set afire. Fire Marshall Investigator Charles Edwards conducted an investigation of Tracy’s charred vehicle. He testified as follows: the entire dashboard of the vehicle melted into the floorboard; Tracy’s car keys, radio and a gas can were found inside the car, but that there was no presence of ignitable substances; the presence of the radio generally indicated that the charred vehicle was not a stolen vehicle; the origin of the fire was the |17vehicle’s front passenger’s or driver’s floorboard, and the cause of the fire being an “incendiary, open flame introduced by human design;” the amount of damage to the vehicle exceeded $500; the title of the vehicle listed Tracy Winslow as being the owner and listed her address as being 140 Thomas Street, Oil City, Louisiana 71061; the 20-minute timeline by Virginia Wailes was well within the timeline of using common combustibles and being an incendiary fire; he walked the 1.1 miles between the location of Tracy’s car and the place where the defendant was picked up; it took him 20 minutes and 31 seconds. John Minor, a communications expert and consultant, was tendered as an expert in the field of communications. He provided information regarding the defendant’s phone records and how cell phones work. Minor | ^testified that on the day of Tracy’s disappearance, the vast majority of the defendant’s phone calls went to the cell phone sites closest to the home of Larry Wiggins in Shreveport. He stated that had the defendant been at his home in Oil City, the calls would not be dispatched to those cell phone towers in Shreveport. Minor also testified that the defendant’s cell phone records indicate that he was in the area of the homes of Larry Wiggins and Sabrina Harris that evening. Minor also testified that Larry called Tracy at 11:42 p.m., and the cell phone tower associated with this call was the cell phone tower that covers the Oil City area. He also stated that at 10:51 p.m., the defendant’s cell site was the tower in Oil City. Minor testified that the defendant’s 11:27 p.m. and 11:31 p.m. phone calls were transmitted to the cell site northeast of Cross Lake, which indicated that the defendant could have been in Oil City, where Tracy’s mother lived, at that time. He testified that the defendant’s phone calls during the time period of 1:52 a.m. to 2:24 a.m. were through the cell site located on North Lakeshore Drive. Corporal Robert Greer, of the Caddo Parish Sheriffs Department, testified that he performed a data retrieval for electronic evidence on a 119computer located in the defendant’s home. He stated that on January 6, 2011, between the hours of 1:00 a.m. and 2:00 a.m., someone was on that computer viewing a site about how to perform GPS tracking through cell phones. Cpl. Greer also testified that around that same time, someone from that computer was looking into Tracy’s email account. Pastor James T. Sims and Tammy Jackson testified as witnesses for the defense. Pastor Sims testified that neither Tracy nor the defendant were members of the church he pastored, but Tracy “would attend occasionally.” Pastor Sims also testified that the defendant called him in early January 2011 and asked if he would “talk to them[.]” He further testified that he provided counseling for the defendant and Tracy and that he had talked to the defendant more than Tracy because the defendant “was initiating the whole concept, the whole counseling deal.” On cross-examination, Pastor Sims testified that he had “heard rumors” about issues of domestic violence between the defendant and Tracy. However, he stated that neither the defendant nor Tracy talked to him about alleged violence. According to Pastor Sims, he believed the couple was “making progress.” He stated that he had seen the defendant and Tracy in church the day she disappeared and he was surprised when he learned what had happened. He admitted that “behaving appropriately in the presence of a pastor does not indicate that a person is incapable of committing a crime of violence.” Tammy Jackson (the defendant’s sister) testified that the defendant and Tracy had a “great relationship,” and she did not know of any serious issues between the two. She also testified that she was “extremely shocked” when they separated. She admitted that she did not live with the defendant | Pnand Tracy and she did not know what went on in their house. Jackson also denied having knowledge of threatening phone calls or text messages from the defendant to Tracy. At the conclusion of the trial, the jury found the defendant guilty as charged. As stated above, he was sentenced to serve 40 years at hard labor on the second degree kidnapping conviction without benefit of probation, parole or suspension of sentence. He was also sentenced to serve 10 years at hard labor on the simple arson conviction; the sentences were ordered to be served concurrently. The defendant did not file a motion to reconsider sentence. The defendant appeals his convictions and one of his sentences. DISCUSSION The defendant contends the evidence was insufficient to support his convictions. He argues: (1) the state did not present any eyewitnesses to his alleged commission of these crimes; (2) there were no valid samples taken from the scene of the alleged crime that matched his DNA; (3) there was no fingerprint analysis to place him at the scene of the burned vehicle; (4) there was no evidence of physical injury or sexual abuse to Tracy on January 28, 2011; and (5) none of the witnesses had direct evidence that he destroyed the vehicle or kidnapped Tracy. The standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219; State v. Cunningham, 46,664 (La.App.2d Cir.11/2/11), 77 So.3d 477. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438. However, that rule does not establish a stricter standard of review than the “rational juror’s reasonable doubt” formula, but, instead, provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. State v. Wright, 445 So.2d 1198 (La.1984); State v. Sutton, 436 So.2d 471 (La.1983); State v. Christopher, 561 So.2d 935 (La.App.2d Cir.1990), writ denied, 567 So.2d 1124 (La.1990). When a conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Brown, 47,050 (La.App.2d Cir.5/16/12), 92 So.3d 579; State v. Baker, 46,089 (La.App.2d Cir.3/2/11), 58 So.3d 571. A jury acting as the fact finder may reasonably reject the hypothesis of innocence offered by the defendant unless that hypothesis is sufficiently reasonable and sufficiently strong that a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt. State v. Swanzy, 2012-1297 (La.4/1/13), 110 So.3d 549; State v. Captville, 448 So.2d 676 (La.1984); State v. Mosley, 46,756 (La.App.2d Cir.12/16/11), 80 So.3d 1164, writ denied, 2012-0117 (La.5/4/12), 88 So.3d 462. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond reasonable doubt. State v. Wright, supra; State v. Christopher, supra. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. Second Degree Kidnapping Kidnapping is: (1) the forcible seizing and carrying of any person from one place to another; or (2) the enticing or persuading of any person to go from one place to another; or (3) the imprisoning or forcible secreting of any person. LSA-R.S. 14:44.1(B). Pursuant to LSA-R.S. 14:44.1 (A), second degree kidnapping is the commission of any of the acts listed in LSA-R.S. 12fjl4:44.1(B), wherein the victim is: (1) Used as a shield or hostage; (2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony; (3) Physically injured or sexually abused; (4) Imprisoned or kidnapped for seventy-two or more hours[;] or (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon. Second degree kidnapping is a general intent crime. State v. Cerda-Anima, 12-682 (La.App.5th Cir.5/30/13), 119 So.3d 751. General criminal intent exists “when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” LSA-R.S. 14:10(2). Tracy’s body was not found and no one witnessed her death; therefore, there was no direct evidence that she was killed. However, after a thorough review of this record, we find that there was ample circumstantial evidence presented from which the jury could find that the defendant was guilty of the crimes charged. The evidence revealed a violent dating history between Tracy and the defendant. Their children testified that they saw the defendant hit Tracy on her head with a gun, and that he fired the gun inside their home. Cherrie and Tamika Alphard testified that the defendant threatened to “break Tracy’s neck in [several] places” in December 2010, less than one month before she ^disappeared. Tamika also testified that Tracy had shown her a text message in which the defendant had threatened to kill her. Teressa Winslow testified that she heard a threatening voi-cemail message from the defendant to Tracy because the defendant was angry that Tracy was not answering her cell phone. The state also introduced evidence of the text messages exchanged between the defendant and Tracy on the evening of January 23, 2011. During the exchange, the defendant demanded that Tracy meet him. He also informed her that he knew “how to GPS [her] now” and he stated, “You don’t meet me, you will be sorry[.]” Additionally, the defendant’s cell phone records revealed that he followed Tracy around Shreveport the afternoon of her disappearance, making calls and/or sending text messages that transmitted from towers located near the residences of Larry Wiggins and Sabrina Harris. The phone records also indicate that the defendant left Oil City and headed towards Shreveport at 11:27 p.m., traveling the only highway leading from Oil City to Shreveport. Meanwhile, Tracy, who had called home to talk to her children at 11:28 p.m., was traveling that same highway— from Shreveport to Oil City. It is highly likely that the defendant and Tracy passed each other because the defendant’s cell phone records show that his direction changed at 11:31 p.m., from the south-facing antennas to the north-facing antennas. The evidence establishes that at that point, the defendant abandoned his plan to return to Shreveport and followed Tracy back to Oil City. The defendant’s next call, made at 11:44 p.m., shows that he was back in Oil City, where he called Tracy; she did not answer because, by that time, she hflwas on the phone with Larry, her boyfriend. Further, Larry testified that he talked to Tracy during her drive from Shreveport to Oil City on January 23, 2011. He stated that he was still on the phone with her when she arrived at her mother’s apartment complex and he heard her turn off her car. At the same time that he heard the “dinging” sound of the car door being opened with the keys in the ignition, he heard the defendant’s voice. Larry testified that the defendant was shouting, cursing and demanding to know why Tracy had not answered his calls. He also testified that he heard Tracy shouting back, followed by a scuffling/crackling sound on the phone. Larry testified that he has not seen or heard from Tracy since that phone call. Thus, defendant’s argument that the jury was not presented with any evidence of abusive behavior towards Tracy on the night of January 23, 2011 is not supported by the evidence. Tracy’s children testified that she called them around 11:00 p.m. and told them that she would be home soon. Damione testified that he heard a noise resembling a “car burning out” emanating from the parking lot of their apartment complex. He stated he called his mother’s phone, but he did not receive an answer. Mariah Jackson, a neighbor, testified that she saw Tracy’s car speeding out of the apartment complex with its headlights turned off. Jackson felt the car was moving faster than she has ever seen Tracy drive. Cpl. Greer testified that on January 6, 2011, weeks before Tracy’s disappearance, the computer in the defendant’s home had been used to | ^search for information on how to perform GPS tracking through cell phones. Cpl. Greer also testified that the same computer had been used to access Tracy’s email account. Although the defendant performed computer research on cell phone GPS tracking, sadly, he failed to research how that same technology could be used to place him at the location of the kidnapping and arson. Moreover, the defendant’s statements to police officers were contradicted by the evidence. For example, he stated that he did not know that Tracy had a boyfriend. However, in his text messages to Tracy on the evening of her disappearance, he made numerous explicit references to the fact that she was dating someone else. He also gave explicit descriptions of the man and call him that “p-ass n-” and “her man.” Additionally, the defendant stated that he had not seen Tracy since they went to eat after church that day. However, as stated above, the defendant’s cell phone records show that he had been tracking Tracy the evening of her disappearance, as he had made calls from near Larry’s house and from near Harris’ house that night. Furthermore, the cell phone records indicate that the defendant made a phone call from the Cooper Road area of Tracy’s burning car at 1:59 a.m., prior to the time the 911 phone call was made. Therefore, we find that the evidence was sufficient for the jury to conclude, beyond a reasonable doubt, that the defendant forcibly seized Tracy from the parking lot of her mother’s apartment complex and carried her to another location, or that the defendant imprisoned or forcibly secreted Tracy. No one has seen or heard from Tracy since the night she disappeared; she did not return home to her mother and children as she had planned, andj^she did not report to work the following day or any day since. Thus, although there was no direct physical evidence that Tracy was kidnapped, we find that the above-referenced circumstantial evidence was sufficient to establish that, at the very least, the defendant forcibly seized Tracy and imprisoned her for 72 hours or more. Simple Arson Simple arson is either (1) the intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner; or (2) the starting of a fire or causing an explosion while the offender is engaged in the perpetration or attempted perpetration of another felony offense even though the offender does not have the intent to start a fire or cause an explosion. LSA-R.S. 14:52. Simple arson is a general intent crime. State v. Simmons, 443 So.2d 512, 521 (La.1983); State v. Martin, 2004-924 (La.App.5th Cir.1/25/05), 895 So.2d 55. We note that there is no direct evidence linking the defendant with the burning of Tracy’s vehicle. However, there are multiple facts which can be inferred from the evidence presented. In his statements to police officers, the defendant denied being in the area of Tracy’s burning vehicle that night. However, his cell phone records tell an entirely different story. The defendant’s cell phone records indicate that he was still in Oil City at 1:33 a.m. when he first called Donyell Malong to tell him that his work truck had broken down in Shreveport and that he needed a ride home. Approximately 25 minutes later, 1:52 a.m., the defendant called Malong again asking him to pick him up on Roy Road in Shreveport. Thereafter, the defendant made two additional calls to Ma-long. These calls were made from Shreveport, ^approximately one mile from the site where Tracy’s burning car was found. When Malong picked the defendant up, he did not see the defendant’s work truck in the area. Malong dropped the defendant off at home in Oil City. Approximately 35 minutes later, when the police officers arrived at the defendant’s home looking for Tracy, the defendant did not answer the door. Minutes later, he arrived, driving the work truck that had allegedly broken down in Shreveport. From these facts, the jury could have inferred that the defendant drove Tracy’s car to the remote area, started the fire, walked away from the site and then called Malong to pick him up from the site. Accordingly, after viewing the facts inferred from the circumstances, in a light most favorable to the prosecution, we find that any rational trier of fact could have found, beyond a reasonable doubt, that the defendant committed the. crime of simple arson. Evidentiary Ruling The defendant contends the trial court erred in admitting evidence of prior crimes and/or bad acts. He argues that the trial court erroneously allowed the state to introduce the following testimony and evidence: (1) text messages attested to by Karen Milbrodt (records custodian for Verizon) between the defendant and Tracy; (2) testimony from Tamika Alphard and her mother, Cherrie Alphard, pertaining to the December 2010 park incident; and (3) testimony from Teressa Winslow pertaining to a particular voicemail left by the defendant. More specifically, the defendant argues that the text messages from Verizon contained argumentative and vulgar language and were introduced to show his “jealous and possessive” nature. He also maintains that the testimony from Tamika, Cherrie and Teressa was | ^elicited to demonstrate his bad character. According to the defendant, neither the text messages nor the testimony proved motive, opportunity or intent to commit kidnapping or arson, and the prejudicial effect of the evidence outweighed its probative value. Generally, a trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Humphries, 40,810 (La.App.2d Cir.4/12/06), 927 So.2d 650, writ denied, 2006-1472 (La.12/15/06), 944 So.2d 1284. This same standard is applied to rulings on the admissibility of other crimes evidence. State v. Wright, 2011-0141 (La.12/6/11), 79 So.3d 309; State v. Cosey, 97-2020 (La.11/28/00), 779 So.2d 675; State v. Humphries, supra. Evidence is relevant when it tends to make the existence of any fact material to the disposition of the matter more or less probable than it would be without the evidence. LSA-C.E. art. 401. However, even if relevant, such evidence may still be excluded if its probative value is substantially outweighed by the danger that it will cause unfair prejudice, confusion of issues, undue delays, and wasted time, or that it will mislead the jury. LSA-C.E. art. 403. Courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. LSA-C.E. art. 404(B)(1); State v. Rose, 2006-0402 (La.2/22/07), 949 So.2d 1236; State v. Howard, 47,495 (La.App.2d Cir.11/14/12), 106 So.3d 1038. Evidence of other crimes, wrongs or bad acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126, 128 (La.1973). However, the state may introduce such evidence if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. LSA-C.E. art. 404(B)(1). The state must provide a criminal defendant with reasonable notice in advance of trial if it intends to offer such evidence. LSA-C.E. art. 404(B)(1); State v. Prieur, supra. Even when other crimes evidence is offered for a purpose allowed by LSA-C.E. art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. State v. Rose, supra; State v. Martin, 377 So.2d 259 (La.1979). The state also bears the burden of proving that defendant committed the other crimes, wrongs or acts. State v. Galliano, 2002-2849 (La.1/10/03), 839 So.2d 932. Although a defendant’s prior bad acts may be relevant and otherwise admissible under LSA-C.E. art. 404(B), the court still must balance the probative value of the evidence against its prejudicial effects before it can be admitted. LSA-C.E. art. 403. Any inculpatory evidence is “prejudicial” to a defendant, especially when it is probative to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). “Prejudicial,” in this context, means that probative evidence of prior misconduct is excluded only when it is unduly and unfairly prejudicial. Id.; Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). In the instant case, the key inquiry is whether the evidence of the defendant’s prior bad acts was relevant to serve some independent purpose, apart from showing merely that the defendant was a “bad person.” The state’s Prieur notice made references to the defendant’s “motive, intent, and plan for the charges of second degree kidnapping and simple arson.” The testimony regarding the defendant’s prior bad conduct against Tracy negated any claim that he intended only to frighten, not injure, her. The defendant had repeatedly threatened to harm Tracy. He had threatened to kill her and to “break her neck” in several places. Additionally, in a text message to Tracy mere hours before she disappeared, the defendant warned her that she would “be sorry” if she did not meet him. Moreover, the defendant’s text messages contradicted his statements to law enforcement officers, during which he denied knowing that Tracy was dating someone else. Based on this record, we find that the trial court correctly concluded that the evidence at issue proved that the defendant had motive, intent and |S2planned to commit the crimes charged. Consequently, the trial court did not abuse its discretion in admitting the evidence of defendant’s prior bad acts at trial. This assignment of error lacks merit. Excessive Sentence The defendant also contends the sentence of 40 years at hard labor without any benefit of parole, probation or suspension of sentence for the second degree kidnapping conviction is excessive. He argues that although the trial court had the benefit of a pre-sentence investigation (“PSI”) report, it did not refer to the report or give any considerations to any mitigating factors. According to the defendant, he did not deserve the maximum sentence and “[t]he goals of punishment and rehabilitation can best be accomplished with a less severe sentence.” As stated above, the defendant was sentenced to serve 40 years at hard labor, without benefit of probation, parole or suspension of sentence for the second degree kidnapping conviction. He did not file a motion to reconsider his sentence. LSA-R.S. 14:44.1(0 provides: Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence shall be without benefit of parole, probation, or suspension of sentence. When a defendant fails to timely file a motion to reconsider sentence under LSA-C.Cr.P. art. 881.1, the appellate court’s review is limited to the Unbare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd, 46,321 (La.App.2d Cir.9/21/11), 72 So.3d 952. An excessive sentence argument is reviewed by examining whether the trial court adequately considered the guidelines established in LSA-C.Cr.P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Preston, 47,273 (La.App.2d Cir.8/8/12), 103 So.3d 525; State v. Gardner, 46,688 (La.App.2d Cir.11/2/11), 77 So.3d 1052. Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and it is the purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Preston, supra; State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875. The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute; thus, a sentence will not be set aside as excessive unless the defendant shows that the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 550. As a general rule, maximum or near maximum sentences are reserved liufor the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. However, the reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021, writ denied, 2011-2347 (La.3/9/12), 84 So.3d 551. In the instant case, a sentencing hearing was held on November 9, 2012. Prior to imposing the sentence, the trial court stated: This Court has heard the argument of both the State and defense counsel. This Court has heard all of the testimony herein regarding sentencing. This Court has also reviewed the PSI report in the matter submitted regarding sentencing. In accordance with Article 894.1 of the Code of Criminal Procedure the Court also finds that the defendant’s actions show deliberate cruelty to the victim. The Court also finds that the defendant’s actions have resulted in significant loss to the victim’s family; her children, her mother, as well as the defendant’s children, and the Court also takes into account the criminal history of the defendant^] In accordance with Article 894.1 of the Code of Criminal Procedure this judge notes that any lesser sentences would deprecate the seriousness of the defendant’s crimes. Further, this Court does not find that the defendant has expressed any genuine remorse. The sentence imposed, while the maximum sentence, was within the statutory limits. Additionally, although it was unnecessary in this case, the record reveals adequate compliance with LSA-C.Cr.P. art. 894.1, as the trial court expressly referred to the guidelines and recited relevant factual considerations. The court noted the defendant’s cruel actions and the loss to his family and Tracy’s family. Further, the court noted the defendant’s IsfiCriminal history and his lack of remorse. We find that the trial court did not abuse its vast discretion in imposing the maximum sentence for this defendant. This sentence does not shock the sense of justice and is not excessive. This assignment lacks merit. Ineffective Assistance of Counsel The defendant has filed a pro se brief, in which he asks this Court to review the record for errors patent, in accordance with LSA-C.Cr.P. art. 920. He also contends he was denied effective assistance of counsel during his trial. However, the defendant does not present any errors or omissions to prove that his counsel was ineffective. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930; State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Mitchell, 37,916 (La.App.2d Cir.3/3/04), 869 So.2d 276, writ denied, 2004-0797 (La.9/24/04), 882 So.2d 1168. However, when the record is sufficient, an appellate court may resolve this issue on direct appeal in the interest of judicial economy. State v. Mitchell, supra. A claim of ineffective assistance of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that his attorney was ineffective, the defendant first must show that |S(icounseI’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. Id. Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim. General statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied 2002-1570 (La.5/30/03), 845 So.2d 1067. In this case, the defendant made a conclusory contention that his trial counsel was ineffective. However, he failed to make any specific allegations |37or provide any instances where his counsel’s performance was deficient. Therefore, the defendant has failed to meet the first prong under Strickland. Consequently, the defendant’s assignment of error is meritless. ERRORS PATENT Our review of this record for errors patent revealed that the trial court failed to impose the mandatory $15,000 fine for the simple arson conviction. LSA-R.S. 14:52(B) provides, “[WJhoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars and imprisoned for not less than two years nor more than fifteen years.” The trial court imposed a sentence of 10 years; however, it failed to impose the fine. Pursuant to LSA-C.Cr.P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, as this Court has recognized, this Court is not required to take such action. See, State v. Jones, 42,531 (La.App.2d Cir.11/7/07), 968 So.2d 1247; State v. Griffin, 41,946 (La.App.2d Cir.5/2/07), 956 So.2d 199. The state did not object to the error and the defendant was not prejudiced in any way by the trial court’s failure to impose the mandatory fine. Accordingly, we decline to remand this case for resentencing. CONCLUSION For the foregoing reasons, the defendant’s convictions and sentences are affirmed. J^CONVICTIONS AFFIRMED; SENTENCES AFFIRMED. . On appeal, the defendant has only challenged the sentence for second degree kidnapping as constitutionally excessive. . The defendant also had custody of two of his other children, who lived with Tracy and him. At the time of trial, Eddie Lewis was 17 years old and Edwina Lewis was 20 years old. . Shicarra testified that she saw the defendant hitting Tracy over the head with a gun because of "something in her (Tracy’s) phone." She also stated that she witnessed him shooting the gun (a 9-millimeter handgun) twice in the house and he threatened to kill "everyone.” Damione testified that his sister woke him up and he heard his parents arguing. He also testified that he saw the defendant hitting Tracy and that the defendant shot his gun "in the air" inside the home. Damione stated that the defendant stated that he would kill them. . During his interview with the detectives on the night of Tracy’s disappearance, the defendant denied the incident, stating that it "didn’t happen." Later, he stated, ”[T]hat was in the privacy of our own home." . Witnesses testified that Tracy began dating Larry Wiggins in 2010, while she was still living with the defendant. According to one witness, Tracy and the defendant "had split up, but she was still living with him at the time." . Larry testified that he recognized the defendant’s voice because Tracy would sometimes use her speaker phone function during her phone conversations with the defendant. . The state introduced two CD's from the EZ Mart surveillance cameras. The videos were played for the jury and entered into evidence. . Wailes testified that approximately 15-20 minutes had elapsed between the time she first drove near the location and the second time she drove by and saw the burning car. . Wailes testified, “Well, whenever I saw it was fire, I turned into North Lakeshore, there at the edge, and put my lights on bright to see if there was anybody there because by the time I got to the road, I could tell there was a car burning, and looked to see if there was anybody. I could not see anybody around though.” A copy of this 911 call was received into evidence as State Exhibit No. 54 and was played for the jury. . A patrol video from Deputy Williams’ patrol car was entered into evidence as Exhibit 55 and was played in open court. . Deputy Jacobo testified, "He (Jackson) didn’t act the way I would have acted if my wife’s car would have been burned up. I mean, I would have been en route on the way down there. And he (Jackson) was just like, okay.” .Deputy Jacobo testified, “I asked Mr. Jackson if he knew who Tracy Winslow was, and he said it was his girlfriend. And I asked him, when was the last time he saw her? He said he saw her, I believe it was on the 23rd which was a Sunday between 2:00 and 3:00, he said was the last time he saw her. I believe he said the last time he spoke to her was between 5:00 and 6:00 p.m. on Sunday. And he also told me that she informed him that she was on her way to Shreveport, but wouldn't tell him why she was going to Shreveport. And then he told me that he had received a text from her about 8:00 asking him if he had gotten the babies, and that was pretty much it. And he said that they were having problems in their relationship, but they were trying to make it work.” . Deputy Pickett testified, “He asked me did I think he needed to come down here, and I said yes, but he was like he's not going to come down (to the location of the burning car).” . Herbert Robinson, the former owner of Budget Rent-A-Car franchise in Shreveport, testified that the defendant rented a silver Kia Optima on January 21, 2011, at 5:38 p.m. (with the mileage at 33,824) and returned the vehicle at January 25, 2011 (with the mileage at 34,923). . Investigator Edwards stated that the fire did not originate from the trunk, the glove compartment area, or underneath the car. . Investigator Edwards stated that the value of the custom rims on the vehicle alone exceeded $500.00. . Edwards provided testimony concerning documents from Safeway Auto. State Exhibit No. 108. Felicia Holden testified that she never saw the defendant driving the car. Shi-carra testified that her mother continued to drive the car when they moved in with her grandmother. Damione testified that his mother continued driving her Dodge Charger after leaving his father and that she kept it at his grandmother’s (Maggie Winslow) apartment. Tamika Alphard testified that Tracy drove the silver Charger exclusively as her main vehicle and stored items in the car. Larry testified that Tracy drove a Dodge Charger. . Edwards testified, "The actual time that it would take, if you did want to use acceler-ants, is unknown. But the 20-minute time-line that she (Wailes) gave us is well within that possibility. Like I said, we’ve had smoldering fires that you light and it smolders for two or three hours before it sustains a flame to cause a fire. But the 20-minute timeline that she (Wailes) gave us in this particular case, on that particular day in this investigation, the 20 minutes is well within the time-line of using common combustibles and being an incendiary fire.” .Minor explained: [C]ell phones often use the nearest location of the handset to transmit and receive data, as I've indicated here. It's not always the strongest signal or closest cell site, but it’s usually within an area nearest to the cell phone handset!.] [A]nd once [a cell phone is] booted up, it begins to scan with its radio receiver to see what cell sites it sees in. an area. It will create a list that we call — we’ll call genetically, ‘the neighbor list[.]' It will determine not only the signal strength, but we’ll call it ‘signal quality.' There are a number of factors that it is reviewing. And it will continue to monitor every six to 12 seconds. It happens — because it’s a computer, it happens. You don’t see any of this. It monitors again, and refreshes the list. And it will change who’s at the top signal quality level, depending upon those variety of factors and a bunch of calculations and so forth, and maintain that neighbor list. Before your phone engages in a call, or texting, or data, it will register to the best 'signal quality.’ . Minor stated that the term “cell site” encompasses the cell tower. . Larry’s cell phone records indicated that he was at home during his last phoné call to Tracy. . In the instant case, on October 25, 2011, the state notified the defense that it intended to introduce at trial evidence of the park incident. The 404(B) Notice provided: In December 2010, the defendant, Eddie Lee Jackson, confronted Tracy Winslow at the Earl Williams Park in Oil City, Louisiana. Eddie Lee Jackson drove up to and nearly ran into Tracy Winslow’s vehicle. The defendant walked up to the driver side of her vehicle where she was seated and grabbed the driver side window. The defendant then told Tracy Winslow that he would break her neck if she left him. This incident was witnessed by Cherrie Alphard and Tamika Alphard. The purpose of this evidence is to show the defendant’s motive, intent, and plan for the charges of Second Degree Kidnapping and Simple Arson. Thereafter, on July 27, 2012, the state notified the defense that it intended to introduce at trial evidence of threats by the defendant to Tracy. This notice provided: During the time period of November 2010 through January 2011, Tracy Winslow had expressed concerns about her safety and relayed threats made to her by the defendant Eddie Lee Jackson. She also indicated that she believed the defendant had been following her when she traveled to the Shreveport, Louisiana area. This information was communicated to Tamika Alphard, Cherrie Alphard, Teressa Winslow, and Felicia Holden[.] . As stated above, the defendant did not appeal the sentence imposed for the simple arson conviction. . The fire investigator testified that the value of the custom rims on Tracy’s vehicle, alone, exceeded $500.

KEATY, Judge. | plaintiff, Kevin Jones, Sr., appeals from the trial court’s judgment granting summary judgment in favor of Defendants, the Town of Woodworth (the Town) and Officer David Sikes. For the following reasons, the trial court’s judgment is reversed. FACTS AND PROCEDURAL BACKGROUND On December 18, 2009, Jones was traveling north on U.S. Highway 165 when he stopped at a convenience store located in Woodworth, Louisiana. Officer Sikes, who was parked across from the convenience store, ran a license plate check on Jones’ vehicle. The license plate check revealed that the driver’s license registered to the license plate was suspended. After Jones re-entered U.S. Highway 165, Officer Sikes followed him and subsequently pulled him over for suspicion that Jones was driving with a suspended license. Officer Sikes thereafter issued four tickets to Jones for: (1) driving under suspension; (2) unlawful use of a driver’s license; (3) no insurance; and (4) improper muffler/dual pipes. According to the petition for damages, Officer Sikes told Jones that his vehicle was going to be towed and that he would have to post a cash bond in the total amount of the four tickets to get the hold on his vehicle released. Thereafter, the towing company would return Jones’ vehicle to him after he paid the towing charge and accrued storage fees. Jones explained to Officer Sikes that he worked out of his vehicle for his job with a tire repair service, and he objected to having his vehicle towed because his brother was less than three miles away and available to retrieve Jones’ vehicle. Despite Jones’ request, Officer Sikes had Jones’ vehicle towed from the scene. The tickets totaled in excess of $1,000. Jones was not able 12to afford that amount or the towing charge and accumulated storage fees. As a result, he lost his job, his vehicle, and his ability to provide for his family. Jones subsequently filed suit against the Town and Officer Sikes alleging that he was stopped without probable cause for the purpose of generating funds for the Town. After the Town and Officer Sikes deposed Jones, Defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of Defendants. Jones appealed the trial court’s judgment and asserted for the first time that he was seeking recovery for a violation of his Fourth Amendment rights under the United States Constitution. Defendants removed this case to the United States District Court for the Western District of Louisiana, and Jones moved for remand. The magistrate judge held that Jones did not plead a federal claim in his state court petition and had not yet technically asserted a federal claim at the time of the removal because the reference to a federal recovery did not come in the form of an amended complaint. The federal district judge adopted the magistrate’s report and recommendation, and this case was remanded back to this court. DISCUSSION On appeal, Jones contends: (1) the trial court erred in ruling that the acts of Officer Sikes, who acted without probable cause or reasonable suspicion, did not violate the constitutions of the United States and Louisiana which prohibit unlawful search and seizure; (2) the trial court erred in ruling that Jones, passing through the Town, observing the laws of the town as he passed through, did not have a reasonable expectation of privacy on his license plate; and (3) the trial court erred in granting summary judgment because there were genuine issues as to material facts. 1,.¡“Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Louisiana Safety Ass’n. of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n., 09-23, p. 5 (La.6/26/09), 17 So.3d 350, 353 (citing Power Mktg. Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662). Expectation of Privacy In support of his first assignment of error, Jones contends that his constitutional rights were violated when Officer Sikes, without probable cause or reasonable suspicion, randomly ran Jones’ license plate to find violations against him in order to generate funds for the Town. In support of his second assignment of error, Jones contends that he had a subjective expectation of privacy on his license plate such that Officer Sikes’ random run of his license plate numbers was an unwarranted intrusion into his privacy. In opposition, Defendants contend that federal and state courts have held that police officers may run a search on a license plate without implicating constitutional protections. Defendants allege that police officers do not need either reasonable suspicion or probable cause to run a license plate check. Defendants contend that the information police officers gather from those license plate checks can provide them with the reasonable suspicion necessary to make a traffic stop during which they can confirm or dispel their suspicions. Upon review, we must first determine whether Jones had an expectation of privacy in his license plate before we decide whether Officer Sikes needed probable cause or reasonable suspicion to randomly run Jones’ license plate. In |4that regard, both the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect against unreasonable searches and seizures. These constitutional provisions, however, apply only if an individual invoking their protection can prove that the government has infringed upon a legitimate expectation of privacy. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). “Federal and state constitutional protections against unreasonable searches exist only when an individual has an actual expectation of privacy that society is prepared to recognize as reasonable.” State v. Skinner, 08-2522, p. 6 (La.5/5/09), 10 So.3d 1212, 1215-16. Absent a legitimate expectation of privacy, there can be no “search” subject to the warrant requirement. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). Thus, a person has a legitimate expectation of privacy when two requirements are met. State v. Ragsdale, 381 So.2d 492 (La.1980). First, the person must have a “subjective expectation of privacy” in the place searched or item seized. Id. at 497. Second, the expectation of privacy must be one which “society ... is prepared to recognize as being reasonable.” Id. Jones argues that he has a subjective expectation of privacy in his license plate. He has offered no legal authority, however, showing that society would recognize an expectation of privacy in an automobile’s license plate number. To the contrary, a survey of federal and state cases addressing this issue have concluded that a license plate is an object which is constant ly exposed to public view and in which a person, thus, has no reasonable expectation of privacy, and that consequently, conducting a random license plate check is legal. For example, the United States Supreme Court has held that an individual does not have a reasonable expectation of privacy in an automobile’s vehicle | ¡identification number. New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). Other jurisdictions have extended this holding and determined that a law enforcement officer can randomly check license plate numbers without intruding on a defendant’s privacy rights. See State v. Myrick, 282 N.J.Super. 285, 659 A.2d 976 (Law Div.1995); see also United States v. Walraven, 892 F.2d 972 (10th Cir.1989). In State v. Bjerke, 697 A.2d 1069, 1073 (R.I.1997), the court held that a computer check of the defendant’s license plate was not a Fourth Amendment “search” because license “plates and the information behind them are within the control and custody of the state through the Registry of Motor Vehicles.” The court in Bjerke further held that “there can be no expectation of privacy in one’s license plate when it hangs from the front and the rear of one’s vehicle for all the world to see.” Id. Additionally, the Fifth Circuit has put the matter plainly by holding that “[a] motorist has no privacy interest in her license plate number.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 529 (5th Cir.1999). The Louisiana Fourth Circuit Court of Appeal has further held that a criminal defendant has no expectation of privacy in a license plate on a stolen vehicle parked in his driveway in plain view of the public. State v. Nicholson, 95-2526 (La.App. 4 Cir. 2/15/96), 669 So.2d 1280. We agree with the reasoning of the foregoing decisions in that an individual has no privacy interest in his or her license plate, and that a random license plate check does not constitute a search or seizure within the meaning of the Fourth | (Amendment and the Louisiana Constitution. Accordingly, the trial court’s judgment is affirmed in this regard. Probable Cause and/or Reasonable Suspicion As discussed above, Jones contends that his constitutional rights were violated when Officer Sikes, without probable cause or reasonable suspicion, randomly ran Jones’ license plate. Jones assumes that a police officer needs some level of suspicion before he can legally run a check on a license plate number on a vehicle in a public location. As discussed above and because Jones has no expectation of privacy in his license plate number, Officer Sikes could legally run a search on the license plate number without a reasonable suspicion or probable cause that Jones was committing a crime. Thus, the trial court’s judgment is affirmed in this regard. Genuine Issue of Material Facts Jones argues that the Town and Officer Sikes gathered evidence from him illegally, i.e., stopped him without probable cause for the purpose of finding violations for which he could be ticketed to generate funds for the Town. In his petition, Jones alleged that Officer Sikes chose to have Jones’ vehicle towed despite Jones’ request that his brother, who was nearby, be allowed to retrieve the vehicle because Jones needed the vehicle in connection with his employment. Jones further alleged that because he was unable to afford to pay the tickets or the towing fee and accrued storage fees, he lost his vehicle and his job and was unable to provide for his family. In its motion for summary judgment, Defendants cited Hopper v. Bills, 255 La. 628, 232 So.2d 296 (1970), in support of its assertion that Officer Sikes was vested with the authority to have Jones’ vehicle towed. |7In Hopper, a State Police desk sergeant called a wrecker service to remove a log truck and trailer that was overturned in a ditch. The plaintiff, the truck’s owner, later filed suit against the wrecker sendee seeking damages for what he alleged was the illegal seizure and wrongful detention of his truck and trailer. The trial court found in favor of the defendant, the court of appeal affirmed, and the supreme court granted certiorari. See Hopper v. Bills, 220 So.2d 769 (La.App. 1 Cir.), writ issued, 254 La. 281, 223 So.2d 408 (1969). The evidence showed that the overturned truck was located between four and thirteen feet from the blacktopped portion of the roadway on a Saturday afternoon, a time of heavy travel, and that it “was a source of curiosity for passing motorists,” which caused vehicular slowing and traffic congestion in the area. Hopper, 232 So.2d at 299. The evidence further disclosed that the plaintiff was not present when the accident was investigated and there were no license plates on the truck. In affirming the court of appeal, the supreme court held that the State Trooper “did not abuse his discretion in making a judgment to have plaintiffs vehicle removed from the ditch and towed away.” Id. The supreme court rejected, however, the notion that the State Trooper’s actions were authorized because of custom. Instead, the supreme court looked to the facts and circumstances surrounding the towing of plaintiffs truck and determined that “the State Trooper acted with immediate speed in order to eliminate what he thought was a public hazard.” Id. at 300. In the instant case, Defendants did not present any evidence to dispute Jones’ assertion that his brother was available to pick up his vehicle in lieu of it being towed. In addition, the record fails to disclose any facts regarding the location of Jones’ vehicle when Officer Sikes pulled him over and what effect, if any, Jones’ stopped vehicle had on the flow of traffic and/or the safety of the 18motoring public. More specifically, Officer Sikes’ affidavit is silent regarding his decision to have Jones’ vehicle towed. Thus, genuine issues of material fact exist precluding summary judgment. DECREE For the forgoing reasons, the judgment of the trial court is reversed. All costs of this appeal are assessed against the Town of Woodworth and Officer David Sikes. REVERSED. . The references to federal law herein are made because federal jurisprudence interpreting the federal constitution are persuasive authority to interpreting our own constitution. See State v. White, 321 So.2d 491 (La.1975).

In re City of Eunice; Rozas, Brian;— Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 09-C-6656-C; to the Court of Appeal, Third Circuit, No. 12-1232. Denied. VICTORY, J., would grant.

LANIER, Judge. These proceedings commenced with a boundary action, La.C.C. arts. 784-796 and La.C.C.P. arts. 3691-3693, filed by Rho-ney Warren and his wife, Barbara Jenkins Warren, against Clara Singleton Day. Day subsequently filed a separate action against the Warrens contending the Warrens built an oxidation pond partially on her property, that the presence of the pond constituted a continuous trespass on her property, that the oxidation pond emitted noxious gases and odors and overflowed and caused damage to the rest of her property, and that the operation of the oxidation pond was a nuisance within the purview of La.C.C. arts. 666-669. Day prayed for money damages and injunctive relief. These two suits were consolidated for trial. The trial court rendered judgment in the boundary action fixing the boundary between the Warrens and Day in accordance with the survey map of M.K. Johnston, dated February 18, 1984. Judgment was rendered in the nuisance action in favor of Day and fixing the damages to Day’s property at $1,000 per acre on the total acreage north of the Louisiana Highway 1046 right-of-way, ordering Rhoney Warren to pay the damages in 60 days and ordering that “Ronnie Warren is to receive the salvage rights and title to that property which is located North of the right-of-way of Louisiana Highway 1046.” From that judgment, Day took this suspensive appeal. The Warrens have not appealed that judgment or answered Day’s appeal. FACTS The Warrens and Day are owners of contiguous tracts of land located in St. Helena Parish, Louisiana. The Day property is bounded on the north, east and south by the Warren property. The Day property and its boundaries are shown on the 1984 Johnston survey, a copy of which is attached hereto as Appendix A. The Warrens operate a dairy farm. An oxidation pond was constructed by the Warrens for use in their dairy operations. This pond is shown on the northeast part of the 1984 Johnston survey. The pond contains animal wastes, detergents and other chemicals used in the dairy operations. This pond has overflowed on several occasions and caused damage to Day’s property- INJUNCTION (Assignment of Error 1) Day contends the trial court committed error by not issuing an injunction to stop the overflowing of the oxidation pond onto her property. The Warrens respond that a “lawful business cannot be abated as a nuisance unless it is operated in such ways as to give rise to serious and material discomfort and inconvenience to persons in close proximity thereto” and that Day has not proven that the Warrens have “gone outside the spectrum of generally accepted farming practices, therefore having no action against” them. The law applicable to this case is set forth in Rodrigue v. Copeland, 475 So.2d 1071, 1077-1078 (La.1985), as follows: OBLIGATIONS OF NEIGHBORHOOD (C.C. arts. 667-669) Owners of immovable property are restrained in the use of their property by certain obligations. These obligations in-elude the responsibilities imposed by articles 667-669 of the Civil Code: These obligations of vicinage are legal servitudes imposed on the owner of property. These provisions embody a balancing of rights and obligations associated with the ownership of immovables. As a general rule, the landowner is free to exercise his rights of ownership in any manner he sees fit. He may even use his property in ways which "... occasion some inconvenience to his neighbor.” However, his extensive rights do not allow him to do “real damage” to his neighbor. In determining whether an activity or work occasions real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances. This analysis requires consideration of factors such as the character of the neighborhood, the degree of the intrusion and the effect of the activity on the health and safety of the neighbors. In the past, this court has borrowed from the common law of nuisance in describing the type of conduct which violates the pronouncements embodied in C.C. 667-669. In Robichaux v. Huppenbauer, 258 La. 139, 150, 245 So.2d 385, 389 (1971), we considered whether a horse stable located in the City of New Orleans could be abated under C.C. 669. We stated the following test: “Thus noxious smells, rats, flies and noise may constitute an actionable nuisance although produced and carried on by a lawful business, where they result in material injury to neighboring property or interfere with its comfortable use and enjoyment by persons of ordinary sensibilities.... (Emphasis added). In Hero Lands Co. v. Texaco Inc., 310 So.2d 93, 98 (La.1975), we recognized that the prohibitions contained in C.C. 667-669 were not limited to the physical invasion of neighboring premises. According to the court: “... The damage may well be intrinsic in nature, a combination of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage.” (Citations omitted). Since plaintiffs seek injunctive relief, they must prove irreparable injury in addition to the necessary showing of real damage under C.C. 667-669. C.C.P. 3601; Salter v. B.W.S. Corp., Inc., 290 So.2d 821 (La.1974); Hilliard v. Shuff, 260 La. 384, 256 So.2d 127 (1972). See also A. Yiannopoulos, 2 Louisiana Civil Law Treatise, Property § 229, pp. 610-616 (1980); F. Stone, 12 Louisiana Civil Law Treatise, Tort Doctrine § 220-239, pp. 294-313 (1977); A. Yiannopoulos, Civil Responsibility in the Framework of Vici-nage: Articles 667-69 and 2315 of the Civil Code, 48 Tul.L.Rev. 195 (1974). La. Const, of 1974, art. I, § 4 provides, in pertinent part, as follows: Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power. (Emphasis added.) La.C.C. art. 477 provides as follows: Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law. (Emphasis added.) The overflow from the Warrens’ oxidation pond is a direct physical invasion of Day’s property. See, for example, Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604 (La.App. 1st Cir.1978), writ denied, 366 So.2d 575 (La.1979). The overflow from the Warrens’ oxidation pond has irreparably injured and will irreparably injure Day’s constitutional and statutory rights to control, use, enjoy and have exclusive authority over her property. Day is entitled to a permanent injunction to protect her property. Salter v. B.W.S. Corporation, Inc., 290 So.2d 821 (La.1974); Critney v. Goodyear Tire & Rubber Company, 353 So.2d 341 (La.App. 1st Cir.1977). This assignment of error has merit. TRANSFER OF OWNERSHIP OF DAMAGED PROPERTY FROM DAY TO THE WARRENS (SALVAGE) (Assignment of Error 2) Day contends the trial court committed error by ordering her to “transfer ownership of the property in question unto Rho-ney Warren for the payment of the sum of $9,000.00.” Day asserts this action by the trial court deprives her of her property without due process of law in violation of La. Const, of 1974, art. I, § 2. The law applicable for determining the quantum of damages to property is set forth in Carter v. Gulf States Utilities Company, 454 So.2d 817, 819-820 (La.App. 1st Cir.1984), as follows: In determining damages, the trier of fact is accorded much discretion, especially where the facts of the case preclude a precise computation of dam-ages_ No mechanical rule of determining damages is to be applied; the quantum in each case must be determined considering the facts and circumstances of that case.... Although trial judges are granted great discretion in determining damage awards, these awards must be made in accordance with law.... The proper goal of a damage award is to restore the plaintiff, as closely as possible, to the position which he would have occupied had the accident never occurred.... Generally, three approaches have been followed by the Louisiana courts in arriving at the amount of damages to property; (1) the cost of restoration if the thing damaged can be adequately repaired; (2) the difference in value prior to and following the damage; or (3) the cost of replacement new, less reasonable depreciation, if the value before and after the damage cannot be reasonably determined, or if the cost of the repairs exceeds the value of the thing damaged. Where an automobile has been totally destroyed, the proper measure of damages is the value of the vehicle, less the salvage value, if any. Coleman v. Victor, 326 So.2d 344 (La.1976); Brown v. Morgan, 449 So.2d 606 (La.App. 1st Cir.1984). However, where land has been rendered useless, the proper measure of damages is the lesser of either the market value of the property and severance damages minus any residual value or the cost of restoration of the property to its condition prior to the damage. Matherne v. Terrebonne Parish Police Jury, 462 So.2d 274 (La.App. 1st Cir.1984), writ denied, 463 So.2d 1321 (La. 1985). When land has been rendered useless, the cost of restoration exceeds the value of the land and no residual value has been proven, the owner of the damaged land is entitled to recover the market value of the land in damages. Matherne, 462 So.2d at 280-281; Ewell, 364 So.2d at 608-609. We have found no authority, and none has been cited to us, which would authorize a court to order the transfer of the ownership of property to a tort-feasor where the tort-feasor has paid the victim the full value of the property damaged. Payment for damages for a tort is not equivalent to paying for the value of a thing in a sale. Ownership of property can only be acquired by inheritance, the effect of an obligation or by operation of law (such as expropriation). La.C.C. art. 870. La. Const, of 1974, art. I, § 4 provides, in pertinent part, as follows: Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. There has been no showing herein that the Warrens are authorized by law, inheritance or obligation to acquire ownership of Day’s property. If a tort-feasor were allowed to acquire ownership of property he damaged merely by paying the damage, we can envision situations where it would be in the interest of the tort-feasor to do so, thus, encouraging the tort-feasor to commit the tort. However, this would deprive the owner of his property without due process and would encourage a social policy that rewarded a tort-feasor. We will not condone such a policy. This assignment of error has merit. DECREE For the foregoing reasons, the judgments of the trial court in Day’s nuisance suit, which denied a permanent injunction to Day and ordered Day to transfer ownership of a portion of her property to the Warrens, are reversed. Day’s nuisance suit is remanded to the trial court for the issuance of a permanent injunction in favor of Day against the Warrens upon such terms and conditions as will effectively protect Day’s rights to control, use and enjoy her property. The Warrens are cast for the cost of this appeal. REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART. . Mr. Warren's first name is also spelled as "Ronnie”. . There has been no appeal taken from this judgment. . In his reasons for judgment, the trial judge indicated 9 acres were involved. . The trial court judgment and reasons for judgment are silent on the injunction issue. Silence in a judgment as to any part of a demand made in a litigation is construed as a rejection of that part of the claim. Hendrix v. Hendrix, 457 So.2d 815 (La.App. 1st Cir.1984). . The Warrens also assert the following argument: Louisiana Revised Statutes Article 3:3603 provides that no farm shall be a nuisance under Civil Code Article 669, or any other authority, if the farmer is following generally accepted agricultural practices. Article 3:3604 states there is a presumption that a farmer is following generally accepted farming practices unless proven otherwise. Appellant has not overcome this burden. Mr. Was-com, a dairy specialist for over 30 years stated that Mr. Warren was in full compliance with all generally accepted dairy practices. There was further testimony by surrounding dairy farmers that Appellee was an exceptional dairy farmer. In his reasons for judgment, the trial court judge held, as a matter of law, that the referenced presumption was rebuttable and held, as a matter of fact, that the evidence presented overcame the presumption. The Warrens have not appealed or answered the appeal and cannot now contest these rulings on appeal. La.C.C.P. art. 2133; Brewington v. Louisiana Department of Corrections, 447 So.2d 1184 (La.App. 3rd Cir.), writ denied, 449 So.2d 1348 (La.1984). . Mrs. Day does not contend on appeal that the oxidation pond is located on her property. However, a review of the 1984 Johnston survey indicates the boundary between the Warrens and Mrs. Day runs through the pond. Trespass is a tort actionable under La.C.C. art. 2315 and is defined as the unlawful physical invasion of the property or possession of another. LaRue v. Crown Zellerbach Corporation, 512 So.2d 862 (La.App. 1st Cir.), writ denied, 514 So.2d 1176 (La.1987). The placement of the oxidation pond partially on Days property without lawful authority is a trespass. It is also arguable that the overflow from the pond onto Day’s property was a trespass. Where a trespass is sought to be enjoined, there need not be a showing of damage or irreparable injury. La.C.C.P. art. 3663; Whitney National Bank of New Orleans v. Poydras Center Associates, 468 So.2d 1246 (La.App. 4th Cir. 1985); Adcock v. Marshall Exploration, Inc., 434 So.2d 471 (La.App. 2nd Cir.1983); Ryan v. Pekinto, 387 So.2d 1325 (La.App. 1st Cir.), writ denied, 394 So.2d 615 (La.1980). . Thus, the salvage value of immovable property is its residual value after the damage. . A person legally liable for damages (such as a collision or liability insurer) can enter into a conventional obligation with the owner of damaged property wherein the ownership of the damaged property is transferred to the person legally liable in exchange for payment of the total value of the property. In this way, the person legally liable will obtain ownership of the "salvage.”

In re Holliday, Russell; applying for supervisory/remedial writ; Parish of Orleans, Criminal District Court, Div. “C”, No. 315-960; the Court of Appeal, Fourth Circuit, No. 88-KW-0317. Granted. The district court is ordered to furnish relator a copy of his resentencing transcript of October 10, 1987.

In re McIntyre, Johnny; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. A, No. 46,207; to the Court of Appeal, Second Circuit, No. 48,-495-KH. Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

ROSEMARY LEDET, Judge. 11 This is a public bid dispute. From the trial court’s judgment denying its application for a preliminary injunction, A.P.E., Inc. appeals. For the reasons that follow, we reverse. FACTUAL AND PROCEDURAL BACKGROUND This case arises out of the City of New Orleans’ solicitation of public bids for New Orleans Police Department uniforms and related equipment (the “NOPD Uniforms Contract”). The bid was for a requirements contract — the bidders were required to commit to supply the requested uniform items, as required during the term of the contract, at a specific price. Although the initial bid invitation set the bid submission deadline as November 8, 2012, an addendum changed the deadline to December 4, 2012. A.P.E. and Signal 26, Inc., d/b/a Code 3 Supply (“Signal 26”), submitted the only two bids. After the bids were submitted, A.P.E. raised several questions | regarding Signal 26’s bid. Among the questions was whether Signal 26 had a disqualifying conflict of interest under New Orleans City Ordinance § 2-777, which provides that “[n]o city officer or employee shall have a financial interest in any contract with the city.” As explained below, the conflict, as A.P.E. communicated to the City in correspondence and e-mails, was that, at the time the bids were submitted, a shareholder of Signal 26, Rebekah Hoffacker, was married to a NOPD officer. On January 18, 2013, Ms. Hoffacker, sold her shares of Signal 26 stock to Rachel Hurst, the other co-owner of Signal 26, for $30,000. The sale was a credit sale; in exchange for the stock, Ms. Hoffacker received a promissory note for $30,000, which was payable in monthly installments of $2,500. |sOn February 21, 2013, the City notified Signal 26, by letter, that it was the successful bidder. The letter also stated that the award was subject to Signal 26 signing a formal contract with the City. On March 19, 2013, A.P.E. filed this suit for injunctive and other relief. In its petition, A.P.E. averred: • On or about December 7, 2012 plaintiff sent a letter to Mary Kay Kleinpeter-Zamora, Chief Procurement Officer for the City of New Orleans in which plaintiff informed the City one of the bidders, Code 3 of New Orleans, listed as one of its members, a person who was believed to be married to a New Orleans police officer. Furthermore, Code 3 of New Orleans also advertised in several online outlets and print media that “Code 3 is owned and operated by N.O.P.D. officers and/or their families” and that “Code 3 is owned by the family of a fellow 26” (police radio call number indicating a police officer). Plaintiff pointed out that this relationship appeared to violate the City’s Ordinance 2-777, “Prohibited Financial Interests.” • On or about January 22, 2013 plaintiff sent a letter to Mary Kay Kleinpeter-Zamora Chief Procurement Officer for the City of New Orleans ... pointing] out that there now appeared to be two names associated with the apparent low bidder, Signal 26, Inc. which submitted the bid and Code 3 Supply, which was identified on the non-collusion affidavit attached to the Signal 26[bid]. Code 3 Supply was not named on Attachment “C”, nor did it supply a Tax Clearance Form. • On or about January 23, 2013 plaintiff sent a letter to Mary Kay Kleinpeter-Zamora, Chief Procurement Officer for the City of New Orleans in which plaintiff reviewed the Tax Clearance Form submitted by Signal 26 which identified Rebekah Hoffacker as the person at Signal 26 attesting that all taxes had been paid. Upon information and belief, plaintiff is informed that Rebekah Hoffacker is married to Charles Hoffacker, who is currently believed to be a New Orleans police officer. This would appear to be in conflict with the City’s ordinance regarding doing business with City employees or their families, Sect. 2-777. |4* Shortly thereafter, the Louisiana Secretary of State’s corporation division revealed that Rebekah Hoffacker had resigned as an officer of Signal 26. • On or about February 19, 2013 plaintiff sent a ... letter to Mary Kay Kleinpeter-Zamora, Chief Procurement Officer for the City of New Orleans in which plaintiff provided a recap of the ... prior communications and the discrepancies in the Signal 26 bid. A.P.E. requested a preliminary injunction be issued enjoining the City from awarding the NOPD Uniform Contract. It further requested that its bid be declared the lowest responsive bidder on the NOPD Uniform Contract. Alternatively, A.P.E. requested that the City’s acceptance of a bid from Signal 26 — a bidder that had an apparent conflict under the City’s own code — be declared a nullity requiring a new bid. Following a hearing, the trial court, on June 6, 2013, rendered judgment finding that A.P.E. “failed to prove any violation of the Public Bid Law” and that it “failed to make the required showing that it is entitled to the relief sought and that it will likely prevail on the merits.” The trial court thus denied A.P.E.’s application for a preliminary injunction. This appeal followed. DISCUSSION A trial court has great discretion in deciding whether to grant or to deny a preliminary injunction; hence, a trial court’s denial of a preliminary injunction should not be overturned on appeal absent a clear abuse of the trial court’s great | .^discretion. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 00-1146, p. 3 (La.App. 4 Cir. 10/3/01), 798 So.2d 1167, 1171; HCNO Services, Inc. v. Secure Computing Systems, Inc., 96-1693, p. 8 (La.App. 4 Cir. 4/23/97), 693 So.2d 835, 841. This court in Moretco, Inc. v. Plaquemines Parish Council, 12-0430, pp. 6-7 (La.App. 4 Cir. 3/6/13), 112 So.3d 287, 290, summarized the applicable principles governing preliminary injunctions as follows: A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties pending trial on the merits. Sessions, Fishman & Nathan, L.L.P. v. Salas, 2004-1790 (La.App. 4 Cir. 5/25/05), 905 So.2d 373, 377. To prevail in the trial court on a petition for preliminary injunction, the petitioner is required to establish by prima facie evidence that: (1) it will suffer irreparable injury, loss, or damage if the injunction is not issued; (2) it is entitled to the relief sought; and (3) it will likely prevail on the merits of the case. Limousine Livery, Ltd. v. A Airport Limousine Serv., L.L.C, 2007-1379 (La.App. 4 Cir. 3/12/08), 980 So.2d 780, 783. A showing of irreparable injury is not required in cases where the conduct sought to be restrained is unlawful, such as when the conduct constitutes a direct violation of a prohibitory law. Asaro v. City of New Orleans, 2010-0572, p. 3 (La.App. 4 Cir. 12/22/10), 54 So.3d 1214, 1217, writ denied, 2011-0353 (La.4/1/11), 60 So.3d 1257. A.P.E. contends that it was not required to establish irreparable injury to obtain a preliminary injunction since Signal 26’s bid •violated two prohibitory laws: the Public Bid Law and New Orleans City Ordinance § 2-777. Both the Public Bid Law and the New Orleans City Ordinance § 2-777 are prohibitory laws. “Louisiana’s Public Bid Law, set forth in LSA-R.S. 38:2212 et seq., is a prohibitory law founded on public policy.” Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-0211, 04-0212, p. 6 (La.3/18/04), 867 So.2d 651, 656. Likewise, the New Orleans City Ordinance § 2-777, as A.P.E. points out, is a prohibitory law founded on public policy. See La. C.C. art. 7, cmt. (d) (noting that the term “prohibitory law” means “rules of public order” and “laws for the preservation of public order”). A contract in violation of a prohibitory law is an absolute nullity. Executone of Cent. Louisiana, Inc. v. Hospital Service Dist. No. 1 of Tangipahoa Parish, 99-2819, p. 8 (La.App. 1 Cir. 5/11/01), 798 So.2d 987, 993; La. C.C. art. 7; La. C.C. art. 2030. Although A.P.E. contends that Signal 26 violated the Public Bid Law in numerous respects, we find the issue of whether there was a violation of New Orleans City Ordinance § 2-777 dispositive. A.P.E. emphasizes that the City has acknowledged that Ms. Hoffacker’s ownership interest in Signal 26 at the time the bid was submitted was a prohibited financial interest in violation of New Orleans City Ordinance § 2-777. At the hearing on the preliminary injunction, the City acknowledged that when A.P.E. alerted it to the potential financial conflict, it informed Signal 26 of the conflict and instructed Signal 26 that it had to resolve the conflict before the bid was awarded or it would not be awarded the bid. Likewise, the City’s procurement officer, Ms. Kleinpeter-Za-mora, attested in her affidavit that: Prior to the bid award, my office received information from A.P.E., Inc. that Signal 26 was owned by the family of a police officer. Upon investigation, my office determined that Rebekah Hoffacker, a Signal 26 minority shareholder, was married to an NOPD officer. When informed of the financial conflict, Ms. Hoffacker sold |7her minority share of Signal 26 stock. Because the conflict was resolved prior to the bid award, it is my understanding that no violation occurred. The City’s position is thus that the sale of the stock before the bid was awarded eliminated any financial conflict of interest under New Orleans City Ordinance § 2-777. Stated otherwise, the City’s position is that given the language of the ordinance — providing that a violation occurs when a City employee gains a financial benefit in connection with a City “contract” — it follows that “[ijmplicitly, there is no violation if such a conflict is removed prior to the execution of the contract, as it was here.” We disagree. Agreeing with A.P.E., we find the relevant time to examine the bidder’s qualifications is at the time the bid is submitted. See A.M.E. Disaster Recovery Services, Inc. v. St. John Baptist Parish School Bd., 10-500, p. 8 (La.App. 5 Cir. 11/23/10), 54 So.3d 719, 723 (affirming disqualification of bidder and noting that subsequent events did “not diminish the grounds for disqualification which existed at the time the bid was submitted”); see also Grady Crawford Const., Inc. v. City of Baton Rouge, 11-0377, p. 10 (La.App. 1 Cir. 8/17/11), 76 So.3d 513, 520 (holding that bidder’s failure to have a contractor’s license at the time the bid was submitted disqualified bidder despite the reinstatement of bidder’s license before the bid was awarded). Given this principle, the legal issue to be decided is whether Ms. Hoffacker’s ownership of stock in Signal 26 at the time the bid was submitted falls within the scope of the prohibited financial interest under New Orleans City Ordinance § 2-777. This court reviews legal issues using a de novo standard of review. See 2400 Canal, LLC v. Board of Sup’rs of Louisiana State University Agr. and Mechanical College, 12-0220-0222, p. 5 (La.App. 4 Cir. 11/7/12), 105 So.3d 819, 824. “When |8considering legal issues, the appellate court assigns no special weight to the trial court and, instead, conducts a de novo review of questions of law and renders judgment on the record.” 2400 Canal, 12-0220 at p. 5, 105 So.3d at 824 (quoting Roger A. Stetter, LA. PRAC. CIV. APP. § 10:53 (2011 ed.)). Resolution of the legal issue presented in this case turns on the meaning of the term “contract” as used in New Orleans City Ordinance § 2-777. As noted, the City’s position is that the term refers to an executed, completed contract. Although there is no Louisiana jurisprudence on point, a similar contention — that a completed contractual agreement was required for a conflict of interest violation — was rejected by the court in People v. Savaiano, 66 Ill.2d 7, 14-15, 3 Ill.Dec. 836, 359 N.E.2d 475, 479 (1976). In the Savaiano case, the conflict of interest provision at issue was a criminal statute outlawing a public official from having a prohibited financial interest. Rejecting the defendant’s argument that a completed contract was an essential element of the offense, the court reasoned as follows: To claim that appellant’s violation of the law does not occur until a contract has been entered into would emaciate the statute and vitiate its legislative purpose. The law would no longer effectively deter a self-dealing official, in the capacity of his position, from engaging in negotiations with other parties for the purpose of purchasing property in which he also had a personal interest. This would permit that official to sell his interest at a time when the | amaking of the contract had advanced to a point where it assuredly would be executed. Since he could personally guarantee to the prospective buyer that the contract would be executed, both could profit from the transaction. The purpose of all statutory construction is to give the law the effect that was intended by the legislation. Savaiano, 66 Ill.2d 7, 14-15, 3 Ill.Dec. 836, 359 N.E.2d 475, 479 (1976). Likewise, the strict construction of New Orleans City Ordinance § 2-777 advanced by the City in this case is inconsistent with the purpose of the ordinance, which is a code of ethics provision. The purpose of a code of ethics provision is “to prevent public officers and employees from becoming involved in conflicts of interest. It is not merely wrongdoing, but even the potential therefor, that the Code seeks to avoid.” In re Sea Shell, Inc., 509 So.2d 90, 91 (La.App. 1st Cir.1987) (affirming a finding that a corporation wholly owned by a parish president’s siblings violated the ethics code by entering into a contract with the parish to supply shell). To advance this purpose, conflict of interest provisions generally have been strictly construed. 3 Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS § 12:173.22 (3rd ed.2012) (“McQuillin ”) (noting that “[t]he general rule is that there should be strict enforcement of conflict of interest statutes so as to provide a strong disincentive for officers who might be tempted to take personal advantage of their public offices.”) For these reasons, we find the City’s argument that the word “contract” in New Orleans City Ordinance § 2-777 should be construed to refer solely to a completed contractual agreement unpersuasive. The word “contract,” as used in the ordinance, was not intended in the contract law sense; rather, it was intended to have a broader meaning, encompassing the solicitation of bids. Our finding is buttressed by the following commentary: hnFor there to be a conflict over a contract, there must first be a contract. ... The meaning of a contract “made” by a municipal officer within the intendment of a statute prohibiting city officers from being financially interested in contracts made by them in their official capacity encompasses preliminary discussions, negotiations, compromises, reasoning, planning, drawing of plans and specifications and the solicitation of bids. McQuillin, supra (citing MillBrae Ass’n for Residential Survival v. City of Millbrae, 262 Cal.App.2d 222, 237, 69 Cal.Rptr. 251, 262 (1968)); see also Stigall v. City of Taft, 58 Cal.2d 565, 571, 375 P.2d 289, 292, 25 Cal.Rptr. 441, 444 (1962) (rejecting a narrow and technical interpretation of the word “made” and construing its statutory meaning “to encompass the planning, preliminary discussions, compromises, drawing of plans and specifications and solicitation of bids”). Summarizing, we reject the City’s invitation to narrowly construe the term “contract” in New Orleans City Ordinance § 2-777 as cabined to a completed contractual agreement. We construe the term “contract” in the ■ ordinance as encompassing the submission of bids. Therefore, we find that Signal 26 was disqualified from bidding on the NOPD Uniform Contract. We further find that Signal 26’s bid was an absolute nullity and that the contract must be rebid. For these reasons, we find the trial court erred in failing to grant the alternative relief requested by A.P.E. — a declaration that Signal 26’s bid was a nullity and that the contract must be rebid. DECREE For the forgoing reasons, the judgment of the trial court is reversed. | REVERSED. . The actual bidder was Signal 26, Inc.; however, the bid was awarded to "Signal 26, Inc. (Code 3 Supply).” Signal 26 is also referred to in the record as "Signal 26, d/b/a Code 3 Supply.” In its petition, A.P.E. alleged that Signal 26 used two different names — Signal 26 and Code 3 — both of which appear to be registered with the Louisiana Secretary of State. It further alleged that the bid was submitted under one business name and supporting affidavits were submitted under another name. Given our finding that Signal 26, Inc. was disqualified from bidding, we find it unnecessary to address the distinction between the two entities — Signal 26, Inc. and Code 3 Supply. . Although A.P.E. also raised several alleged errors in Signal 26’s bid, we limit our analysis to the disqualifying conflict of interest under New Orleans Municipal Code Section 2-777, which we find dispositive. .New Orleans Municipal Code Section 2-777 provides in full: No city officer or employee shall have a financial interest in any contract with the city, and no contract for professional or other services shall be awarded on the basis of fee kickbacks. For purposes of this section, the word "contract” shall include remunerative contracts to provide goods or services to the city or for public work and shall not include: (1) A contract with the city which a city official or employee is required to enter in order to receive state or federally-funded grants, loans or other public assistance, or (2) A sale of abandoned property, as defined by R.S. 33:4720.12(1), to a city employee, when said sale is approved by the mayor, the director of the department by which the employee is employed, and the city attorney, and when such sale is for the purpose of rehabilitation. . Signal 26's bid totaled $4,801.94; A.P.E.’s bid totaled $6 076.59. . On February 18, 2013, A.P.E. sent Ms. Kleinpeter-Zamora an e-mail reiterating its concerns — that "the Signal 26 or Code 3’s submission (dependent upon which piece of paper in their submission you chose) contained numerous discrepancies” and that the owner of both of those entities are “family members of City of New Orleans employees, and to award the contract to them would be a direct violation of the City of New Orleans ordinances.” . On April 2, 2013, the trial court issued an order requiring that the request for a preliminary injunction be heard on verified pleadings and affidavits without live testimony. On May 7, 2013, a hearing was held on A.P.E.'s application for preliminary injunction and motion to permit live testimony. On May 31, 2013, another hearing was held on A.P.E.’s motion to supplement the record. Pursuant to La. C.C.P. art. 3609, the trial court denied A.P.E.’s motion to permit live testimony at the preliminary injunction hearing. The trial court also denied A.P.E.’s motion to supplement the record, but the court allowed A.P.E. to proffer the excluded evidence. . La. C.C. art. 7 provides that “[pjersons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.” La. C.C. art. 7. . La. C.C. Art. 2030 provides: A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed. Absolute nullity may be invoked by any person or may be declared by the court on its own initiative. . At oral argument before this court, the City's attorney acknowledged that New Orleans City Ordinance § 2-777 is a conflict of interest provision. . The criminal statute at issue provided: No person holding any office, either by election or appointment under the laws or constitution of this state, may be in any manner interested, either directly or indi- rectly, in his own name or in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. People v. Savaiano, 66 Ill.2d 7, 10, 359 N.E.2d 475, 477, 3 Ill.Dec. 836, 838 (1976). . Given this finding, it is unnecessary for us to address the alternative issue A.P.E. raises of whether the credit sale of the stock was sufficient to divest Ms. Hoffacker of her financial interest in Signal 26 or whether it merely transformed her into a “creditor,” which would also be a prohibited financial interest.

In re Morehouse Par. Pol. Jury; applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 19407-CA; Parish of Morehouse, 4th Judicial District Court, Div. “E”, No. 86142. Prior report: La.App., 521 So.2d 827. Granted. The judgment of the Court of Appeal is reversed and the judgment of the district court is reinstated for the reasons given by the district judge. LEMMON, J., would simply grant the writ.

In re First National Bank; applying for supervisory and/or remedial writs; Parish of St. Tammany, 22nd Judicial District Court, Div. “F”, No. 8714404; to the Court of Appeal, First Circuit, No. CW88 0412. Denied.

WILLIAM A. CULPEPPER, Retired, Judge Pro Tern. This is an expropriation case. The trial court awarded $248,321 compensation to the defendants. The plaintiff appeals this judgment. FACTS On February 3, 1983 the State of Louisiana expropriated 3.57 acres from a wooded rural homesite of 7.976 acres on Louisiana Highway 6, approximately 3.5 miles west of Natchitoches. The expropriation was necessary for the 1-49 project. Included within the taking was a well-kept, 11-year-old single family, single story brick veneer home. The home had approximately 2900 square feet of heated area and approximately 3500 square feet under roof. Access to the remaining property was cut off by the expropriation. Trial was held on March 4,1986 to determine the amount of compensation due the landowners. The witnesses were real estate appraisers and an engineer. The validity of the taking was not at issue. The plaintiff’s expert testified to a total compensation due of $111,484 for the value of the land and improvements taken (using a cost approach with a deduction for depreciation for the improvements). The defendants’ experts testified to separate total compensations of $171,141 (Randy LaCaze) and $188,111 (Stacy Williams) for the values of the land and improvements taken (using a market value basis for the improvements), severance damages to the remaining land and costs of moving. The defendants also introduced uncontradicted expert testimony by an engineer, E.J. Geir-ing III, who valued the cost of providing a commercial, two-lane, 34-foot wide driveway to provide access to the remaining property at $60,210. The trial court awarded the defendants $248,321 ($188,111 plus $60,210), although they had only prayed for $188,111 in their reconventional demand. The plaintiff appeals this judgment. ASSIGNMENT OF ERROR The trial judge erred in awarding an amount in excess of the reconventional demand and in excess of the highest testimony. APPLICABLE LAW The plaintiff contends the trial court should not have awarded $60,210 to defendants for constructing access to their property because they did not pray for it in their reconventional demand. LSA-C.C.P. art. 862 states: “Art. 862. Relief granted under pleadings; sufficiency of prayer “Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.” This article eliminates the necessity for general and equitable relief, as it automatically performs the function of such prayer. LSA-C.C.P. art. 862, Official Revision Comments, Paragraph (a). See also McBride v. Hebert, 490 So.2d 454 (La.App. 3d Cir.1986), Land & Offshore Co. v. Martin, 469 So.2d 1177 (La.App. 3d Cir.1985); Pri meaux v. Bennett Homes, Inc., 339 So.2d 1251 (La.App. 1st Cir.1976). Uncontradict-ed expert testimony was introduced at trial by the defendants as to the need to provide access to their remaining property and the cost of doing so. The plaintiff did not object to the introduction of this evidence. The defendants’ other experts also referred to the need for access and the cost of providing it. The trial court could therefore include it in the compensation awarded to the defendants, even though they did not specifically pray for it, under LSA-C.C.P. art. 862. The plaintiff also contends that the fee of the expert witness on the cost of providing new access should be disallowed because it was of no usefulness in determining the award. Since it was used in determining the award, we will affirm the trial court’s award. Finally, the plaintiff contends the trial court should have awarded a sum no larger than the amount needed to purchase a used home and land comparable to the home and land expropriated, and that there is no justification for forcing the State to pay for a new home for the defendants. This would necessitate reliance on the appraisal of the State’s expert witness, rather than those of the defendants’ experts. The evaluation of and weight given to the testimony of expert witnesses by the trial court as the factual basis for its conclusions will not be disturbed on review absent a showing of manifest error. State, through Dept. of Highways v. Wilson, 372 So.2d 632 (La.App. 1st Cir.1979). We also find that defendants’ experts based their valuations on market value, rather than on a replacement cost approach, as plaintiff contends. However, we find the trial court did make an error in adding $60,210 to the $188,111 figure testified to by Williams. Both of the landowners’ appraisers considered the enhanced value of the remaining 4.406 acres after the taking, and the cost of providing access to this remainder, in reaching their estimates of severance damages. Although they used somewhat different methods, their conclusions as to severance damages are very close, $17,869 by Williams and $15,360 by LaCaze. In his appraisal report, Williams stated: The 4.406 Remaining Acres [sic] are beautiful and enhanced the Bernard home site, [sic] but when 1-49 is completed, it will be so isolated by the limited access portion of the highway, and the major problem of increased traffic on Louisiana Highway No. 6 adjacent to the interstate, that its value will be greatly reduced without a Service Road [sic], which appears to be out of the question. For these reasons the undersigned has determined that their useage [sic] will be reduced by fifty (50%) percent, and this amount has been calculated as “SEVERANCE DAMAGES.” Williams estimated total compensation as follows: Market value of residence and improvements $138,785.00 Expropriated acreage — 3.58 acres x $8,111.24 per acre 28,957.00 Severance damage for remaining acreage 4.406 acres X $8,111.24 per acre x 50% 17,869.00 Cost of moving twice 2,500.00 Total Just Compensation $188,111.00 LaCaze estimated total compensation as follows: Market value of residence, improvements and expropriated acreage $155, 781.00 Severance damages — 60% 15,360.00 Total Just Compensation $171,141.00 LaCaze testified clearly that he reached his severance damages figure by taking into consideration the cost of providing access to the remaining acreage ($60,210) and the enhanced value of this acreage with access ($26,920 enhancement): “Therefore, for defendant to experience the enhancement calculated in the previous section of $26,920.00, an expenditure of $60,210.00 would be required. Defendant must then be compensated by the difference between the cost of access and the enhancement to defendant’s property. This indicates a total of $33,-290.00 due defendant to make him whole. Defendant could then install the access at an out of pocket cost of $26,920.00 and considering that the remainder in the before status was contributing $25,600.00 to the whole, defendant would have in vested in the property what the fair market value indicated or $52,520.00. * * # * * # “If you consider the $33,290.00 which is demonstrated by the cost of putting access into the remaining property as a dimunition in value to the remaining property, a percentage discount can be calculated for comparison purposes. The $33,290.00 represents more than the total value of the remainder as it contributed to the whole or $25,600.00. Due to this it is likely that a discount of at least sixty to seventy percent would be indicated in the case of the subject remainder. Therefore, severance damage in the amount of 60% or $15,360.00 is judged to be applicable to the remaining parcel. 4.04 acres before taking.$25,600.00 4.04 acres after taking_ 10,240.00 Severance Damages to Remainder . — . $15,360.00” Therefore, by adding $60,210 to the total compensation, the trial court granted a double recovery to defendants, since the $60,210 cost of access was already calculated into the total compensation through severance damages. We find no abuse of the trial court’s great discretion in choosing to follow Williams’, rather than LaCaze’s estimate of total compensation, in making the award, although Williams’ figure is higher. See Reck v. Stevens, 373 So.2d 498 (La.1979). DECREE For the reasons assigned, the judgment appealed is amended to reduce the just compensation awarded by the sum of $60,-210. Otherwise the judgment is affirmed. Costs of appeal are assessed to defendants-appellees. AFFIRMED, AS AMENDED.

DOMENGEAUX, Judge. Ray L. Moore, Jr. and twenty other Welsh, Louisiana area farmers commenced this proceeding against the Thornwell Warehouse Association (Thornwell). The plaintiffs alleged that Thornwell, an incorporated cooperative marketing association, had improperly graded the soybeans they delivered to the defendant during the 1984 crop year. The plaintiffs sought money judgments contending that Thornwell’s improper grading reduced their per bushel price. The Trial Court rendered judgment in favor of the plaintiffs concluding that Thornwell had improperly graded the plaintiffs’ soybeans. A precise measure of damages was impossible to ascertain because the plaintiffs’ beans were commingled and resold shortly after delivery. The Court, however, awarded damages based upon a formula involving randomly selected probe samples which had been graded by both Thornwell and the State. Having thoroughly reviewed the record and researched the relevant law, we conclude that the judgment of the District Court should be affirmed. The “Reasons For Judgment” of the trial judge are quite thorough and we, there fore, adopt them, with minor modifications, as our opinion. REASONS FOR JUDGMENT In this suit Ray L. Moore, Jr. and others (plaintiffs) seek a money judgment against Thomwell Warehouse Association (defendant or Thomwell) for the alleged improper grading of their 1984 beans processed through the Thomwell facility at Welsh, Louisiana. In 1984, and before the 1984 soybean crop-year, Thomwell purchased the Ameri-can Rice Growers facility located at Welsh, Louisiana. Plaintiffs are former members or patrons of American Rice Growers of Welsh. Plaintiff, Ray L. Moore, Jr., was the President of American Rice Growers of Welsh. In addition to the Welsh facility, Thomwell also has facilities at Thomwell and Iowa, Louisiana. Plaintiffs brought their beans to the Welsh facility where they were deposited and sold in the following manner. The beans arrive by truck. The load is weighed and a sample is taken by probe. The farmer is given a scale ticket which reflects the weight and moisture of the beans. The sample, however, is graded at the Thom-well facility some ten or twelve miles away. The grade of the sample is not available to the farmer until several days later. The beans are then dumped and commingled with other beans at the Welsh facility. After the beans are dried and processed they are transported to the port at Lake Charles for sale on the open market. The beans are regraded upon arrival at the port. The grade given by Thomwell is known as the incoming grade and the grade given by the port as known as the outgoing grade. Plaintiffs were paid based on the incoming Thomwell grade and Thomwell was paid based on the outgoing port grade. Therefore, the grade given to the soybeans is crucial in determining how much the farmer ultimately receives for his beans. The issues to be resolved by the Court are: (1) whether Thomwell used the proper standards in grading plaintiffs’ beans; and (2) the amount of damages due plaintiffs if the Court finds that Thomwell is liable to plaintiffs for improperly grading their beans. THORNWELL’S GRADING PROCEDURES Plaintiff Moore testified that he delivered his first beans to the Welsh facility on October 30, 1984 and received his grading certificates some eight (8) days later, whereupon he called Walter Dugas, Thom-well’s manager, complaining about a high damage factor. Dugas contacted Aaron Hebert, the State Grader in the area, who came to Thomwell on or about November 12, 1984. Eleven (11) samples chosen at random by employees of Thomwell were submitted to Hebert for regrading. Ironically, nine (9) of these eleven (11) samples were beans which had been delivered by plaintiff Moore. These nine (9) samples belonging to Moore were regraded by the State and the differences in the gradea are shown as follows: TICKET THORNWELL DAMAGE GRADE STATE DAMAGE GRADE 59296 47.3% 11.9% 59298 40.5% 8.8% 59299 43.1% 11.9% 59301 40.0% 9.2% 59305 36.5% 10.0% 59307 46.1% 13.2% 39317 46.0% 10.3% 39323 17.8% 4.9% 59330 16.3% 4.7% While it is normal to have some slight differences in grades due to interpretative elements, it is obvious that the large discrepancy in grades in this case did not result from differing interpretations, but rather, from the use of different standards. Although there are various deductions in determining the quality of the beans and what price the farmer receives for his beans, the only factor at issue in this case is the deduction for what is referred to as “field damage” and the controversy centers around the proper standard for molded or mildewed beans. The testimony shows that the Thomwell graders and the State Grader used different standards in computing this deduction. Thomwell considered the bean a damaged bean if the seed coat had any damage from mold or mildew. The State grader considered the bean damaged only if the seed coat was 75% or 80% covered. Prior to 1985, Louisiana Statutory Law did not provide any standards for sampling and grading grain. By Acts 1985, No. 793 R.S. 3:3414.2 (redesignated as R.S. 3:3414.-3) was adopted. The statute provides that the Louisiana Agricultural Commodities Commission shall, by rule, adopt standards for sampling and grading grain. The standards are to be consistent with the standards adopted by the United States Department of Agriculture.... Although R.S. 3:3414.3 was not in effect in 1984 and therefore does not govern this case, the evidence shows that prior to 1985 the State used the standards developed by the United States Department of Agriculture. These standards were set forth in the official grain inspection manual of the Federal Grain Inspection Service. Corinna Dugas, the wife of Thornwell manager Walter Dugas and a Thornwell grader who had been grading beans for twenty-three years, testified that throughout her many years as a grader she had attended several seminars sponsored by the State during which grading standards were reviewed. She testified, however, that it was not until after Hebert, the State grain inspector, visited Thornwell in November of 1984 and reviewed Thornwell’s grading procedures, that she learned there was a difference between Thornwell’s grading criteria and the State’s. It is the position of Thornwell that during the 1984 crop year there was a change in the interpretation of soybean field damage and that its graders did not learn of this change until after Hebert had spoken with them in November. Plaintiffs, on the other hand, contended that there was no change in the interpretation of the standards during the 1984 crop year and that the same standards had been in effect for many years. The plaintiffs argue that Thornwell simply used an incorrect standard. The plaintiffs presented the testimony of Hebert and his immediate supervisor, Wendell Smith, Chief Grain Inspector for the Louisiana Department of Agriculture. Hebert had been a licensed Federal Grain Inspector since 1978. He testified that the State used the standards adopted by the United States Department of Agriculture in grading the grain and that these standards were set forth in the official grain inspection manual which was revised from time to time by the Federal Grain Inspection Service. Hebert testified that there had been no change in the interpretation during 1984 and that the same interpretation criteria had been used since 1980. Smith stated that he had been a licensed Federal Grain Inspector since 1974. He testified that the State used the federal standards and that no changes in the interpretation standards had been made during 1984 or any previous year. Defendant presented the testimony of Diana Breaux and Elliott Higginbotham, in addition to that of Corinna Dugas which was previously discussed. Breaux testified that she had been employed for the last 6 years by Consolidated Grain and Barge as a grain inspector and that she was a licensed Federal Grain Inspector. This witness was very nervous and gave confusing testimony. She stated that since her licensing as a grader, she had used the 80% standard in determining bean damage. She testified that on October 24 or October 25 Hebert told her that any mold or mildew on a bean would result in it being considered damaged. She stated that on October 29 Hebert returned and told her that as the result of a meeting in Alexandria it had been determined that the “any” mold or mildew standard was too harsh and that she should return to the 80% standard. When questioned by the Court she was positive in her testimony that prior to October 24 she was using the 80% standard, a standard she had been using since she was licensed and that the change on October 24 was to the harsher standard (any mold). This standard, however, was only in effect for four or five days until October 29, when she was instructed to return to the 80% standard. If anything, this testimony substantiates the position of plaintiffs that the correct interpretation of the standards was 80% and not any mold as used by Thom-well. Higginbotham testified that he had been employed as vice-president and manager of the Consolidated Grain and Barge facility at Mermentau since 1978. He was also President of the Louisiana Grain and Feed Association. He stated that there were problems in grading the 1984 soybean crop due to heavy rains. Higginbotham further testified that Hebert’s office and his graders work closely together. He testified that on October 29 his graders told him that Hebert said to use the 80% standard rather than the any mold or mildew standard. Higginbotham testified that the any mold or mildew standard was the standard he had been taught as a grader. Other evidence which the Court deems relevant in resolving the issue of whether there was a change in the interpretation of the way soybean field damage was graded during the 1984 crop year is the testimony of plaintiff Ray L. Moore. Moore testified that he delivered some of his beans from rented property to another grain facility and received a much lower grade on these beans than he received at Thomwell. The Court also closely scrutinized the evidence demonstrating the considerable differences in the incoming Thomwell grade versus the outgoing port grades, differences which cannot satisfactorily be explained away except that Thomwell was using a different standard from the port. Blending would not account for large discrepancies in the grades. After a careful review of the testimony and exhibits introduced at trial, the Court concludes that the evidence preponderates that there was no change in the interpretation of soybean field damage during the 1984 crop year. Thomwell was using an improper standard in grading plaintiffs’ beans and is, therefore, liable to plaintiffs for damages. DAMAGES Defendant argues that even if liability is established the Court cannot allow plaintiffs to recover since damages must be proven with reasonable certainty as damages which are purely conjectural should not be allowed. Defendant contends the plaintiffs are attempting to recover speculative damages since the individual grades of each plaintiff are not available and the individual beans have been commingled. The law, however, is well-settled, as pointed out by the plaintiffs’ counsel in brief. When there is a legal right to recover damages but the amount cannot be exactly estimated, the courts have reasonable discretion to assess damages based upon all the facts and circumstances of the particular case. A plaintiffs demand should not be rejected merely because he cannot establish with precision the amount suffered. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971). Moreover, under art. 1934 (3) of the Louisiana Civil Code, in effect prior to 1985, when damages are insusceptible of precise measurement much discretion is left to the Court for the reasonable assessment of those damages. Plaintiffs submit that in this case we have the eleven samples setting forth the differences between the Thomwell grade and the State grade. Plaintiffs also note that we have the incoming Thomwell grade and the outgoing port grade which can be used by the Court in reasonably assessing damages, although the beans have been commingled. In brief, counsel for plaintiffs suggest to the Court three formulas which the Court may use in determining damages. Plaintiffs introduced into evidence exhibits for each plaintiff which show a figure labeled “Total TW Damage Deduction” which refers only to the damage deduction and excludes all other deductions. By multiplying each formula by the damage deduction, the Court can arrive at the damages due each plaintiff. Formula 1 suggests a 95.2% figure. This figure is arrived at by using the incoming and outgoing overall damage factor accorded the beans from the Welsh facility. Thomwell’s grade of the Welsh beans was 11.99% resulting in a $.42 deduction. The port grade was 2.25% resulting in a $.02 deduction. The difference between $.42 and $.02 is $.40, and $.40 divided by $.42 is 95.2%. This formula demonstrates that the damage deduction by Thomwell was 95.2% more than it should have been. Formula 2 suggests a 86.1% figure. This figure comes from the nine (9) Ray Moore samples and the dollar figure used for each load. For example, ticket 59296 shows that Thomwell deducted $2.55 and the State deducted $.42, which would give an excess factor of $2.55 minus $.042, or $2.13. When $2.13 is divided by $2.55 the result is 83.5%. By averaging the percentages shown on the nine (9) samples, the overall average percentage is 86.1%. Computed this way the damage deduction by Thorn-well was 86.1% more than it should have been. Formula 3 suggests an 81% figure. This figure is derived by using Walter Dugas’ testimony in court that the Thomwell grade of the Welsh facility was 11.94% whereas the port grade of the Welsh facility was 5.19%. The Thomwell deduction was $.42 and the port deduction was $.08 or a difference of $.42 minus $.08, or $.34 when $.34 is divided by $.42 the results is 81%. The Court finds that Formula 2 should be used in computing damages. Formulas 1 and 3 take into consideration the blend factor which would be inappropriate as the farmer is only entitled to be paid for his individual beans. He is not entitled to be paid after the beans are commingled with other beans which might lower his individual damage figure. There is nothing illegal or immoral with the grain dealer making a profit on the blend provided the proper grade standards are applied by the grain dealer and the port to the beans. Formula 2 does not take into consideration any blend, but arrives at a figure which shows the average difference between the improper Thomwell grade and the proper state grade on the samples which were regraded. Using Formula 2 the Court arrives at the amount of damages due each plaintiff as follows: RAY L. MOORE, JR. $3,951.78 ROBERT A. HEBERT 3,235.77 ROBERT C. HEBERT 242.49 RICHARD G. BENOIT 3,847.98 J.R. MECHE FARM 8,180.02 PARIS BROUSSARD 381.57 TROY ROMERO 395.87 JOSEPH HOKE 2,495.66 JOHNNIE ROSE BLANCHARD 404.56 ROBERT DOUGHERTY 76.41 RICHARD MOORE 4,735.46 LOWELL MOORE 111.10 BRANDON MOORE 360.62 MRS. M.J. PITRE 145.67 ALBERT FINLEY 678.27 WAYNE PITRE 3,515.14 TRIMBLE CORPORATION 400.06 DAVID ALLEN HEBERT 1,270.90 PHILLIP W. HEBERT 1,270.90 MABEL DEROUEN 150.11 MARJORIE MARTIN and YOUNG KANG 246.93 Therefore, for the above and foregoing reasons, the judgment of the trial court in favor of the plaintiffs and against the defendant is affirmed. All costs of this appeal are assessed against the defendant-appellant. AFFIRMED.

In re Laprime, Rickey; applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. KA-7322; Parish of Orleans, Criminal District Court, Div. “H”, No. 313-987. Prior report: La.App., 521 So.2d 538. Denied.

GULOTTA, Chief Judge. In these consolidated tort suits by a bus passenger injured in two separate accidents, New Orleans Public Service, Inc. (NOPSI) appeals from adverse judgments in the sums of $111,595.00 for injuries sustained in the first accident and $10,333.50 from the second. We affirm. BACKGROUND On July 28,1980, Maureen Sickinger was a passenger on a lakebound NOPSI bus on Canal Street in New Orleans that stopped suddenly to avoid hitting an automobile attempting to make a left turn in front of the bus at an intersection near Claiborne Avenue. Although the bus driver managed to halt short of a collision, plaintiff, who was standing in the aisle of the bus and holding on to an overhead bar, was twisted by the force of the abrupt stop and sustained a whiplash injury of the neck. Mrs. Sickinger and her husband filed suit against NOPSI and its driver for this injury on October 12, 1980. While the first suit was pending, plaintiff was injured in a second accident on February 17,1982, when the NOPSI bus in which she was riding collided with a truck owned by Frito-Lay Co., Inc. at the intersection of Canal Street, City Park Avenue, and Canal Boulevard. At the time of impact, plaintiff was wearing a cervical collar and felt a “jolt” and immediate “spasms” as she sat in her seat. Plaintiffs’ second suit for damages was directed against NOPSI, Frito-Lay, Inc., and the drivers involved. The two suits were consolidated and tried on the merits. In separate judgments, the trial judge found NOPSI solely liable for $111,595.00 in damages from the first accident, and awarded further damages of $10,333.50 for the second accident, apportioning fault between Frito-Lay and NOPSI, in the second accident. In written reasons, he concluded that plaintiff had sustained severe and permanent injuries as a result of the first accident and that the second had caused some aggravation of those injuries. Appealing, NOPSI contends, on credibility grounds, that the trial court erred: 1) in finding that the first alleged accident even occurred; 2) in failing to apply the doctrine of “sudden emergency” to exonerate NOPSI if in fact the accident did happen; and 3) in failing to apportion the damages more equally between the two accidents. OCCURRENCE OF ACCIDENT We cannot say the trial judge was clearly wrong in concluding that plaintiff was injured in an accident on July 28,1980. Plaintiff testified that on this date she was a standing passenger in a NOPSI Canal Street bus traveling lakebound in the neutral ground lane reserved for bus traffic. According to plaintiff, when a traffic light turned green, the bus driver “floored” the accelerator, sounded her horn twice, but continued “at a fast pace” before she “slammed” on the brakes, stopping the bus abruptly at a U-turn intersection. Sicking-er then saw an automobile on the right side of the bus make a U-turn in front of the bus. Plaintiff stated that as a result of the abrupt stop she was thrown in a counterclockwise direction, heard her collar bone “snap”, and immediately experienced pain. Upon arriving home, she called NOPSI’s office to report that she had been injured. Plaintiffs testimony was largely corroborated by fellow passengers. According to Kathleen Babin, the bus was traveling at a faster than normal speed for “some distance” before the driver slammed on the brakes, throwing her into a seat and bruising her leg. Babin noticed that a car was stopped half-way into the path of the bus after making a left turn from the right side of the bus. She recalled that plaintiff told her that she had hurt her neck or twisted it badly. Another passenger, Joan Holub, likewise stated that the bus was “going fast” before it suddenly halted because a car was “coming across” the street. Joe Lee Waiters, the bus driver, had no knowledge of an accident occurring on or about 4:40 p.m. on the relevant date, and did not recall making a sudden stop to avoid a collision. The driver further testified that the bus has a device called a “governor”, which monitors the speed of the vehicle and prevents it from accelerating rapidly or reaching a high speed. Considering the evidence, we cannot say the judge erred, based on credibility, in accepting plaintiff’s testimony and rejecting the conflicting evidence. Sickinger’s testimony, essentially corroborated by her fellow passengers, sufficiently establishes that the NOPSI bus abruptly stopped to avoid colliding with a car turning into its path. Although no impact occurred, the evidence establishes that the plaintiff-passenger received a jarring injury as she attempted to maintain her balance during the sudden shift in movement of the bus. Accordingly, we reject NOPSI’s claim that no showing was made that plaintiff met with an accident on July 28, 1980. SUDDEN EMERGENCY NOPSI seeks to be exculpated from liability based on the doctrine of “sudden emergency” created by the turning of a “phantom” vehicle into the path of the bus. Common carriers are charged with the duty of exercising the highest degree of care to their passengers and are liable for the slightest negligence causing injury to them. Simms v. Estridge, 346 So.2d 300 (La.App. 4th Cir.1977). Although a carrier confronted with a “sudden emergency” through no fault or negligence of its own will not be held liable for damages or injuries sustained by its passengers, this doctrine does not apply where the bus driver creates the emergency situation by failing to reduce his speed to avoid an imminent collision with a turning vehicle. Simms v. Estridge, supra; Weir v. Gasper, 459 So.2d 655 (La.App. 4th Cir.1984), writ denied 462 So.2d 650 (La.1985). In written reasons for judgment, the trial judge stated in pertinent part: “NOPSI has failed to exonerate itself from liability for the July 28, 1980 accident. The driver saw the car and should have but did not slow her speed. When the car kept turning, the driver had to slam on her brakes throwing several of the standing passengers forward and injuring plaintiff.” Based on the testimony of plaintiff and her fellow passengers, we cannot say the trial judge erred. Because the bus driver caused the abrupt stop by traveling at an excessive speed under the circumstances, NOPSI cannot invoke the sudden emergency doctrine to exculpate itself from liability. See Simms v. Estridge, supra. CAUSATION A more difficult question is the apportionment of damages between two accidents. While the total Quantum of damages is not in dispute, NOPSI contends that the trial judge erred in attributing the greater part of plaintiffs damages to the first accident, instead of dividing the damages “more equally” between both incidents. Based on the medical testimony, however, we find no merit to this contention. In his reasons for judgment, the trial judge stated, in pertinent part: “It is difficult to assess plaintiffs damages. Dr. Dabazies saw her twice and referred her to Dr. King, an orthopedist at LSU specializing in spine surgery. He believes plaintiff sustained a disc rupture, without herniation, at the C5-6 level. As long as plaintiff can tolerate her pain, he does not feel surgery is indicated. Her symptoms have not improved. From May 1,1981 to August, 1983, she saw Dr. Sacks, a chiropractor whose testimony was worthless. From May 14, until July, 1984 she was treated by Dr. Beverly Vasconcellos who I found know-ledgable, accurate, fair and honest. By x-ray interpretation she identified three discreet ligament tears. These would not heal and would render plaintiff permanently susceptible to pain caused by the stress of ordinary life. Neither Dr. King who saw plaintiff before and after nor Dr. Vasconcellos who treated her after the second accident, were impressed with the effects of the second accident. Only plaintiff feels the second accident caused a severe aggravation. It should be noted Dr. King had diagnosed the ruptured disc before the second accident. Plaintiff will be awarded $100,000.00 for the first accident and $10,000.00 for the second. Special damages following the second accident will be ascribed between the two accidents by the same ratio. Practically all of the lost wages were due to the first accident, and none will be ascribed to the second. None of the experts attributed any substantial aggravation to the second accident, and NOPSI will be cast alone for their expert fees in the suit for the first accident.” These findings are consistent with the evidence presented. Dr. Beverly Vasconcellos, a chiropractor, testified she first saw plaintiff on May 14, 1984. According to this witness, plaintiff had suffered a post-traumatic cervical thoracic strain and chronic headaches. X-rays indicated a tearing of anterior ligaments of the spine. Dr. Vasconcellos indicated that when she saw plaintiff in May and June, 1984, she was essentially treating her for a temporary flare-up of a preexisting permanent condition. This witness was of the opinion that plaintiff’s permanent problem of ligament damage was compatible with the July 28, 1980 accident, and that the second accident did not substantially aggravate the preexisting condition since Sickinger had told her that she was “not particularly injured” at that time. Plaintiffs testimony was not inconsistent with Dr. Vasconcellos’s obversations. Mrs. Sickinger testified that she experienced pain in her face, head, neck, shoulders, and the length of her spine on the day of the first accident on July 28,1980. She sought medical help immediately, took prescribed muscle relaxants, underwent physical therapy, but had limited motion in her neck and was never free of pain, including migraine headaches. In the second accident on February 17, 1982, plaintiff immediately experienced spasms in her head, back, and shoulder blades. According to plaintiff, the second accident increased her pain substantially. The testimony of Dr. Eugene J. Daba-zies, an orthopedic surgeon, is supportive of a conclusion that plaintiff sustained a neck and back injury resulting from the 1980 accident. He first saw plaintiff on September 8, 1980, approximately six weeks after her first accident. Dr. Daba-zies felt that plaintiffs primary problem was a neck sprain, a soft tissue injury that would resolve itself. In later visits on October 20 and November 17, 1980, and on January 7, 1981 and February 9, 1981, after plaintiff continued to complain of headaches and pain in her back and shoulder, this physician referred her to another doctor. Dr. Andrew Graeme King, an orthopedic surgeon, saw plaintiff on referral from Dr. Dabazies on February 20,1981. According to Dr. King, Sickinger complained of persistent pain in her neck from the July 28, 1980 accident. An examination revealed pain in the mid-thoracic spine, muscle spasm, and a range of spinal motion that was three-fourths normal in all directions, with pain resulting from movements beyond that range. Furthermore, the lack of normal movement at the C5-6 articulation indicated some inflammation. The witness saw plaintiff subsequently on March 27, April 10, and August 21, 1981. During all of these visits plaintiff still experienced neck pain and headaches, as well as pain between her shoulders. In Dr. King’s opinion, plaintiff sustained a ruptured but not herniated cervical disc which was secondary to her whiplash type of injury. Although he later saw plaintiff on May 20, 1983, after her second accident on February 17,1982, her symptoms were similar to those she had manifested previously. Dr. King stated he was unaware of the second accident and did not reach any opinion as to which accident caused “how many symptoms”. When a plaintiff is injured in two separate accidents, the ultimate issue of medical causation is a factual question. McCreary v. Commercial Union Ins. Co., 372 So.2d 745 (La.App.4th Cir.1979). Based on the testimony of the treating physicians and the chiropractor, we conclude that the trial judge correctly attributed the greater measure of plaintiff’s damages to the first accident. Accordingly, the judgment is affirmed. AFFIRMED.

JASPER E. JONES, Judge. Defendant Herman Bonnett appeals his convictions of carnal knowledge of a juvenile, LSA-R.S. 14:80, and indecent behavior with a juvenile, LSA-R.S. 14:81, and defendant Wanda Bonnett appeals her conviction of indecent behavior with a juvenile. The defendants’ sentences were reviewed in a previous appeal, No. 18,538-KA, and affirmed by this court in an unpublished opinion handed down February 25, 1987, State v. Bonnett, 504 So.2d 184 (La.App. 2d Cir.1987) (table). We now affirm the defendants’ convictions. Procedural History The defendants were tried in a bench trial for one count each of carnal knowledge and indecent behavior with a juvenile. Herman was convicted of both offenses but Wanda was acquitted of carnal knowledge and convicted of indecent behavior. The defendants then appealed their sentences which were affirmed. On May 12, 1987, both defendants filed petitions for post conviction relief. Those petitions were denied by the district court but on defendants’ application for supervisory writs we ordered an evidentiary hearing on the issue of effectiveness of appellate counsel. See No. 19,339-KW. Following that hearing, the district judge granted an out of time appeal on the issue of sufficiency of the evidence. Defendants again applied for writs, see No. 19,544-KW, which were granted and the district court order limiting the scope of this appeal was vacated. This appeal followed. The defendants make four assignments of error. They contend: 1. They were convicted on insufficient evidence; 2. The trial court erred in accepting their waiver of trial by jury; 3. They received ineffective assistance of counsel at trial; and 4. They should receive a new trial on grounds of newly discovered evidence. Assignment #1 Appellants contend the evidence against them is insufficient to support the guilty verdicts rendered by the trial judge. The sufficiency of evidence, whether direct or circumstantial, is tested by whether the evidence, when viewed in the light most favorable to the prosecution, is sufficient to enable a rational trier of fact to find all of the elements of the crime proved beyond a reasonable doubt. State v. Willis, 446 So.2d 795 (La.App. 2d Cir.1984); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The victim, a thirteen year old girl, was a friend of defendants who occasionally stayed overnight with them in their home. The victim was approached by Wanda Bon-nett about having sex with her husband, Herman Bonnett. Later, Herman made advances to the victim while they were three wheeler riding. Subsequently, while the victim was spending the night with the Bonnetts, Herman came to her as she was sleeping, awakened her and had sexual intercourse with her as Wanda watched and masturbated. Herman then had sexual intercourse with Wanda while the victim watched. These sexual activities were repeated on six to eight subsequent occasions when the victim stayed overnight with the defendants. On one of these occasions the participants took photographs of their activities. The victim testified to all these facts at trial. The state introduced sixteen photographs of nude or partially nude persons engaged in sex acts. With one exception, the incriminating photographs did not show heads or faces of the participants and therefore the individuals photographed were difficult to identify. The victim testified she was present when all the photos were taken. She identified herself as the subject of some of the photos and the Bon-netts as subjects of some others and she was unsure who was depicted in some of the photos. One of the photos which depicted Herman and Wanda engaged in a sex act was recovered from the victim. The remaining photos were recovered from defendants during a search of their home. The investigating officer testified as to the ages of the defendants. The victim’s age and that she was unmarried were shown by testimony from the victim, her mother and by records from a family planning clinic which were offered by the defense. The defendants denied any sexual activity with the victim. They testified that all of the photos were taken by them, some by the use of a mechanical device. Wanda admitted taking one nude photo of the victim but she denied Herman was present and testified that it was taken so that the victim could give it to her boyfriend. This photo was seized from defendants’ home. Wanda contended the photo recovered from the victim had been removed from their home without permission. The defendants also contended the victim was sexually active with an uncle and that she accused them to protect him when her mother discovered evidence of her sexual activity. In this respect defendants rely heavily on a letter written by the victim which alludes to sex with others as well as Herman and which says she might be in love with her uncle. At trial the defendants demonstrated the operation of the mechanical device they say was used to take several of the photos. However, their testimony concerning this device was contrary to their statements to officers who executed the search warrant who were told they took the photos by operating the camera with their hands or feet. The defendants also attempted to contradict the victim’s testimony as to when the photos were taken by showing that Wanda was pregnant in one of the photos. Wanda had not been pregnant during the time frame that the victim testified the crimes charged occurred. The defense presented testimony by Dr. Michael Caire that he would “bet” the woman depicted in one of the photos was pregnant. However, on cross-examination Dr. Caire admitted that he could not say for certain that the subject of the photo was pregnant and that some of the indicators he relied on in reaching his conclusion that the subject was probably pregnant could be distorted by sexual excitement and the subject’s weight. Concerning Herman’s conviction for carnal knowledge of a juvenile, the evidence shows that Herman was 25 or 26 years old and the victim was a thirteen year old unmarried female. The difference in these ages is more than two years. The testimony of the victim establishes that there was consensual sexual intercourse between them. In regards to the convictions of both defendants for indecent behavior with a juvenile the evidence showed Herman’s age as mentioned above and that Wanda was 24 or 25 years old. The victim’s age and the age difference was also clearly proved. The testimony of the victim shows that the defendants performed various sexual acts in her presence for the purpose of their sexual gratification. The trial judge’s remarks show he carefully considered the evidence and the credibility of the witnesses before finding the defendants guilty. Questions of credibility and resolution of conflicting testimony are within the sound discretion of the trier of fact. State v. Klar, 400 So.2d 610 (La.1981); State v. Woods, 444 So.2d 1332 (La.App. 2d Cir.1984). The trial judge’s findings as to credibility are sound. The evidence in this record, when viewed in the light most favorable to the prosecution, fully supports these convictions. A rational trier of fact could find each element of each offense proven beyond a reasonable doubt. This assignment of error is without merit. Assignment #2 Appellants contend the trial judge erred in accepting their decision to waive trial by jury. They argue their decision was not knowing and intelligent because their trial counsel did not advise them of the consequences of the. waiver. Defendants’ trial counsel filed a written motion to waive trial by jury. Appellants were present in court when this was done and the district judge discussed the matter with them on the record. Following this colloquy the appellants still indicated they desired to waive trial by jury and the waiver was accepted. Appellants argue in brief that even though they engaged in this colloquy with the district judge their waiver was not knowing and intelligent because they responded to the court’s questions as previously instructed by their trial counsel. This allegation cannot be evaluated on this record. The record before us indicates that the waiver of trial by jury was knowingly and intelligently made. Therefore, on this record, this assignment of error is without merit. However, appellants may raise this issue on an application for post conviction relief based upon ineffective assistance of counsel. Assignment #3 Through this assignment appellants contend that they were deprived of a fair trial due to ineffective assistance of counsel. Such claims are properly raised in an application for post conviction relief, State v. Woods, supra; however, they may be considered on direct appeal where the record contains the evidence necessary to evaluate the claim. State v. Cupit, 508 So.2d 996 (La.App. 2d Cir.1987), writ den., 514 So.2d 1174 (La.1987). Appellants allege numerous deficiencies in the performance of their trial counsel. Almost all of these claims rest upon evidence not in this record. The appellants should present these claims to the trial court through an application for post conviction relief. Assignment #4 Appellants contend they should be granted a new trial upon grounds of newly discovered evidence. The alleged evidence is that the victim’s uncle has been charged with indecent behavior with a juvenile who is the victim of the crimes being reviewed on these appeals. Appellants argue this evidence would impeach the victim who testified that she was sexually active with no one other than Herman Bonnett. This issue is properly raised by a motion for new trial. LSA-C.Cr.P. art. 851. Such a motion must be filed within one year of the verdict of the trial court. LSA-C.Cr.P. art. 853; State v. Bolton, 408 So.2d 250 (La.1981). In order for a motion for new trial based upon new evidence to be meritorious the evidence must not only be newly discovered but of such a nature that it would probably have changed the guilty verdict. State v. Krempel, 471 So.2d 841 (La.App. 2d Cir.1985). Our review of the record shows that no motion for new trial was filed by defendants, therefore, this assignment is without merit. LSA-C.Cr.P. art. 853; State v. Bolton, supra. We also note that the alleged new evidence is not of such a nature that it would probably have changed the verdict. Appellants’ trial counsel thoroughly cross-examined the victim concerning her relationship with other men, particularly her uncle, through use of the letter she had written alluding to sex with other men and her possible relationship with her uncle. The trial judge’s remarks show he rejected the victim’s testimony that she was having sex only with Herman Bonnett and for that reason found Wanda not guilty of carnal knowledge of a juvenile. The new evidence is merely cumulative on an issue upon which the victim’s testimony had been successfully impeached. As such, it is not evidence which would have probably changed the verdict. The appellants’ convictions are affirmed. . § 80. Carnal knowledge of a juvenile Carnal knowledge of a juvenile is committed when: (1) A male over the age of seventeen has sexual intercourse, with consent, with any unmarried female of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons; or (2) A person over the age of seventeen has anal or oral sexual intercourse, with consent, with a person of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons. Lack of knowledge of the juvenile’s age shall not be a defense. Emission is not necessary; and penetration, however slight, is sufficient to complete the crime. Whoever commits the crime of carnal knowledge of a juvenile shall be imprisoned, with or without hard labor. for not more than ten years. . § 81. Indecent behavior with juveniles A. Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense. B. The trial judge shall have the authority to issue any necessary orders to protect the safety of the child during the pendency of the criminal action and beyond its conclusion. C. Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than five years, or both. . The appellants claim that their trial counsel was deficient in arranging an adequate demonstration of the mechanical device they allege was used to take many of the photos. We note that the record shows that the aparatus was carefully demonstrated in the courtroom and that several photos were taken in court using the device and the camera. We further note that photos of the device set up in the defendants’ home were also introduced into evidence. We observe that, on this record, it appears that trial counsel made a careful and diligent effort to illustrate this portion of his clients’ defense. . The state sought to convict Wanda on this charge on the theory that she was a principal in Herman’s crime against the juvenile by procuring contraceptives for the juvenile.

COLE, Justice. The grand jury of Ouachita Parish returned a true bill indicting defendant Winthrop Earl Eaton for first degree murder, in violation of La.R.S. 14:30. The district attorney and the defense attorney stipulated that, in the interest of justice, the court should grant a change of venue and trial took place in Rapides Parish. Following the guilt phase of the bifurcated trial, the jury unanimously found defendant guilty as charged. Trial continued, pursuant to La.C.Cr.P. art. 905.1, et seq., and the jury unanimously recommended imposition of the death penalty. The jury based its recommendation upon the finding of the following aggravating circumstances: “(A) the offender was engaged in the perpetration or attempted perpetration of aggravated rape; (B) The offender was engaged in the perpetration or attempted perpetration of armed robbery or simple robbery; (C) The offense was committed in an especially heinous, atrocious or cruel manner.” Thereafter, in conformity with the jury recommendation, the judge sentenced defendant to death. On appeal to this Court defendant presents thirteen assignments of error for the reversal of his conviction and sentence. Because we find no reversible errors were committed either in the guilt or penalty determinations, we affirm the conviction and sentence of death. FACTS Almost immediately after his arrest defendant admitted killing Reverend Lea Joyner in order to steal her car for a trip to Florida. He never thereafter denied his commission of the crime, but defended against the charge on the basis of a dual plea of not guilty and not guilty by reason of insanity. The murder occurred around midnight on March 11, 1985, in the parking lot of the Southside United Methodist Church of Monroe, Louisiana, where Rev. Joyner had been the minister for over twenty years. After killing Rev. Joyner and taking her car, defendant disposed of her body in a cotton field. He then went to Arkansas where he stayed with relatives. These relatives informed defendant’s parents of his presence and the fact that he had arrived in a small, new, white car. The parents were aware of Rev. Joyner’s disappearance and that the police were looking for her 1985 white Honda automobile. Consequently, they were suspicious of their son’s involvement in the situation and notified the Monroe police he was in Little Rock, Arkansas. Communication with the Little Rock police confirmed the white car had a temporary Louisiana license. The license number was checked and it was ascertained to be the same as that on the car belonging to Rev. Joyner. Monroe police obtained a warrant for defendant’s arrest and teletyped it to Little Rock where police effected the arrest. The Little Rock police advised defendant of his Miranda rights at the time of his arrest and again at the station before he gave a statement in which he admitted killing Rev. Joyner. He also drew a map indicating where he had left her body. A few hours later, police from Monroe arrived in Little Rock and interviewed defendant. After again receiving and waiving his Miranda rights, defendant gave another confession. The following account of the crime comes from defendant’s confessions. On several occasions when defendant passed the Southside United Methodist Church at the corner of Temple and South Fourth Streets in Monroe, Louisiana, he observed a small white car in the parking lot. He knew that a white woman who was usually at the church drove the car, but did not know her name or that she was the minister of the church. Defendant and a man named Isaac had discussed going to Florida and defendant planned to kill the woman and steal her car for the trip. On the night of March 11,1985, defendant arrived at the church around 10:15 p.m. and hid behind a bush which was beside the church and waited for the woman to leave the church and come to her car in the parking lot. He had a heavy pipe, a knife, a blanket and some line from a weed-eater with him. He had been waiting for a short time when a woman, not Rev. Joyner, left the church. He remained behind the bush for another hour or so before Rev. Joyner came out and walked to her car, the small white one defendant wanted to steal. He hit her twice on the back of the head with the pipe as she was standing by the car ready to open the door. When he put her on the blanket he had spread nearby, he could see that she was not dead so he stabbed her three or four times. He tied the blanket with the weed-eater cord and put the body in the back seat of the car. He drove away slowly so that he would not attract attention because he knew the police would have stopped him if he had been driving too fast. He drove around the area until he found Isaac, who climbed into the car and informed defendant he would not make the trip to Florida with him. At some point Isaac noticed the body in the back seat and became very nervous. Isaac had defendant park on the side of a store and left the car. Defendant got out of the car and talked with Isaac briefly before driving away and leaving his companion behind. Outside of town, defendant turned into a cotton field and drove to the back where he stopped to think for a few minutes. After concluding it was not the time for farming, he decided to dump the body there. He also threw the victim’s belongings in the field. Before he left, he tried to get his hand prints off everything, using the gloves he was wearing to wipe things. After leaving the field, he drove to Arkansas and spent the night at his grandmother’s house in Warren. In the morning he went to his aunt’s house in Little Rock where he was arrested. In both statements defendant gave he denied raping the victim. He did admit taking a gun she was holding in her hand and also removing a ring she was wearing. Jo Rugg testified she was a friend and parishioner of Rev. Joyner and had been with her until about 10:45 p.m. on March 11, 1985. The two had been in Rev. Joyner’s office and Rev. Joyner had walked to the outside door with her and watched her get into her car. As she drove away from the parking lot, Ms. Rugg checked to see that Rev. Joyner had gone back into the church office building. Mattie Crow, another good friend and parishioner, phoned Rev. Joyner each morning to awaken her. When Ms. Crow phoned on March 12, 1985, at 4:45 a.m., she received no answer. She called again, but there still was no response. She then phoned a church member and learned that Rev. Joyner’s car was not parked at the church. At trial, she identified the gun found in the glove compartment of the victim’s car, which had been seized in Little Rock at the time of defendant’s arrest, as the gun she had purchased and given to the victim. Bennie Fuller, the secretary-bookkeeper of the church arrived there a few minutes before 8:00 a.m. on March 12, 1985. A workman asked her to come to the side of the building where some construction was underway to see a spot he had discovered which looked like blood. She phoned Mattie Crow who came to the church. The women notified the police. In the course of their investigation, the police removed a section of carpet from a walkway between two parts of the church complex, which contained a spot thought to be blood. They also collected samples from other spots which appeared to be blood. They found a pair of glasses broken into two pieces which belonged to Rev. Joyner. Shortly before midnight on March 12, 1985, defendant’s parents talked with the police and communicated their suspicions of their son’s involvement in the disappearance of Rev. Joyner. As previously set forth, this conversation ultimately led to defendant’s arrest in Little Rock and the giving of the statements in which he confessed to killing the victim, but denied raping her. In his testimony, Dr. George McCormick, the pathologist who performed the autopsy on the victim, detailed the extent of the injuries she received. He said she had traumatic injuries in three general areas: the neck, the chest and the head. She had three stab wounds in her neck; two of them had gone all the way through and one was superficial. The thirteen stab wounds in the chest had cut both lungs, the heart, and the aorta. Eight of the wounds went all the way through the chest and came out the back. There was extensive hemorrhage in the chest; the sternum (breastbone) had been cut into two pieces; there were multiple broken ribs on both sides from the force of the stabbing. The victim had multiple injuries on her head and neck. There was extensive bruising around the left eye which went across the bridge of the nose and to the corner of the right eye. The bone forming the eyesockets was fractured on both sides. There was a large laceration on the left side of her forehead which ran from the left eyebrow to the hairline and was so deep that the skull showed. There was a large laceration above the top of the right ear and a similar one on the left side of the head above and behind the left ear. A large hemorrhage beneath the entire scalp extended from the eyebrows to the back of the head. The victim had a large skull fracture which started at the top of the head, ran to the right and then continued across the floor of the skull to the left ear. The fracture almost completely separated the front of the skull from the back. There was bruising over the entire brain. The victim’s pubic bone had been fractured and separated down the mid-line. There was an area of congestion in the vagina which suggested a traumatic injury. There were smudges on both her knees which appeared to be fingerprints. The large number of sperm in the vagina indicated there had been recent intercourse. The congestion in the vagina was consistent with an object, such as an erect penis, having been forcefully placed in the vagina. Dr. McCormick stated this had occurred before death because the “reaction of the blood increasing the circulation to the area that’s traumatized would not happen after she was dead ... whatever made that discoloration was made before she died.” On cross-examination, Dr. McCormick said the blows to the head probably rendered the victim unconscious. However, on redirect by the prosecutor, he said the victim had lived at least fifteen to thirty minutes after the largest chest stab wound had been inflicted. He explained there were white cells in the area of the cut and this would not take place until that period of time had elapsed. He said it was possible the victim could have lived one to two hours after receiving her injuries. In support of his insanity defense, defendant called Randall Grant, a clinical social worker at the Monroe Mental Health Clinic. Mr. Grant had interviewed defendant after his release from The Pines, an inpatient substance abuse facility. During this interview, on February 27, 1985, defendant indicated he smoked marijuana almost daily and had done so for the past five years. Defendant’s discussion was rambling but could be focused with direct questioning. Defendant denied either auditory or visual hallucinations and also denied suicidal or homicidal ideation. Mr. Grant scheduled a psychiatric evaluation for March 6 and defendant was to return to see Grant on March 13. John MacMahon was the psychiatrist who interviewed defendant on March 6, 1985. Dr. MacMahon was on the staff at Central Louisiana State Hospital. He conducted a thirty minute interview with defendant and saw no signs of major mental illness. He thought defendant’s only problem was that he smoked a lot of marijuana. He talked with defendant’s parents and told them that defendant would not stop smoking or become self-sufficient while they provided food and shelter for him. Thus, Dr. MacMahon suggested defendant’s parents “kick him out.” On cross-examination Dr. MacMahon said defendant’s affect was appropriate and he showed no thought disorder. Reading between the lines of The Pines discharge paper, he believed defendant had been discharged because he was uncooperative and was breaking the rules. The prosecutor asked the doctor about specific aspects of the case as they might indicate defendant’s ability to discern right from wrong. The doctor said planning was a sufficient factor in determining whether defendant knew right from wrong. He did not think that observing the speed limit was such a factor, but said wiping his fingerprints and fleeing the scene showed defendant realized he was in trouble. On redirect, defense counsel asked about the effect marijuana usage would have and the doctor said marijuana impairs judgment. However, in response to the prosecutor’s question, Dr. MacM-ahon said it was his understanding marijuana did not affect the ability to know right from wrong. Defendant’s final witness was his father, Wade Eaton. Mr. Eaton said defendant had made fair grades in the early years, but his work became poorer until he finally was in special education classes. He said defendant’s problems began in 1981. Defendant was 14 or 15 when he began experimenting with drugs, particularly marijuana. He referred to defendant’s unusual behavior with animals. Defendant would at first treat the animal well, then kill it and sleep with the dead body. Defendant would become angry and would destroy things. Once he knocked out all the windows in the house. Defendant had several short term jobs but would have problems with supervision. The longest job defendant had lasted only five or six weeks. In 1984 he sought professional help for defendant who had become “mighty violent.” Finally, on February 1, 1985, defendant was admitted to The Pines in Shreveport where he stayed one day short of three weeks. After talking to Dr. MacMahon, Mr. Eaton attempted to put defendant out of the house. Mr. Eaton said he gave defendant one week before he had to leave. He placed this talk on a Wednesday. He said he had another talk with defendant on Sunday, March 10, 1985, and then did not see him again. He added his wife saw defendant around 4 or 4:30 p.m. on Monday, which was the day of the crime. He said defendant had no realistic goals, explaining defendant talked of a musical career but had no musical talent. He added defendant carried a Bible with him and even had one inside his underwear. He said defendant grinned at everything and was the same in jail. According to Mr. Eaton, defendant “never has shown a moment worth of sorrow since it happened.” In rebuttal, the prosecutor called Dr. Norman L. Mauroner, a psychiatrist at the VA Hospital in Shreveport. He had examined defendant on June 4, 1985, and on June 19, 1985, and believed at the time of the crime defendant knew what he was doing. He found no overt mental illness. He believed defendant had a personality disorder which does not qualify as insanity. He stated the facts of the case indicated careful planning which in turn indicated defendant knew what he was doing. Unlike Dr. MacMahon, Dr. Mauroner did think driving within the speed limit showed defendant was covering his tracks. He added defendant’s use of the gloves to wipe away his fingerprints reinforced his opinion and defendant’s I.Q. of 70 or 71 placed him at the upper limit of mild mental retardation. ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO By these assignments of error, Eaton contends the introduction of photographs of the victim in both the guilt and penalty phases prejudiced him and constitutes reversible error. The state introduced two sets of photographs ■ of the victim, which were objected to at trial by the defense as irrelevant, gruesome and prejudicial. Eaton argues the pictures were not offered to prove any material fact in issue and instead were introduced merely to inflame the jury against him. This is supported, he claims, by the fact the prosecutor saved the complained of photographs as the last exhibits to display to the jury, at the end of the guilt phase. Eaton also points to a newspaper article which reported two female jurors were wiping their eyes as if they were crying when some of the more “graphic” evidence was shown to them. Also, he complains that during rebuttal argument in the sentencing phase, the prosecutor waived one of the challenged photographs of the victim and stated, “You saw the victim. She’s talking to you. Can’t you hear her? Don’t you hear her saying do justice today?” This court has established a number of well settled guidelines regarding the introduction of photographs. The mere fact a photograph is gruesome does not in and of itself render a photograph inadmissible. The test of admissibility is whether the probative value outweighs any prejudicial effect which may result from the display to the jury. State v. Comeaux, 514 So.2d 84 (La.1987); State v. Beach, 320 So.2d 142 (La.1975); State v. Morris, 245 La. 175, 157 So.2d 728 (1963). Generally, photographs of a victim’s body which depict the fatal wounds are revelant to prove the corpus delecti, to establish the identity of the victim, the location, severity and number of wounds, and to corroborate other evidence of the manner in which the death occurred. Comeaux, 514 So.2d at 96. The trial court’s admission of an allegedly gruesome photograph will be overturned on appeal only if the prejudicial effect clearly outweighs the probative value. No error will be found unless the photographs are so gruesome so as to overwhelm the jurors’ reason and lead them to convict the defendant without sufficient other evidence. State v. Perry, 502 So.2d 543 (La.1986). The first set of challenged photographs was taken when police discovered the victim’s body in the cotton field, one day after the murder. Six photographs were objected to. Two show the entire body of the victim taken from different angles. Several of the photographs taken at close range, depict the victim’s head, neck and upper body, including the chest area. One picture, taken after the body had been turned over, depicts a tear in the undergarment and wounds in the back. The trial judge ruled the photographs were admissible to show the scene of the crime, the wounds to the victim’s face, mouth, torso and back, as well as the tearing of the undergarment. The second set of photographs was taken at the coroner’s office, after the body had been cleaned of blood and debris. Of the six challenged photographs, one shows a cut in the victim’s undergarment. This cut was made across the pubic area and continued down the victim’s left leg. The remainder of the photographs depict the wounds suffered by the victim. A ruler was used to demonstrate the length and width of the wounds to the forehead, the left and right side of the victim’s head, her neck and chest. The state offered these photographs in conjunction with the testimony of Dr. McCormick, the coroner, as to the cause of death. Again, the trial judge ruled the photographs were admissible to show the extent of the wounds and the tear in the girdle. When the judge so ruled, Eaton moved to suppress in limine the first set of photographs on the basis the second set depicted the wounds better and exhibiting the first group would be merely cumulative. The trial judge denied the motion. He concluded that although some of the photographs were “gruesome” their probative value exceeded any prejudicial effect they may have on the jury. These photographs are clearly not pleasant. However, in the guilt phase they were highly relevant to establish the nature and extent of the wounds and corroborate the testimony of Dr. McCormick as to the cause of death. The photographs depicting the tear in the victim’s girdle were probative in proving a rape did occur, which was a much disputed issue at trial. Upon reviewing the photographs, we conclude the trial judge was correct in finding their probative value outweighed any possible prejudicial effect which may have resulted from their display to the jury. In the sentencing phase, the state sought the death penalty on the basis the crime was committed in an especially heinous, atrocious, or cruel manner. The challenged photographs show the nature and extent of the wounds inflicted on the victim by Eaton, and were extremely probative in proving this aggravating circumstance. No amount of testimony could depict the heinous nature of Eaton’s crime as well as the photographs could, and the state acted properly in introducing them. We cannot conclude the photographs so inflammed the jury as to lead it to recommend the death penalty and find no error resulting from the introduction of the photographs in the sentencing phase of the trial. ASSIGNMENT OF ERROR NUMBER THREE With this assignment of error defendant contends the trial judge erred when he refused to allow Otis Robinson to testify regarding a conversation he overheard between Isaac Green and defendant prior to the murder of the victim. As previously set forth, defendant confessed he killed the victim so he could steal her car for the trip he and Isaac Green were to take to Florida. In his testimony as a defense witness, Green admitted he had told defendant they would go to Florida together if defendant secured a car for the trip. Both Eaton, in his confession, and Green, in his testimony, recalled meeting at Robinson’s home the Saturday before the murder. The defense’s attempt to elicit the conversation from Robinson was thwarted by the court’s ruling anything relating to the conversation would constitute inadmissible hearsay. The defense did not attempt to proffer Robinson’s testimony. It did, however, attempt to proffer a statement made by Robinson to police several days before the trial began which outlined the conversation the defense hoped to introduce at trial. The court rejected the proffer at the conclusion of the guilt phase, but allowed the defense to proffer the statement during the sentencing phase. We assume Robinson would have testified consistently with his statement to police, and use it to determine whether the court committed reversible error in excluding his testimony. In the guilt phase, Eaton’s only defense was insanity. The defense sought to, among other strategies, establish that the nineteen year old Eaton was not acting under his own volition, but under the control and domination of the manipulative Isaac Green, an experienced criminal. The defense’s theory was that the eighteen year old Green was able to manipulate Eaton into committing the crime of murder by his promises of a trip to Florida with refuge at his parents’ home. At trial, Green divulged he was known, among other aliases, as the “Youngest Crime Boss.” He explained in his prosecution by the state of Florida for a series of rapes, armed robberies, burglaries and assaults, he was labeled the “mastermind” behind the crimes. He stated in several of the crimes accomplices were involved, whom he referred to as his “protegees.” Green currently is serving eight life sentences in Florida. Eaton and Green first met in a cell in Monroe City Jail. As cellmates, they became friends and discussed making a trip to Florida where they would stay with Green’s parents. After being released from jail, they met several times and discussed stealing a vehicle to make the trip. In his confession, Eaton asserted he told Green of his plan to murder the owner of the vehicle, and indicated Green encouraged him to “do it,” to do whatever was necessary to obtain the vehicle. Green, however, denied any involvement beyond the plan to steal the vehicle. He admitted discussing going to Florida with Eaton and planning to steal a vehicle for that purpose, but insisted it was Eaton who sought him out and not vice versa. His knowledge, he testified, was limited to the location of the vehicle at the church. He denied any knowledge of or involvement in Eaton’s plan to commit murder. He also testified he never actually intended to go to Florida with Eaton, but told him he would do so to “get the monkey off my back.” Green did recall seeing Eaton at Robinson’s home the Saturday before the murder, but testified their discussion was limited to general conversation, such as “how things were going.” He stated he and Eaton did not discuss going to Florida in Robinson’s presence, but admitted he obtained a piece of paper while at Robinson’s home and wrote for Eaton the address in Florida where they would be staying. Otis Robinson was unable to testify as to the conversation he overheard between Eaton and Green at his home on the Saturday before the murder. However, in his statement to police, Robinson recalled that Eaton advised Green everything was ready for the trip and described the car as being white. He also stated that Green questioned Eaton about some credit cards and told Eaton, “don’t leave them credit cards behind.” After Eaton departed, Green told Robinson, “I’m gonna let the nigger go and get them credit cards, think I’m going but I ain’t going.” Lastly, Robinson asserted several weeks after the murder, Green told him that although he did not participate in the murder of Rev. Joyner, he helped Eaton “dump” the body. We can summarize Otis Robinson’s account of the conversation as follows. First, it contradicted Green’s claim he and Eaton did not discuss going to Florida in Robinson’s presence. However, Green testified he and Eaton planned to take a trip to Florida. Secondly, Robinson would have told the jury Green never really intended to go to Florida with Eaton. Again, however, Green testified he never really intended to take the trip. The two remaining portions of Robinson’s statement are relied on heavily by the defense. These portions are Green’s reference to the credit cards and Green’s claim he helped to dispose of the body. The defense argues these statements are not hearsay, and they should have been admitted in both the guilt and penalty phases as bearing on Eaton’s state of mind in committing the offense. We agree with Eaton that Green’s reference to the credit cards was not hearsay. This court had adopted the following definition of hearsay: Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370, 1373-74 (La.1978). Thus, where an utterance is offered circumstantially to show the effect it had on the mind of the person who heard it, the utterance is not hearsay because its value does not lie in its truthfulness, rather, its value lies in the fact it was said. Whether or not the statement was made depends on the veracity of the in-court witness who is testifying, and not the out-of-court declarant. State v. Weiland, 505 So.2d 702 (La.1987). The statement regarding the credit cards was offered by the defense to show the effect it had on Eaton’s state of mind, that is, to show that Eaton was acting under the control of Green instead of his own volition. The probative value of the statement rested in its having been said, and as such, it did not constitute hearsay. We find this statement should have been admitted by the trial judge. On the other hand, the statement regarding the disposal of the body was hearsay. It was offered by the defense to show the extent of Green’s involvement in the murder, from which it was to be inferred that Eaton was acting under Green’s control. For the sought after inference to be created, the matter asserted had to be true. Thus, it had to be true that Green helped dispose of the body for the statement to have probative value. Finding no exception to the hearsay rule applicable in this case, we conclude the trial court properly excluded the latter statement in the guilt phase. With respect to the guilt phase, the question remaining is whether the erroneous exclusion of Green's statement to Eaton to “get the credit cards” requires this court to reverse Eaton’s conviction for first degree murder. We conclude it does not. In State v. Gibson, 391 So.2d 421 (La.1980), we adopted the test enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This test requires a reviewing court to decide whether there is a reasonable possibility the exclusion of the evidence “might have contributed to the conviction,” and whether the error is “harmless beyond a reasonable doubt.” We conclude beyond a reasonable doubt the error did not affect the outcome of the trial. The evidence fell woefully short of establishing the insanity defense. Under our law, the defendant bears the burden of proving by a preponderance of the evidence he was insane at the time of the offense. The defendant must persuade the jury he suffered from a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question. La. R.S. 14:14; State v. Welcome, 458 So.2d 1235 (La.1983); State v. Brogdon, 426 So.2d 158 (La.1983). In attempting to escape criminal responsibility, the defense principally relied on the following factors: (a) Eaton’s low IQ of 70, which is borderline mentally retarded-normal; and (b) Eaton’s association with Green. The psychiatric testimony refuted any notion Eaton was insane at the time of the offense. Both the defense and the eourt-appointed psychiatric experts testified Eaton was sane at the time of the murder. Dr. John MacMahon, a psychiatrist who testified for the defense, examined Eaton just six days before the murder. He believed Eaton’s biggest problem was his marijuana use, but testified heavy marijuana use does not affect the ability of one to know right from wrong. Dr. Norman Mau-roner, the psychiatrist who examined Eaton after the murder, found Eaton suffered from a “personality disorder” but concluded he did know right from wrong at the time of the offense. To support this conclusion, he pointed to Eaton’s actions which demonstrated he was aware of his wrongdoing. First, Eaton carefully planned the murder. He searched the town for a suitable vehicle, gathered the instrumentalities he would need to commit the murder and dispose of the body, and lay in waiting approximately two hours until he could confront his victim alone. Secondly, Eaton “covered his tracks.” He admitted in his confession to driving slowly so the police would not stop him; he wiped off his fingerprints from the objects left behind at the scene; he abandoned the body in a field; and, he fled the state. The experts agreed such actions indicated an appreciation of the wrongfulness of one’s conduct. In addition, Eaton admitted he was aware what he had done was wrong. In his confession to police, one day after the murder, in reference to his disposing of the body, Eaton stated, “I realized that I had done wrong not just because of mankind, really I had done wrong with God really. You know, I understand what I’ve done and I knew right and all of this_” Later in his confession, Eaton asserted, “Right now, I totally realize that I done wrong.” Thus, the evidence showed that far from being insane at the time of the offense, Eaton was able to appreciate the wrongfulness of his conduct, and thus able to distinguish right from wrong. Even if Green’s reference to the credit cards had been placed before the jury, we have no doubt the jury would still have refused to return a verdict of not guilty by reason of insanity. Even with this evidence, the defense simply would have been unable to persuade the jury Eaton was acting under the dominion and control of Green to the extent he was rendered unable to distinguish right from wrong. There is no evidence that Eaton was physically or mentally coerced by Green to commit this brutal murder. The evidence of Green and Eaton’s association, as presented to the jury, included Eaton’s claim he told Green of his plan to commit the murder, and Green’s encouraging him to do whatever was necessary to obtain the car. The jury had before it evidence of Green’s criminal reputation as a “mastermind” behind violent crimes, as well as Green and Eaton’s plot to steal a vehicle. The only additional information the jury would have obtained from the excluded evidence was that Green was telling Eaton to commit robbery. All of the evidence admitted on the question of Eaton’s state of mind, combined with this evidence, could not have established Eaton was under Green’s control to the point of being unaware of what he was doing in committing this brutal murder. Because the evidence showed unquestionably Eaton was sane at the time of the murder, and the admitted and excluded evidence on the question of influence combined could not have established otherwise, we conclude the error was not reversible because beyond a reasonable doubt the exclusion of the evidence had no impact on the guilty verdict. We now address Eaton’s contention the death sentence must be reversed because of the exclusion of Robinson’s testimony in the sentencing phase. During the sentencing phase, Robinson was again precluded from testifying about the conversation between Eaton and Isaac Green by the trial court’s ruling such testimony would be hearsay. The defense asserts this testimony was offered in support of a statutory mitigating circumstance, that is, to show “the offense was committed while the offender was under the influence or domination of another person.” La.C.Cr.P. art. 905.5(c). This evidence, the defense posits, was relevant in showing Eaton acted under Green’s control in committing the brutal murder, and therefore Eaton was deprived of a fair trial on the issue of punishment because of the exclusion of relevant mitigating evidence. In evaluating the defendant’s position, we begin by recognizing that it is well settled in Louisiana that a defendant in a capital case should be allowed to place before the sentencing jury all relevant evidence in mitigation of punishment. State v. Weiland, 505 So.2d 702, 707 (La.1987). We also recognize that the United States Supreme Court has held in capital cases the sentencer “may not be precluded from considering ‘any relevant mitigating evidence.’ ” Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986). See also, Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). This rule stems from the Eighth and Fourteenth Amendment protections which guarantee the defendant a fair trial on the issue of punishment. Thus, the United States Su preme Court has vacated death sentences where the sentencer was precluded from considering relevant mitigating evidence which bore on the character of the accused or the circumstances of the offense. See, Id. Nevertheless, the question arises as to whether any error in excluding even remotely relevant mitigating evidence mandates a reversal of the sentence, even where it is clear beyond a reasonable doubt the evidence could not have affected the jury in its determination of the death penalty. We believe it does not. As the United States Supreme Court recently noted, it is only in the absence of a showing that the exclusion of mitigating evidence “was harmless, or that it had no effect on the jury,” that the jurisprudence holds a death sentence invalid. Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987). We now hold that exclusion of Robinson’s testimony at the sentencing phase did not deprive Eaton of a fair trial and was not error requiring a reversal of the death penalty imposed below. The totality of the evidence which did go to the jury shows beyond a reasonable doubt defendant was not under the domination of Green to commit murder. The proffered testimony of Robinson at the sentencing phase regarding the credit cards and Green’s alleged help in disposing of the body simply could not have affected the jury’s finding as to mitigating circumstance of influence and domination found in La.C.Cr.P. art. 905.-5(c). The jury already knew of Green and Eaton’s association, including Eaton’s claim that Green knew of the plan to commit a murder and Green’s encouragement to “do it.” The jury already knew of the eighteen year old Green’s reputation as a “mastermind” behind violent crimes, as well as Green and Eaton’s plot to steal a vehicle. There was no evidence that Eaton was directly coerced, either physically or mentally, to commit this brutal murder. Thus we find beyond a reasonable doubt the excluded evidence, which was cumulative on the issue of influence or domination, would have had no impact on the jury's finding in that regard. Moreover, not only is the proffered testimony of' Robinson that Green said he helped dispose of the body merely cumulative on the alleged mitigating factor of influence or domination, but evidence of what Green did after the murder is arguably not even relevant to Eaton’s state of mind at the time of the murder. The fact that Eaton picked up Green in the stolen car while carrying the body might indicate that Eaton’s state of mind up to that point was that Green approved of murder. However, whether Green then proved Eaton right or wrong by his actions, in either helping to dispose of the body or by refusing to do so, is irrelevant because the murder was already committed. We are not here concerned with influence or domination to commit a theft or robbery. La.C.Cr.P. art. 905.5(c), in establishing a statutory mitigating circumstance, must be viewed only within the context of the offense with which the defendant is charged. It is clear from the record in this case the defendant was not under the domination or influence of Green to commit a murder. The jury had no evidence from which it could reasonably conclude such was the case. To the contrary, it had overwhelming evidence of the defendant’s singular role in preparing for and executing the deed. The extent of his preparation and the length of time he waited to accomplish his purpose illustrates his desire and determination to carry out the act. Certainly, these factors negate any idea of operative influence or domination. We conclude there is a sufficient showing in this case that the exclusion of Robinson's testimony in the sentencing phase had no effect on the jury’s sentence recommendation. Accordingly, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER FOUR By this assignment of error, defendant contends that the jury instructions given by the trial court unduly influenced the jury to believe it was mandatory to impose the death sentence. Defendant complains that the judge did not give five of the instructions he requested and further complains the judge misread the unanimity requirement of the finding of an aggravating circumstance before consideration of the death penalty as a sentencing alternative. Defendant requested jury instructions for the penalty phase of the trial. The first concerns the necessity of each juror finding beyond a reasonable doubt that at least one statutory aggravating circumstance exists. The second is that the law presumes the defendant convicted of capital murder is innocent of any aggravating circumstances. The third states that the jury cannot automatically impose the death penalty, even if the state proves one or more aggravating circumstances, without first considering mitigating circumstances and evidence. It also states that the Court is required to impose a sentence of life imprisonment if the jury is unable to reach a unanimous decision in recommending a sentence. Defendant says that the basis of these three instructions “was to place before the jury, clearly and unambiguously, their duty in unanimously finding beyond a reasonable doubt the aggravating circumstance.” He relates his argument on the judge’s failure to give these three requested instructions with his complaint that the judge failed to include the term “unanimously” in his instruction regarding the finding of aggravating circumstances. A requested jury instruction is to be given if it is pertinent, correct and needs no explanation. La.C.Cr.P. art. 807; State v. Lombard, 486 So.2d 106 (La.1986). However, the judge need not give it if it is included in his general charge to the jury. State v. Jones, 474 So.2d 919 (La.1985); State v. James, 431 So.2d 399 (La.1983). Defendant’s first three requested charges were covered by the judge’s general charge to the jury. He instructed the jury “[b]efore you decide that a sentence of death should be imposed you must unanimously find beyond a reasonable doubt that at least one statutory aggravating circumstance exists.” Although the judge did not repeat the word “unanimously” when giving additional instructions, the charge taken as a whole makes it clear that the finding of an aggravating circumstance must be unanimous. Compare, State v. Knighton, 436 So.2d 1141 (La.1983). Defendant’s fourth requested jury instruction was that a mitigating circumstance did not have to be proven beyond a reasonable doubt. Instead the jury was to be told that it “must find that a mitigating circumstance exists if there is any substantial evidence to support it.” We find no error. Defendant’s final request was that the jury be instructed it was “to presume that if you sentence [defendant] to life imprisonment without the benefit of probation, parole or suspension of sentence, he will spend the rest of his life in prison. You are to make no other presumptions.” This Court has considered the propriety of a requested instruction similar to this one and held that the judge did not err in refusing to give it. In fact, the Court believed that “such a charge calls the jury’s attention to the possibility of early release.” Jones, 474 So.2d at 933. This assignment lacks merit. ASSIGNMENTS OF ERROR NUMBERS FIVE AND SIX In these assignments defendant focuses upon several comments made by the prosecutor during closing and rebuttal arguments at the conclusion of the penalty phase of the trial. Defendant contends these remarks inflamed the jury and interjected passion and prejudice into the proceedings. Defendant first complains that the prosecutor referred to the victim as a “a member of the most discriminating class in Amer-ica, murder victims.” When the judge overruled the defense objection, the prosecutor paraphrased the remark. Later, in his rebuttal argument, the prosecutor told the jury he had done all he could, that he did not have the authority to do more. He said it was now up to the jurors to do their duty. He told them death was something we do not wish to think about, but they should think about the thousands of deaths that occurred during World War II “because our boys had to kill to preserve our way of life.” He told the jury that was the issue before them: “preserving] our way of life.” Near the end of the rebuttal argument, the prosecutor referred to the death penalty as “society’s act of self defense” and said it was “the enforcement of society’s right to be free from murderers.” The judge overruled defense counsel’s objection. The prosecutor called the jury’s attention to the fact that Rev. Joyner had a gun, indicating to him she believed in self-defense. He then said: It’s the right of self defense of society. And if you fail to return that death penalty you have shirked your responsibility to your fellow man. You saw the victim. She’s talking to you. Can’t you hear her? Don’t you hear her saying do justice today? Do justice. Enforce society’s right of self defense or the safety you now enjoy most of the time in your home or at your church or on the street will be no more. She’s crying to you. Please hear her. After the jury retired to deliberate, defense counsel moved for a mistrial on the basis of the allegedly improper remarks made by the prosecutor during closing arguments. The judge denied the motion. Closing argument is to be confined to the evidence admitted, to the lack of evidence, to conclusions of fact which may be drawn therefrom and to the law applicable to the case. La.C.Cr.P. art. 774. The argument is not to appeal to prejudice. The Court has warned prosecutors they are not to turn closing argument into a plebiscite on crime. State v. Sugar, 408 So.2d 1329 (La.1982); State v. Hayes, 364 So.2d 923 (La.1978). Nevertheless, before the Court will reverse on the basis of improper closing argument, it must be thoroughly convinced the remark influenced the jury and contributed to its verdict. State v. Ford, 489 So.2d 1250 (La.1986); State v. Mattheson, 407 So.2d 1150 (La.1981). In making this determination, the Court gives credit to the good sense and fairmindedness of the jury. State v. Jarman, 445 So.2d 1184 (La.1984). The remarks of which defendant complains were not of such magnitude that, of themselves, they would have caused the jury to recommend the death penalty. In particular, the jury found the existence of three aggravating circumstances, one of which was that the crime was committed in an especially heinous manner. The other aspect of these assignments of error concerns the prosecutor’s reference to the victim’s pubic bone having been broken when she was raped. Defendant says the autopsy report indicated the fracture was a post-mortem one. However, he concedes this report does not form part of the record. Moreover, defense counsel did not cross-examine Dr. McCormick about whether the victim was dead or alive at the time this fracture occurred or even about the fracture. The testimony was clear that the victim was still alive at the time of the rape. The prosecutor expressed the opinion that the marks on the victim’s knees resulted from defendant pushing her legs down so that he could have intercourse. It is true the marks could not be identified as belonging to defendant, but the logical conclusion to be drawn from the facts was the one stated by the prosecutor. We do not believe these comments of themselves influenced the jury or contributed to the verdict, and therefore do not find the comments rise to the level of reversible error. Accordingly, these assignments of error lack merit. ASSIGNMENTS OF ERROR NUMBERS SEVEN AND TWELVE By these assignments of error defendant argues the trial court erred in failing to grant his request for a mistrial at the beginning of the sentencing hearing, based upon a bomb threat communicated to the jury on the eve of the hearing. The defendant also argues the bomb threat and other factors made the jury’s sentence excessive in that it was imposed under the influence of fear, revenge, passion, prejudice and public pressure. See, La.C.Cr.P. art. 905.9 and La.Supreme Court Rule 28, § 1(a). This challenge is based on the combination of public sentiment in Rapides Parish after a previous capital murder trial ended in a life sentence for the defendant, and a bomb threat which was received at the hotel where the jurors were staying. The public pressure on the jury to impose the death penalty, Eaton argues, emanates from previous capital cases tried in Rapides Parish. Eaton’s trial was originally to be held in Ouachita parish, but upon joint stipulation of the defense attorney and prosecutor, the trial was moved to Rapides parish. Since 1985, Rapides parish has been the setting for three capital cases prior to Eaton’s: State v. Prestridge, 507 So.2d 1271 (La.App. 3d Cir.1987); State v. Brown, 496 So.2d 261 (La.1986); and State v. Comeaux, 514 So.2d 84 (La.1987). Prestridge involved the brutal murder of an Alexandria girl who was raped and whose body was hanged from a tree. In the 1985 prosecution for the murder, Kenneth Prestridge was convicted of murder, but was sentenced to life. The community was outraged over the life sentence, as it demonstrated through hundreds of letters to the local newspaper voicing hostility at the sentence. This court acknowledged the community outrage flowing from the Pres-tridge case when we reversed the conviction of Bryan Brown for first degree murder. Brown had been convicted of first degree murder and sentenced to death in Rapides parish for the murder of a local high school girl. The voir dire in the Brown case began barely nine weeks after the letters voicing outrage at the Pres-tridge verdict appeared in the local newspaper. In reversing Brown’s conviction, we found the trial judge should have granted his motion for a change of venue. We concluded the extensive press coverage and notoriety surrounding the Brown case itself, resulting from Brown’s escape from prison, and the community outrage over the life sentence in the Prestridge case, had a cumulative effect of depriving the defendant of a fair trial. In Comeaux, the defendant was brought to trial on and was convicted of first degree murder and sentenced to death. His death sentence was reversed by this court on the basis of a violation of his sixth amendment right to counsel. Thus, since 1985, in all three of the capital cases held in Rapides parish since the Prestridge trial, the jury has recommended the sentence of death for the defendants. Eaton argues the public pressure on juries in Rapides parish to impose the death sentence because of the Prestridge case, combined with a bomb threat levied at the jurors in this case, caused the jury to recommend the death sentence. The evening before the sentencing hearing was scheduled to begin, a bomb threat was received at the hotel where the jurors were staying. The judge ordered the jurors be brought to the courtroom at once. However, he did not communicate with them and did not inform the attorneys of his actions. The jurors spoke only with the bailiffs, who upon learning there was no bomb at the hotel, asked the jurors whether they wished to return to the hotel. All of the jurors agreed to do so. There is no record of the communications between the jurors and bailiffs. The next morning, the defense moved for a mistrial, which was denied by the trial judge. The judge told the jury: Ladies and gentlemen, I understand that you had some excitement last night. I want to advise you that unfortunately this kind of thing happens in capital cases such as this. I previously presided in a capital case in which there were two threats that bombs were set to go off in the courtroom. Nothing ever happened. In my opinion it was a crank call someone trying to — some—to be funny I suppose. But it isn’t funny at all. But I do want to advise you quite seriously that it is in no way to affect your attention, your deliberations, or your verdict in this matter. I sincerely hope that it will have no affect whatsoever on your final determination in this case. And my instructions are to you that you are to as best you can wipe it out of your mind only decide this case upon what occurs in this courtroom and no where else. The record shows the jurors assured the court the incident would have no effect on their deliberations and final decision. Our review of the voir dire examination of the jurors chosen to serve on Eaton’s jury reveals two jurors were aware of the Prestridge case, two were aware of Brown and two were aware of both cases. Of the jurors who recalled the Prestridge case, one was aware he received a life sentence for what she called a “horrible crime,” but also stated she thought he got what he deserved. The other juror could not recall any of the particulars of the case. Neither of the jurors who recalled the Brown case paid very close attention to the case. One stated he formed no opinion and another stated she did not know the sentence he received. Of the two jurors who recalled both cases, one admitted he heard of the cases but stated he did not follow them closely. The other juror knew the parents of the victim who was killed by Bryan Brown, but stated her decision would be unaffected by such knowledge. The remaining jurors either denied knowledge of any capital cases in the area in the last several years, or were not questioned during the voir dire examination on the subject. Under these circumstances we cannot find the death penalty was made under fear and pressure such that it must be reversed. The jury assured the court the bomb scare would have no effect; yet, defendant posits that we must disregard this assurance upon the insinuation that Rap-ides Parish is still so incensed over the Prestridge case that no Rapides Parish jury would have failed to infer that members of the local community were warning them to impose the death penalty. Our review of the voir dire examination belies this argument. Accordingly, these assignments of error are without merit. ASSIGNMENT OF ERROR NUMBER ELEVEN In this assignment of error defendant contends the jury erred in determining the crime was committed in an especially henious, atrocious or cruel manner because there was insufficient evidence to support this finding. Defendant is correct this Court has defined “torture” as serious physical abuse of the victim before death. State v. Sonnier, 402 So.2d 650 (La.1981). The Court has also said this aggravating circumstance is present when the murder was carried out in an inhumane manner or the death was particularly painful. State v. Kirkpatrick, 443 So.2d 546 (La.1983); State v. Baldwin, 388 So.2d 664 (La.1980). The Court has considered this issue as it relates to multiple stab wounds several times, most recently in State v. Brown, 514 So.2d 99 (La.1987). The victim in that case received thirteen stab wounds, but there was no evidence regarding the length of time it would have taken the victim to bleed to death or whether he suffered greatly before losing consciousness. Nevertheless, the Court said: “Considering the evidence of the manner in which the wounds were inflicted, we find substantial support for the jury’s finding that the murder was committed in an especially heinous, atrocious and cruel manner.” Id. at 113. The Court noted it had upheld jury findings that the offense was committed in an especially cruel and heinous fashion in other cases where there was the infliction of multiple stab wounds, citing State v. Taylor, 422 So.2d 109 (La.1982) (more than 20 stab wounds); State v. Moore, 414 So.2d 340 (La.1982) (13 stab wounds); and State v. Clark, 387 So.2d 1124 (La.1980) (30 to 35 stab wounds). In the instant case, the victim received sixteen stab wounds, three more than the victim in Brown, as well as at least two blows to the head with a heavy pipe. There was evidence she probably was rendered unconscious by the first blow with the pipe. Nevertheless, one of the blows to the head was of such severity that it literally split the skull. The pathologist testified the victim lived a minimum of fifteen to thirty minutes, and possibly an hour or two, after she received the largest of the stab wounds. Defendant, in his statement, said he stabbed the victim because he could see she was not dead after he had hit her with the pipe. Given the facts of this case, we find there is “substantial support” for this jury’s finding of this aggravating circumstance. Accordingly, this assignment of error lacks merit. ASSIGNMENT OF ERROR NUMBER THIRTEEN By this assignment of error, defendant contends that imposition of the death penalty in this case is disproportionately excessive. We note that even absent this assignment we would review defendant’s sentence of death to determine if it is excessive. The Louisiana statutory scheme requires a capital sentence review. La.C.Cr. P. art. 905.9. Under Louisiana Supreme Court Rule 28 this Court reviews three things: (a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and (b) whether the evidence supports the jury’s findings of a statutory aggravating circumstance, and (c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. We have already reviewed and resolved the concerns listed under sub-part (a) in our discussion of defendant’s assignments of error numbers 1, 2, 5, 6, 7 and 12; and the concern of sub-part (b) was reviewed under our discussion of assignment of error number ll. Accordingly, we shall turn directly to the issue of whether the sentence in this case is disproportionately excessive. Since January 1, 1976, juries in Rapides Parish have recommended the death penalty for five defendants: Robert Wayne Felde; Avery “Pete” Moore; Bryan L. Brown; Adam Comeaux; and defendant before the bar. Of these, Comeaux and the instant case involved the rape and murder of elderly white women by young black defendants. This Court did not reach the proportionality issue in Comeaux because it vacated the death sentence for other reasons. State v. Comeaux, 514 So.2d 84 (La.1987). The Court also voided the conviction and death sentence in Brown for reasons not relating to proportionality. State v. Brown, 496 So.2d 261 (La.1986). Defendant particularly rests his claim of disproportionality upon the fact that Kenneth Prestridge received a life sentence although he raped, beat and hanged his young victim. State v. Prestridge, 507 So.2d 1271 (La.App. 3d Cir.1987). He notes that, since the Prestridge trial and the community outrage with the sentence imposed, no jury in Rapides Parish has recommended a life sentence in a capital murder case. Defendant also compares himself to Prestridge in that both had drug and psychiatric problems and then asserts that “[e]xcept for the popularity of Winthrop Eaton’s victim and that Winthrop is black, these cases are factually indistinguishable.” The facts in the Prestridge opinion do not refer to that defendant’s drug or psychiatric problems. However, they do offer information on a point of substantial distinction between the two cases. Pres-tridge murdered his victim when she apparently resisted his sexual advances after having met him at a local gameroom and left with him to go riding in his car. Defendant, on the other hand, planned to murder his victim. In fact, in his statement and in Green’s testimony, there is a reference to an abortive attempt before the night of the murder. Defendant arrived at the church too late to accomplish his mission because Rev. Joyner had already left. The following night he took care to arrive earlier to be certain she would still be there. This fact alone may well explain the difference in penalty recommended by the jury. Moreover, apparent disparities in sentencing are an inevitable part of the criminal justice system. McCleskey v. Kemp, — U.S. -, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). A death sentence is not necessarily disproportionate because a defendant in a factually similar case received life imprisonment. State v. Willie, 436 So.2d 553 (La.1983); State v. Taylor, 422 So.2d 109 (La.1982). In fact, co-perpetrators of the same murder do not necessarily receive the same sentence. Compare, State v. Brogdon, 457 So.2d 616 (La.1984), with State v. Perritt, 430 So.2d 667 (La.1983); State v. Willie, 436 So.2d 553 (La.1983), with State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Sawyer, 422 So.2d 95 (La.1982), with State v. Lane, 414 So.2d 1223 (La.1982). Comparing defendant’s death sentence with those from other parishes indicates that other juries have recommended the death sentence for young men who kill elderly women whether or not they rape them. State v. Kyles, 513 So.2d 265 (La.1987); State v. Carmouche, 480 So.2d 728 (La.1985); State v. Fuller, 454 So.2d 119 (La.1984); State v. Celestine, 443 So.2d 1091 (La.1983); State v. Flowers, 441 So.2d 707 (La.1983); State v. Narcisse, 426 So.2d 118 (La.1983). Nor is it unusual for a jury to recommend the death penalty for a defendant who robs and kills his victim near the victim’s home or car. State v. Thompson, 516 So.2d 349 (La.1987); State v. Brown, 514 So.2d 99 (La.1987); State v. Kyles, supra; State v. James, 431 So.2d 399 (La.1983). Moreover, the jury found in this case the aggravating circumstance of aggravated rape of the victim in support of its recommendation of the death penalty. Defendant moved to exclude evidence of the alleged aggravated rape of the victim and the state’s use of this aggravating circumstance to argue in favor of the death penalty. He asserted there was no evidence the victim resisted to the utmost or that she was prevented from resisting. He, however, ignored the portion of the definition of aggravated rape referring to the victim being prevented from resisting the act because the offender is armed with a deadly weapon. La. R.S. 14:42 A(3). Certainly, a pipe heavy enough to fracture the victim’s skull is a deadly weapon as is a knife long enough to stab completely through her body. Moreover, the victim clearly could not resist after the defendant rendered her unconscious with blows by the pipe. Compared with Comeaux from Rapides Parish and compared with a number of cases from other parishes, the death sentence in this case is not disproportionate. Accordingly, this assignment lacks merit. DECREE For the reasons assigned, defendant’s conviction and sentence are affirmed for all purposes except that this judgment shall not serve as a condition precedent to execution as provided by La. R.S. 15:567 until (a) defendant fails to petition the United States Supreme Court timely for certiorari, (b) that court denies his petition for certio-rari, (c) having filed for and been denied certiorari defendant fails to petition the United States Supreme Court timely under their prevailing Rules for rehearing of denial of certiorari, or (d) that court denies his application for rehearing. CONVICTION AND SENTENCE AFFIRMED. . Defendant has abandoned three unargued assignments of error. Finding no merit in these three abandoned assignments, we will not discuss them specifically in this'opinion. . The victim was unmarried. . Eaton relies on State v. Morris, 245 La. 175, 157 So.2d 728 (La.1963), to support his claim that reversible error resulted from the introduction of the photographs. In Morris, this court held it was reversible error for the trial court to allow the introduction of photographs taken while an autopsy was in progress. The photographs showed the inner portions of the body after it had been cut open and depicted the coroner holding up different organs. The state’s avowed purpose for showing the photographs was to demonstrate the victim’s organs were healthy and death thus did not result from disease. We pointed out that these photographs were gruesome, ghastly and even revolting. They lacked real evidentiary value as the average layman would not know the difference between a healthy organ and a diseased one. The clearly relevant photographs in this case are quite a far cry from those in the Morris case. . In his brief, defendant makes no mention of either the stab wounds or those inflicted by the pipe. . We note here that the evidence clearly supports the other aggravating circumstances found by the jury, i.e., that the offense was committed while the offender was engaged in the perpetration of an armed robbery and in the perpetration of an aggravated rape. See infra regarding the rape and supra concerning robbery of the auto. . The only real question about the rape might have been whether defendant had intercourse with the victim while she was still alive or whether it occurred after her death. Nevertheless, the definition of rape as intercourse with a "person" who is not the spouse of the offender, committed without that "person’s” lawful consent would seem broad enough to encompass both situations. Moreover, in the context of first degree murder, this Court does not distinguish between the armed robbery which occurs before the killing of the victim and the robbery of the victim whom the defendant has already killed. State v. Kirkpatrick, 443 So.2d 546 (La.1983). In any event, the pathologist’s testimony clearly established that the victim was still alive at the time defendant had intercourse with her.

BYRNES, Judge. This is an appeal from district court judgments maintaining declinatory exceptions of lack of subject matter jurisdiction and peremptory exceptions of no cause and no right of action in a suit brought by Marvin Gorman and Marvin Gorman Ministries, Inc. to recover damages for defamation, libel, invasion of privacy, and intentional infliction of emotional distress from Jimmy Swaggart and thirteen other defendants. We reverse. The suit arose out of the actions and events leading up to and following the dismissal and/or resignation of Marvin Gor-man from his position as a minister of the Assemblies of God, a fundamentalist Christian religious body. Gorman was pastor of the First Assembly of God Church in New Orleans and a member of this hierarchical denomination’s national governing body. He was also the president and founder of Marvin Gorman Ministries, Inc., (MGM), a non-profit religious corporation which made extensive use of television as a means of raising money and carrying its message to the public. The petition alleges that Gorman’s separation from the Assemblies of God came about as the result of a July 15, 1986 confrontation between Gorman and defendant Jimmy Swaggart, another Assemblies of God minister. Other defendants present at this meeting were Michael Indest, pastor of Lakeview Christian Center, a New Orleans area Assemblies of God church, and a member of his congregation, William Tree-by, an attorney who was a member of the board of directors of Jimmy Swaggart Ministries, Inc., and had represented Swaggart in the past. During the course of the July 15 meeting, Swaggart allegedly accused Gorman of committing immoral acts with several women over a period of years. Gorman admitted one instance of immoral conduct which had occurred several years earlier, but denied the remainder of Swag-gart’s accusations and refused to comply with Swaggart’s demand that he make a full confession and seek rehabilitation within the Assemblies of God. The next day, July 16, 1986, Gorman decided to resign both as a minister and as a member of the Assemblies of God. His resignation was apparently accepted by the board of directors of his church and his decision was announced to his congregation that same evening. However, Swaggart and several of the other defendants did not consider Gorman’s resignation valid under the constitution and by-laws of the Assemblies of God and prepared a statement outlining in full their accusations against Gor-man. They caused this statement to be read to Gorman’s congregation on July 20, 1986, four days after his purported resignation. In the meantime, the Louisiana District Council of the Assemblies of God instituted disciplinary action against Gorman, notwithstanding his resignation from their church. Gorman did not participate in this proceeding which culminated in an August 4,1986 decision to recommend his dismissal as an Assemblies of God minister. The District Council’s recommendation was accepted by the General Council on August 14, 1986, and Gorman was formally dismissed. Apparently Gorman’s resignation and the decision of the General Council to dismiss him did not close the matter as far as Swaggart and his group were concerned. On August 20, 1986, Swaggart wrote to Cecil Janway, Superintendent for the Louisiana District Council of the Assemblies of God stating that he (Swaggart) had heard rumors that Janway believed (or was considering believing) Gorman’s denial of Swaggart’s accusations. Swaggart’s letter went on to state that Gorman’s version of his conduct was not true and that Swag-gart wanted Gorman’s case handled in the same way as any other minister’s. Swag-gart also said that he would take whatever steps were necessary to prevent a “coverup”. Since the Louisiana District Council had already reviewed the case, recommended dismissal, and had its recommendation accepted by the General Council, the purpose behind this letter is not clear. Discipline had already been pronounced and enforced on Gorman when Swaggart wrote the letter. Gorman had voluntarily left both the Assemblies of God church and its ministry more than a month earlier. Moreover, Swaggart’s accusations had already been made known to both the Louisiana District Council and General Council when those bodies were considering whether to dismiss Gorman. Be that as it may, on September 2, 1986, Janway read yet another statement to the congregation' of Gor-man’s former church which claimed among other things that: Established evidence and fact prove that Marvin E. Gorman engaged in multiple immoral incidents over a period of years which included adultery, illicit affairs, and unscriptural lascivious conduct with women who came to him for counseling. This occurred for many years, extending up to and including this year. I have a statement from a woman telling of his conduct with her this year which was unbecoming to a minister. The statement also criticized Gorman for presuming to tell his version of the incidents and asserted that: The manner in which members and supporters of First Assembly have been contacted directly and indirectly by Marvin E. Gorman demonstrates a blatant disregard for ministerial ethics. Such conflict and the misleading message being given shows an absence of Christian love. There has been a disregard for unity and harmony in the body of Christ and the local Assembly. The responsibility for confusion, discord, and strife coming from some media messages and the personal contacts lies at the feet of Marvin E. Gorman and individuals coming to his defense, presumably out of ignorance of the true facts. We find this tragically unscriptural, misleading and detrimental to the spiritual well being of all believers. Finally the September 2, 1986 letter stated that: A local television broadcast, last week, by Marvin E. Gorman, gave some the impression that myself and other district officials, as well as some national officials, of the Assemblies of God, had somehow endorsed or approved of his continued ministry. Any such implication is erroneous, unfounded, and without permission. There are national ministries recognized and endorsed by the Louisiana District Council and the General Council of the Assemblies of God. Marvin Gorman Ministries is not one of them now, and in fact has never been one of them. The petition alleges that this letter was written by Swaggart, Treeby and others, and that its circulation and content were approved by the Louisiana District Council and General Council of the Assemblies of God. More importantly, it is alleged that distribution of this statement was not confined to members of the Assemblies of God churches, but included pastors of churches of other denominations, the general public (both in Louisiana and throughout the United States), and foreign missionaries. The petition goes on to allege other acts and statements, which Gorman and MGM claim were made maliciously and with knowledge of their falsity, by various defendants to members of the media and private citizens. Gorman and MGM further claim that Swaggart and others caused MGM to lose television time by casting doubt on the financial, professional, and moral character of Gorman and his ministry. It is also alleged that the false stories concerning Gorman’s conduct were embroidered and repeated to individuals and financial institutions, causing them to withdraw from commitments to finance various aspects of MGM’s operations. Finally, it is alleged that Swaggart and others repeated the statements outlined above, as well as others accusing Gorman of embezzling church funds and being connected with the Mafia, to representatives of the news media in order to further publicize their content and to damage both Gorman and MGM. The petition was met with a number of exceptions including no cause of action, no right of action, and lack of subject-matter jurisdiction. As to Gorman individually, the exceptions of no cause and no right of action were either denied or dismissed as moot. These judgments were not appealed and need not concern us at this time. The exception of lack of subject-matter jurisdiction was maintained. This judgment forms the basis of Gorman’s appeal.' As to MGM, the exceptions of no cause and no right of action were maintained and MGM’s claims against all defendants dismissed. The exceptions were based in part on the argument that a corporation cannot be defamed, libeled or caused emotional distress and that, to the extent the petition sought such damages, it failed to state a cause or right of action. We begin by observing that this argument is not appropriately raised by the exception of no right of action. This exception is intended to question the plaintiffs right to bring the suit by challenging his legal interest in its subject matter. It raises the question of whether a remedy afforded by law can be invoked by a particular plaintiff. Henry v. State through Department of Health & Human Resources, 435 So.2d 565 (La.App. 3d Cir.1983), writ denied 441 So.2d 750 (La.1983). It does not raise the issue of whether the remedy exists, only who may assert it. A challenge to the existence of a particular remedy is more properly raised by the exception of no cause of action. That exception questions whether the law grants a remedy to anyone for the particular harm alleged in the petition, just as the exception of no right of action questions whether a particular plaintiff is a member of the class to whom the remedy is extended. Mercier v. Flugence, 408 So.2d 52 (La.App. 3d Cir.1981); Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979). In the present case, there is no doubt that if anyone had the right to bring an action for the damages MGM claimed in the petition, it was the corporation itself. It was therefore error to maintain the exceptions of no right of action as to MGM, and the judgments which have done so are reversed. The real issue as it relates to MGM is whether the law provides a remedy under the facts alleged in the petition — in other words, does Louisiana law provide corporations with a cause of action for defamation, libel, etc. and if so, does the petition of this corporation allege sufficient facts to state such a cause? In our opinion, it does. There were two main arguments presented in support of the exception of no cause of action. First, it was claimed that a corporation has no reputation in the personal sense and so cannot be defamed by non-business related statements. Second, it was argued that MGM could not bring suit based on allegedly defamatory statements made about Gorman butjnot about MGM. In our opinion, these arguments misconstrue the law and ignore the reality of this particular situation. This case is not like that of a business corporation seeking damages for statements made about the personal morality of one of its officers or a member of its board of directors in matters unrelated to business. Gorman’s personal reputation was one of MGM’s primary assets. By questioning his moral integrity, the integrity of the corporation itself was called into question. In many ways, defamation of Gor-man was defamation of his ministry. He was its principal spokesman. It was with him that the public identified. His reputation for spiritual and moral integrity was the cornerstone on which the ministry was built. Attacks on Gorman, which included allegations that he embezzled MGM funds, could (and allegedly did) decrease contributions to MGM and lessen the confidence of lenders in the stability and integrity of the ministry. Under these circumstances, we believe it was possible for MGM to be defamed by statements about Gorman even if MGM was not mentioned by name in those statements. For a discussion of this type of defamation see generally, W. Pros-ser, Handbook of the Law of Torts, Sec. Ill, p.745 (4th ed. 1971) and Restatement of Torts 2d, Sec. 564, comment (e). In our opinion, the reputation of Gor-man’s ministry was inextricably tied to his personal reputation. The unusual nature of this relationship distinguishes this case from Coulon v. Gaylord Broadcasting, 433 So.2d 429 (La.App. 4th Cir.1983), in which this court reaffirmed the general rule that an action for defamation is personal to the one defamed and cannot be asserted by one only indirectly affected. We therefore reject the argument that MGM cannot bring suit based on the defamatory statements purportedly made about Gorman. We likewise reject the argument that a non-profit corporation like MGM cannot bring an action for defamation. In Sec. 561(b) of the Restatement of Torts 2d, the American Law Institute endorses the position that a non-profit corporation which depends on the public for financial support can bring such an action if there is publication of defamatory matters which interfere with the corporation’s activities or tend to prejudice it in the public’s eye. The comments to this section expressly address the applicability of this rule to religious and charitable organizations. We have found no Louisiana case directly on point. However, a number of cases have held without discussion that corporations which operate for profit have a cause of action for defamation. See Economy Carpets Manufacturers & Distributors, Inc. v. Better Business Bureau of Baton Rouge, 361 So.2d 234 (La.App. 1st Cir.1978); WHC, Inc. v. Tri-State Road Boring, Inc., 468 So.2d 764 (La.App. 1st Cir.1985). We see no reason to treat non-profit corporations differently. The position adopted by the Restatement is both reasonable and fair and we therefore adopt it as our own. See also Prosser, supra at 745. However, as to MGM’s claim for intentional infliction of emotional distress and invasion of privacy, another rule controls. MGM has conceded that it cannot recover damages for intentional infliction of emotional distress, so we need not address this issue. As to the invasion of privacy question, the defendants successfully argued in the district court that MGM could not assert this cause of action because a corporation has no right of privacy except as to misappropriation of trade names and other matters not connected with the facts of this case. We agree. The tort of invasion of privacy appears to be directed at redressing the damage which an individual suffers when legally recognized elements of his right of privacy have been violated. The basis for recovery is the emotional injury which such violations cause. See generally Prosser, supra, Sec. 117, Restatement of Torts 2d, Sec. (1977). Being a fictional person, a corporation has no emotions to injure, and for this reason has traditionally been precluded from recovering damages based on invasion of privacy. We have been cited to no case allowing a corporation to recover on this basis and have found none in the course of our research. Moreover, MGM presents no serious or compelling argument in favor of changing this long standing rule, but directs its efforts primarily at the defamation claim. Were this the only basis on which Gorman and MGM sought to recover, we would affirm the granting of the exception of no cause of action, finding as a matter of law that a corporation may not recover damages for such injury. However, that was not the case. Recovery was sought on a number of grounds, including defamation. It is therefore necessary for us to consider the petition as a whole to determine if it was sufficient to withstand an exception of no cause of action. We begin by noting that for the purpose of deciding an exception of no cause of action the factual allegations of the petition are accepted as true. Moreover, any doubt as to the sufficiency of those allegations must be resolved in favor of the plaintiff. The exception can be maintained only when the facts alleged in the petition disclose no cause of action on any ground raised in the petition. Faciane v. Southern Shipbuilding Corp., 446 So.2d 770 (La.App. 4th Cir.1984). The reason for this rule is that the exception of no cause of action is intended to test the legal sufficiency of the petition itself, not the evidence which may or may not be available at trial to prove what it alleges. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975). To state a cause of action for defamation the following must be alleged: defamatory words; publication; falsity; malice (actual or implied); and injury. Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196 (La.1980); Wiggins v. Creary, 475 So.2d 780 (La.App. 1st Cir.1985), writ denied 478 So.2d 910 (La.1985); O’Dell v. Deich, 496 So.2d 1074 (La.App. 4th Cir.1986). Defamatory words are those which tend to expose a person to contempt, hatred or ridicule, or otherwise deprive that person of public confidence or injure him in his occupation or reputation. Bradford v. Murray, 467 So.2d 1297 (La.App. 4th Cir.1985), writ denied 469 So.2d 988 (La.1985); Freeman v. Cooper, 414 So.2d 355 (La.1982). Restatement of Torts 2d, Sec. 559 (1977). Statements imputing a crime to another are defamatory, Cangelosi v. Schwegmann, supra, as are statements imputing adultery or extramarital sexual relations. Moreau v. Brenan, 466 So.2d 572 (La.App. 5th Cir.1985); Goldsmith v. Unity Industrial Life Insurance and Sick Ben. Ass’n, 128 So. 182 (La.App. Orleans 1930). The publication element of a cause of action for defamation is met by alleging that the defamatory statement was made to someone other than the person defamed, even if it is only to a single person. Toomer v. Breaux, 146 So.2d 723 (La.App. 3d Cir.1962). Restatement of Torts 2d, Sec. 577 (1977). In this case it was alleged that Swaggart and the other defendants made a variety of statements, both oral and written, which falsely and maliciously accused Gorman of repeated acts of adultery and immoral conduct. The petition goes on to allege that the defendants falsely and maliciously accused Gorman of embezzling funds from his church and of having connections with the Mafia. It is also alleged (albeit in a vague and somewhat indirect manner) that the defendants impugned the credit and business practices of MGM to lenders and television stations. It is further alleged that these statements were made and publicized to a wide range of people both inside and outside the Assemblies of God. Construing these allegations liberally in favor of MGM, we find that they are adequate to state a cause of action for defamation against all defendants. Having reached this conclusion it is unnecessary to address the adequacy of the factual allegations relating to other causes of action in the petition. As long as a cause of action is stated as to any of the demands made in the petition, the entire petition must stand and the exception of no cause of action must be overruled. Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982); Haskins v. Clary, 346 So.2d 193 (La.1977); Elliott v. Dupuy, 135 So.2d 54 (La.1961). The trial court erred by holding otherwise and the judgments maintaining the exceptions of no cause of action as to MGM are hereby reversed. Some of the defendants argue that because they did not make the statements complained of they are not subject to liability and were properly dismissed. We disagree. The petition, as amended, alleges a conspiracy among all the defendants to defame and injure Gorman and MGM. While these allegations may be difficult to prove at trial, we are not concerned at this stage with proof — only with allegations. Under C.C. Art. 2324(A): He who conspires with another person to commit an intentional or willful act is answerable in solido with that person for the damage caused by such act. Having alleged a conspiracy among all defendants, Gorman and MGM are entitled to an opportunity to prove that allegation at a trial on the merits. See, Economy Carpets Manufacturers & Distributors Inc. v. Better Business Bureau of Baton Rouge, 333 So.2d 765 (La.App. 1st Cir.1976), writ denied 334 So.2d 428 (La.1976); Ardoyno v. Ungar, 352 So.2d 320 (La.App. 4th Cir.1977), writ denied 354 So.2d 210 (La.1978). We now turn to the difficult questions raised by the granting of the exception of lack of subject-matter jurisdiction. The trial court granted the exceptions based on its belief that the clause in the First Amendment of the United States Constitution which guarantees the free exercise of religion (and the jurisprudence interpreting that guarantee) precluded the exercise of civil jurisdiction over any of the matters raised in the petition. We disagree. The First Amendment of the United States Constitution and Article 1, Sec. 4 of the Louisiana Constitution both guarantee religious freedom and have been interpreted to forbid courts from interfering in the ecclesiastical matters of religious groups. The Serbian Eastern Orthodox Diocese for the U.S. and Canada v. Mili vojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Wilkerson v. Battiste, 393 So.2d 195 (La.App. 1st Cir.1980). This prohibition extends to matters of religious discipline, faith, or custom, as well as to the appointment and removal of ministers. Milivojevich, supra; Joiner v. Weeks, 383 So.2d 101 (La.App. 3d Cir.1980). However, there are limits to this prohibition, and in those cases where religious doctrine is not involved, or may be deferred to, civil courts retain the power to resolve disputes. LeBlanc v. Davis, 432 So.2d 239 (La.1983); Bourgeois v. Landrum, 396 So.2d 1275 (La.1981); Thomas v. Craig, 424 So.2d 1090 (La.App. 1st Cir.1982); Rose Hill Baptist Church v. Jones, 425 So.2d 348 (La.App. 3d Cir.1982); Wilkerson v. Battiste, supra. In our opinion, this is such a case. In spite of defendants’ arguments to the contrary, Gorman clearly is not disputing his dismissal as a minister. How could he when his voluntary resignation predated his formal dismissal? This fact alone distinguishes this case from many of those cited by defendants and lessens the impact of their holdings. More important, however, is the fact that Gorman’s suit alleges defamatory acts which occurred outside the Assemblies of God after he had resigned as a member of that denomination and been formally dismissed as one of its ministers. We have been presented with no plausible argument to justify these allegedly defamatory actions as part of internal church discipline. Moreover, even were we to find that the defendants’ post-dismissal statements were legitimately part of internal church discipline, there is a serious question as to whether the First Amendment’s protection would extend to those statements allegedly made to the press, the general public and pastors of other denominations. In our opinion, these allegations take the case beyond the scope of an internal religious matter. This court may be powerless to interpret the religious doctrine which defendants claim compelled them to publicize their accusations to other members of their church, however, this does not mean they can make those accusations outside their church and not face the legal consequences. Neither the United States or the Louisiana Constitution provides religious organizations or their members with unqualified blanket immunity from the civil consequences of potentially defamatory statements. To the extent that the Assemblies of God interprets scripture and its own internal rules to require disclosure of Swaggart’s accusations against Gorman to its members as part of the disciplinary process, civil courts may be precluded from interfering, even if the accusations appear to be false or defamatory. However, by taking their accusations outside their church, the defendants have also taken themselves outside the scope of the First Amendment’s protection and, to that extent, have exposed themselves to the jurisdiction of the civil courts. In an attempt to avoid this consequence the defendants contend that their church includes all Christians. This argument must be rejected. To begin with, it would allow the Assemblies of God to treat Christians who do not subscribe to their particular brand of Christianity as if they were members of the Assemblies of God, possibly violating the First Amendment rights of these non-Assemblies of God Christians. Moreover, as this case so vividly illustrates, there is a very real danger that this “universal church” argument would lead to claims that any religious decision by the Assemblies of God could be extended to any Christian. In addition, this argument ignores the fact that defendants’ accusations concerning Gorman and MGM were allegedly repeated to non-Christians, atheists and agnostics. Even the most liberal attitude toward freedom of religion cannot cloak the dissemination of defendants’ accusations to these groups in the mantle of the First Amendment. Given the allegations of broad publication of defamatory statements beyond the confines of the Assemblies of God, we find that the civil courts of Louisiana have subject matter jurisdiction over this suit and the trial court’s ruling to the contrary is reversed. The parameters of the relief which can be granted in the event that Gorman and MGM are successful are obviously fixed by the constitution and the law on qualified privileges. However, the task of defining these limits must be left to the district court and will depend in large part on the facts developed at trial. For the foregoing reasons, the judgments maintaining the exceptions of no cause and no right of action as to MGM and the exception of lack of subject matter jurisdiction as to Gorman are reversed and the case remanded to the district court for further proceedings consistent with this opinion and the law. The exception of no right of action, filed the day of oral argument by defendant Michael Indest, has been rendered moot by the substitution of the bankruptcy trustee as plaintiff in place of MGM & Gorman. REVERSED AND REMANDED.

MARC E. JOHNSON, Judge. 12This is Defendant, Tracy Common’s, second appeal. In his first appeal, Defendant challenged his underlying conviction for possession of MDMA and his multiple offender adjudication. We affirmed his conviction for possession of MDMA, but vacated his multiple offender adjudication and enhanced sentence. We also vacated Defendant’s original sentence and remanded the matter for resentencing. State v. Common, 10-996 (La.App. 5 Cir. 11/15/11); 78 So.3d 237, writ denied, 11-2779 (La.9/28/12); 98 So.3d 825. On remand, Defendant was resentenced to seven years imprisonment at hard labor. Additionally, on December 15, 2011, the State filed a new multiple offender bill of information alleging Defendant to be a third felony offender. The State dismissed the multiple bill on February 15, 2013, but filed a new one on the same date alleging Defendant to be a second felony offender. Defendant stipulated to the allegations in the multiple bill and was adjudicated a second felony offender. 13The trial court vacated Defendant’s original seven-year sentence and imposed an enhanced sentence of ten years imprisonment at hard labor. In this second appeal, Defendant challenges his multiple offender adjudication. He first argues that the State improperly used a prior conviction for an offense that is now a misdemeanor as the predicate offense for the multiple bill. The multiple bill was based on Defendant’s prior conviction for theft between $100.00 and $500.00, a violation of La. R.S. 14:67, in case number 96-1247 in the 24th Judicial District Court. At the time Defendant committed the theft in October 1995, La. R.S. 14:67(B)(2) provided that if a misappropriation or taking amounted to a value of $100.00 or more, but less than a value of $500.00, the offender was to be imprisoned, with or without hard labor, for not more than two years and/or fined not more than $2,000.00. Thus, it was a felony. In 1999, the Louisiana Legislature amended La. R.S. 14:67(B) and made theft of anything valued under $300 a misdemeanor. In 2010, the legislature again amended La. R.S. 14:67(B) and made theft of anything valued under $500 a misdemeanor, unless the offender had two previous theft convictions in which case the offense was a felony. Thus, at the time Defendant was multiple billed, his predicate conviction had been reclassified as a misdemeanor. The Louisiana Supreme Court has consistently held that “for multiple offender purposes, an offense which is subsequently reduced to a misdemeanor retains its felony status as of the time of commission[,]” and has rejected the argument that a felony which has been reduced to a misde meanor cannot serve to enhance a sentence. State v. Blackwell, 377 So.2d 110, 112 (La.1979); See also, State v. Jones, 11-649 (La.App. 4 Cir. 10/19/11); 76 So.3d 608, 615, writ denied, 11-2545 (La.3/30/12); 85 So.3d 116. Thus, we find no merit to Defendant’s argument. Defendant next contends that he was not properly advised of his rights under La. R.S. 15:529.1. While he admits that he was advised of some of his rights, he specifically claims that he was not advised that he had 15 days to file objections to the multiple bill and was not given the opportunity to avail himself of the 15 days. The State responds that Defendant did not need to be advised of the 15 days under La. R.S. 15:529.1(D)(l)(a) because he admitted to the allegations in the multiple bill. We agree. Louisiana Revised Statute 15:529.1(D)(l)(a) provides in part: Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b) of this Paragraph. (Emphasis added.) On the same date that the multiple bill was filed, Defendant admitted the allegations of the multiple bill, which alleged that he was a second felony offender. Defendant never denied the allegations, refused to answer, or remained silent in regards to the multiple bill. As such, the 15-day time period to file objections to the multiple bill was inapplicable, and the trial court was not required to advise Defendant of the 15 days. Under La. R.S. 15:529.1, a defendant must be advised of the specific allegations contained in the multiple bill and the right to a formal hearing. Implicit in this requirement is that the defendant be advised of his constitutional right to remain silent. State v. Walker, 01-348 (La.App. 5 Cir. 8/28/01); 795 So.2d 459, 462-63, writ denied, 01-2788 (La.10/4/02); 826 So.2d 1115. Because the record shows that Defendant was advised of the allegations contained in the multiple bill, his right to a hearing and his right to remain silent, we find Defendant was properly advised of his rights under La. R.S. 15:529.1. In Defendant’s first appeal, we conducted an error patent review of the record in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). Accordingly, in this second appeal, we have limited our error patent review to those proceedings on remand. State v. Lobo, 12-271 (La.App. 5 Cir. 12/18/12); 106 So.3d 1187, 1194, writ denied, 13-151 (La.6/21/13); 118 So.3d 409. We note that while the transcript reflects that the trial court vacated Defendant’s original sentence prior to imposing the enhanced sentence as required by La. R.S. 15:529.1(D)(3), the multiple bill commitment does not so reflect. Accordingly, we remand the matter for correction of the multiple bill commitment to accurately reflect that Defendant’s original sentence was vacated. After correction, the Clerk of Court is ordered to transmit the original of the multiple bill commitment to the officer in charge of the institution to which Defendant has been sentenced and the Department of 1 Correction’s Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06); 937 So.2d 846 (per curiam). DECREE For the foregoing reasons, Defendant’s multiple offender adjudication and enhanced sentence are affirmed. This case is remanded for correction of the multiple bill commitment. MULTIPLE OFFENDER ADJUDICATION AND ENHANCED SENTENCE AFFIRMED; COMMITMENT REMANDED FOR CORRECTION . The law in effect at the time of the commission of the offense is determinative of the applicable penalty. State v. Sugasti, 01-3407 (La.6/21/02); 820 So.2d 518, 520. . A felony is any crime for which an offender may be sentenced to death or imprisonment at hard labor. Any crime other than a felony is a misdemeanor. La. R.S. 14:2(A)(4). . See also La. R.S. 24:171, which provides, “[t]he repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.” . Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

JOHNSON, Chief Justice, would grant the writ application. hi find the lower courts erred in excluding plaintiffs expert from testifying regarding the appropriate standard of care for treatment of a diabetic foot. The lower courts applied the locality rule in La. R.S. 9:2794(A) to exclude the testimony of Dr. Willard Noyes, a Pennsylvania vascular surgeon. This court has long held that a specialist with knowledge of the requisite subject matter was qualified to testify regarding the standard of care in a general practitioner’s locale. See Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236, 1239; McLean v. Hunter, 495 So.2d 1298, 1302 (La.1986). Dr. Noyes specializes in vascular surgery. Moreover, Dr. Noyes testified that he worked for twelve years as a general practitioner with actual experience working in prisons. His surgeries have included amputations above and below the knee due to diabetic foot problems. Therefore, in my view, Dr. Noyes was 12adequately qualified to testify for the plaintiff regarding the standard of care applicable to treatment of diabetic foot complications. Moreover, this court has also recognized that where there is a uniform standard of practice, an expert having knowledge of such standard is qualified to testify, and that the testifying expert in this circumstance is not constrained by the need to have practiced in a similar community or locale and under similar circumstances. See Leyva, 643 So.2d at 1239; Piazza v. Behrman Chiropractic Clinic, Inc., 601 So.2d 1378, 1381 (La.1992). As Justice Lemmon recognized in his concurrence in Piazza, “the locality rule in medical malpractice cases is appropriately applied when there may be an acceptably different standard of care or skill for the particular treatment in the locality in which the health care provider practices, such as when the situation dictates the use of sophisticated equipment not available in the health care provider’s locale.” In this case, Mr. Berthelot suffered from diabetic neuropathy, resulting in an infection in his foot. I find plaintiff sufficiently established a uniform standard of care or skill for treatment of this medical condition. Such standard of treatment applies to all members of the medical profession, and the general practitioners who treated Mr. Berthelot in prison are no exception. Thus, I find application of a different local standard is not warranted by the circumstances of the locality. Accordingly, I would grant the plaintiffs writ application, finding the lower courts erred in their blanket application of the locality rule to disqualify Dr. Noyes from testifying. To require that plaintiffs expert practice in similar communities and under similar circumstances by being experienced in general medicine in the Louisiana prison system was error and prejudicial to the plaintiff, and is not supported by the jurisprudence of this state. . La. R.S 9:2794(A) provides, in pertinent part: A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq. ... the plaintiff shall have the burden of proving: (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.

In re Richard Tonry, et al.; Tonry II, Richard; Tonry, Brinson, and Glorioso, LLC; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 2009-03623, 2011-11237; to the Court of Appeal, Fourth Circuit, No. 2013-C-0951. Denied.

In re Price, Felix A.; applying for supervisory writs; Parish of Orleans, Criminal District Court, Div. “F”, No. 269-823. Denied.

BARRY, Judge. Walden Delatte appeals a judgment which permanently enjoins him from increasing the total area of his residence and carport beyond 2,310 square feet in violation of restrictive title covenants. In April, 1984, without prior Orleans Parish Levee Board approval, Delatte obtained a city permit to tear down a carport and build a garage on property he purchased in 1955. Apparently the City screened the application for zoning problems, but not for violations of title restrictions. After a complaint was lodged by Mrs. Lucas, president of the Lakeshore Property Owners Association, the City cancelled its permit (more than a year later) and Delatte was notified by the Levee Board that it must approve his plans before he can obtain a permit. Meanwhile, Delatte had laid a concrete slab two feet from the property line in order to prevent water from running onto his neighbor’s yard. This required a variance, but his application to the Levee Board was denied. He was told a permit to build on the property line would be approved. In July, 1986, without submitting amended plans to the Levee Board, Delatte obtained another city permit. The record contains an affidavit of Michael Centineo, Assistant Chief Building Inspector, which states that before 1977 the city did not require Levee Board approval, but after 1977 the city had no uniform policy. Mr. Centineo declared that since July, 1986 the City no longer requires Levee Board approval of building plans pertaining to Lake-shore Subdivision. On September 5, 1986 the Lakeshore Property Owners Association [Association] filed a petition for mandatory and injunc-tive relief against Delatte because the garage allegedly violated Section II and Section VI of his recorded title restrictions. Delatte filed an answer and reconven-tional demand against the Association and Mrs. Lucas, individually, alleging past discriminatory enforcement of the restrictions. His exceptions of prescription, no cause and/or no right of action and res judicata were overruled. The court issued a permanent injunction and dismissed the reconventional demand. Delatte specifies five errors: (1) the restrictions are not applicable because of li-berative prescription; (2) admission of his plot plan from a prior application to the Department of Safety and Permits is hearsay; (3) the trial court failed to consider the evidence and Civil District Court judgment in Lakeshore Property Owners’ Association v. Gerrets; (4) the restrictive covenants have been abandoned; (5) defense counsel was frequently interrupted and thus effectively prevented from presenting his case. Building restrictions, charges imposed by the owner of an immovable pursuant to a general plan governing building standards, specified uses and improvements, are sui generis real rights. La.C.C. Art. 775 (1978); Comments (c) and (d) to Article 775. See also Yiannopoulos, Civil Law Treatise, VOL. 2, § 161 (1980). Restrictive covenants are strictly construed against the grantor and liberally in favor of the grantee. All doubt is resolved in favor of the free and unrestricted use of property and against restricted use. Camelot Citizens Association v. Stevens, 329 So.2d 847 (La.App. 1st Cir.1976), writ denied 333 So.2d 242 (La.1976); Fuller v. Hill Properties, Inc., 259 So.2d 398 (La.App. 2d Cir.1972). Title restrictions may be enforced by mandatory and prohibitory injunctions. LeBlanc v. Terrebone, 432 So.2d 980 (La.App. 1st Cir.1983); Camelot Citizens Association v. Stevens, supra. Pursuant to La.C.C. Art. 779 (1978) the restrictions may be enforced without regard to the limitations of C.C.P. Art. 3601, which ordinarily requires a showing of irreparable injury before an injunction will issue. Vienna Bend Subdivision Homeowners Association v. Manning, 459 So.2d 1345 (La.App. 3rd Cir.1984); Chapman v. Fisher, 370 So.2d 162 (La.App. 3rd Cir.1979). A plaintiff seeking an injunction must establish a violation of a restriction and then the burden shifts to the defendant to prove termination or abandonment of that restriction. Cabibi v. Jones, 391 So.2d 461 (La.App. 4th Cir.1980). See also La.C.C. Arts. 780-782. Building restrictions applicable to Lake-shore Subdivision were recorded in 1951 by the owner/developer of the subdivision, the Orleans Parish Levee Board. Section II of the restrictions applies to all squares in Lakeshore Subdivision (“bounded by Lake Pontchartrain on the north, Orleans Canal on the east, Robert E. Lee Boulevard on the south and New Basin Canal on the west”) and provides in pertinent part: APPROVAL OF BUILDING PLANS Prior to beginning the construction of a residence, garage, fence or other structure, the owner shall submit detailed plans and specifications of the proposed building or structure to the Orleans Levee Board for written approval and no work shall be permitted on the building until such written approval is received and building permit obtained from the City of New Orleans. Section VI provides: LOT COVERAGE No residence shall cover more than thirty per cent (30%) of the total area of the building site. In computing the coverage, the ground floor area of a one story garage, whether attached or detached from dwelling, may be deducted from the building area, but not to exceed two hundred (200) square feet. Delatte argues that the trial court erred by allowing the Association to place into evidence the plot plan which was attached to his April 18,1984 application for a building permit. No survey was introduced. The original house plans of Delatte’s predecessor in title were admitted, but Connor Bailey, Chief Engineer of the Orleans Levee Board, testified there had been an addition to the rear wall, he did not know the exact dimensions, and without those figures he could not make any calculations. He could not identify the plot plan or sketch as the one submitted to the Levee Board with his application. On cross-examination Mr. Bailey used the figures on Delatte’s plan obtained by the Association’s counsel through a subpoena to the City Department of Safety and Permits. He utilized the figure of 2,051 square feet shown on the plan and added 570 feet for the proposed garage, a total of 2,621 square feet, minus 200 feet (Section VI), or a net 2,421 square feet. Under Section VI, 30% of the 7,700 square foot lot (70 feet X 110 feet) permitted 2,310 square feet. Mr. Bailey concluded that the application was 111 square feet over the allowable. During cross-examination Delatte identified his 1984 sketch which had already been admitted and stated the figures were correct. We therefore have no problem with its introduction. However, the Association’s use of the informal sketch to prove a violation does pose problems. In its petition the Association used the 1984 figure of 2,051 square feet for the existing residence, but added the 540 square foot proposed garage from Delatte’s sketch on his June 13, 1986 application. Thus, the petition alleges a 71 (it should have been 81) square foot violation. At trial Mr. Bailey used the 1984 sketch with a 570 square foot garage to find a 111 square foot violation. The trial court used 2,310 (30% of the total square footage of 7,700) in the judgment, but the Association concedes in brief 200 feet should be added to allow for a garage. Despite the confusion, we are satisfied the Association did prove a violation. The burden then shifted to Delatte to prove termination or abandonment of that restriction by a preponderance of the evidence. Delatte’s counsel attempted to introduce the entire Civil District Court record in Lakeshore Property Owners Association v. Gerrets (Signorelli), Division “B”, No. 604-451 in which judgment was rendered July 28,1976 against the Association which had attempted to enforce Section VI. Under La.R.S. 13:3723 during trial of any suit a party may request the introduction of any prior record or document in the district court where the trial is proceeding. Alleman v. Joffrion, 411 So.2d 1142 (La.App. 1st Cir.1982), writ denied 415 So. 2d 945 (La.1982). See also La.C.C.P. Arts. 1391-97; Mattox v. American Indemnity Company, 259 So.2d 79 (La.App. 4th Cir.1972). Allegations, admissions or confessions in pleadings in another suit are extrajudicial admissions and are admissible as evidence, but are not conclusive presumptions and do not operate as estoppel unless the party invoking them has been prejudiced by relying upon them. C.C. Art. 1853 (1984) (formerly Art. 2291 (1870)); Twillie v. H.B. Zachry Company, 380 So.2d 747 (La.App. 4th Cir.1980); D’Amico v. Canizaro, 226 So.2d 547 (La.App. 4th Cir.1969), affm’d 256 La. 801, 239 So.2d 339 (1970), quoting from Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (1913). See also Financial Corporation v. Estate of Cooley, 447 So.2d 594 (La.App. 3rd Cir.1984); Carson v. Central Progressive Bank, 432 So.2d 891 (La.App. 1st Cir.1983), writ denied 438 So.2d 578 (La.1983). Delatte’s counsel requested that the Ger-rets record be admitted. The Association was certainly aware of Gerrets since it was a litigant. Although Delatte argued that the same issues were present in Gerrets (Section VI restriction and a West Lake-shore property owner) the trial court (understandably confused as to whether a West or East lot was involved in Gerrets) erroneously held the record irrelevant and inadmissible. Delatte proffered the entire record. This Court has reviewed the Gerrets record except for 15 plaintiffs’ exhibits missing from the old record (which contains no transcript since it was not appealed). The Gerrets owned a lot in West Lakeshore Subdivision and their house plans were in violation of Section VI and an ordinance. The plans were changed, the Orleans Levee Board approved, and a building permit was issued. The Gerrets began construction according to the first plan which was 510 square feet in excess of Section VI of the restrictions (11 feet in the length of their carport). The Association sued for an injunction which was denied. The record contains the 1951 set of building restrictions pertaining to all of Lake-shore (East and West) along with a second set of restrictions registered July 28, 1955 which purportedly covers only East Lake-shore (“bounded by Lake Pontchartrain on the north, Orleans Canal on the east, Robert E. Lee Boulevard on the south and Canal Boulevard on the west”). The second set of restrictions do not contain Section VI and have no maximum coverage provision. The Gerrets argued that the original restrictions were never changed or amended to exclude East Lakeshore pursuant to La.C.C. Art. 780. Two sets of restrictions were of record. The Gerrets noted their carport would not violate East Lakeshore restrictions. By memorandum the Gerrets argued that hundreds of homes had been built in East Lakeshore under the probably invalid second set of restrictions without reference to a maximum coverage rule. All future construction in Lakeshore Subdivision (except for two vacant lots in the West) would occur without binding property owners to the 30% coverage restriction. They introduced the affidavit of Richard Najolia, an attorney for the Gerrets, who used Levee Board files and randomly sampled ten plans from East Lakeshore and found all in violation of the 30% rule. He was told by a Levee Board engineer that most of the houses in East Lakeshore (not two-story or on comer lots) would exceed 30% coverage. Importantly, counsel for the Gerrets and the Association stipulated that if Orleans Levee Board records had been produced they would show that more than 50% of the more than 300 houses in East Lakeshore Subdivision were built without compliance with the 30% maximum square footage. The stipulation further stated that testimony of Orleans Levee Board officers would affirm that the 30% rule was not applied in East Lakeshore. The Gerrets also noted three West Lake-shore violations: the Hirt residence at 7540 Canal Blvd. exceeded the allowable square footage by 589.64 square feet; 438 Topaz St. exceeded it by 964.11 square feet; and the Mayer property at 401 Emerald St. exceeded it by 1,689.07 square feet. The Gerrets argued those violations (in excess of their alleged violation) had been allowed without protest by the Association causing Section VI to be constructively abandoned. In a memo the Association commented on the confusion resulting from two sets of restrictions. It noted the trial court’s conclusion that the Levee Board (whether it intended or not) originally covered all the Lakeshore lots and its subsequent attempt to alter by imposing other restrictions (without the 30% rule) on the East half was not legally permissible. Assuming the correctness of that conclusion, the Association argued that all the lots in both East and West would be bound by the original restrictions including Section VI. If that is true, hundreds of houses in East Lakeshore were built in violation. The court ruled in favor of the Gerrets “insofar as plaintiffs [the Association] suit seeks to enforce Section VI of the title restrictions of Lakeshore Subdivision and to enforce compliance with a plan approved by the Orleans Levee Board.” We find Delatte’s attempted use of the Gerrets record was clearly relevant and should have been considered by the trial court since it involved the Association’s unsuccessful prior attempt to enforce Section VI against the owner of a West Lake-shore lot. We agree the affidavit in Gerrets would have been inadmissible as hearsay in the present case since there was no attempt to have Mr. Najolia present for cross-examination. See Stutts v. Humphries, 408 So.2d 940 (La.App. 2d Cir.1981). However, in Gerrets similar information was introduced by stipulation and should have been admissible here although not as a conclusive presumption. Failure to consider Gerrets constitutes reversible error. The trial court also erred by not allowing any questions or evidence relating to East Lake-shore or the second set of restrictions. De-latte’s proffered exhibits of the East Lake-shore map, title restrictions and the Ger-rets record were highly relevant to the issue of abandonment. Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When a particular restriction is abandoned the affected area is freed of that restriction only. La.C.C. Art. 782. In deciding whether there has been abandonment, the court must decide what the subdividers intended the scheme or plan to be and then inquire into alleged violations to determine whether the plan has been disrupted. East Parker Properties, Inc. v. Pelican Realty Co., 335 So.2d 466 (La.App. 1st Cir.1976), writ denied 338 So.2d 699 (La.1976). Whether acquiescence in the violations exist to the extent necessary to find abandonment and a waiver of the restriction depends upon the particular circumstances of each case. The alleged violation in question must be compared to those of similar character, proximity and notoriety. The number and duration of the total violations must be considered. Actual or constructive knowledge of the complaining property owner must be found before abandonment can be declared along with such substantial changes in the intended nature of the subdivision to the point of subverting the original scheme. Allen v. Forbess, 345 So.2d 950 (La.App. 2d Cir.1977). See also Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1960). Abandonment of a particular restriction is predicated on a sufficient number of violations of that restriction in relation to the number of lots affected by it. Where there have been frequent and substantial violations of the restriction without objection, the restriction is regarded as having been abandoned. Yiannopoulos, Real Rights: Limits of Contractual and Testamentary Freedom, 30 LA.L.REV. 44, 72-73 (1969); Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941); East Parker Properties, Inc. v. Pelican Realty Company, supra; Finn v. Murphy, 72 So.2d 358 (La.App.Orl.1954). We note the Association’s knowledge over many years of numerous violations and confusion resulting from two sets of restrictions, its failure to take action to clarify the situation, and continued utilization of Section VI over the eleven year period since the Gerrets judgment which ruled that Section VI was not enforceable. The problem of two sets of building restrictions on Lakeshore Subdivision must be faced and evidence relating to restrictions in East Lakeshore and their violation is relevant and militates toward a finding of abandonment. There are remaining problems relating to which restrictions apply in Lakeshore Subdivision and whether there has been abandonment of Section VI of the original set of restrictions. We must remand for consideration of all relevant evidence on the issue of abandonment. We pretermit discussion of the remaining specifications of error. The judgment is reversed and the case remanded for proceedings consistent with this opinion. REVERSED; REMANDED. SCHOTT and BYRNES, JJ., concur. . La.C.C. Art. 780 provides: Building restrictions terminate as provided in the act that establishes them. In the absence of such provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land area affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for at least fifteen years, or by agreement of both owners representing two-thirds of the land area affected and two-thirds of the owners of the land affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for more than ten years.

ARMSTRONG, Judge. Plaintiff, Nathan Newman, (“Newman”) appeals from the district court’s granting of defendant General Motors Corporation’s (“GMC”) motion for summary judgment. For the following reasons we affirm the judgment of the district court. On December 18, 1978, Newman was injured while in the employ of United Transport Company. Newman was loading automobiles onto a specialized double decker trailer when the lever he was bearing down on slipped out, causing him to fall against a curb, injuring his back. Newman filed a products liability action against GMC and the Williams Manufacturing Company, Inc. as the Manufacturers of the transport vehicle. GMC moved for summary judgment on the ground that it did not manufacture the allegedly defective ratchet assembly which caused Newman’s fall. On July 25, 1986, the trial court granted GMC’s motion for summary judgment. Newman appeals from this judgment. On appeal Newman contends that the trial court erred in dismissing GMC from the suit without requiring GMC to specifically show who manufactured the ratchet assembly. Newman’s contention is that the manufacturer of the ratchet is a disputed fact and it is the mover’s burden to resolve all disputed facts. LSA-C.C.P. Article 966 and 967 provide, respectively, that on a motion for summary judgment, the mover is entitled to judgment as a matter of law if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue of material fact. When a motion for summary judgment is made and supported the adverse party may not rest on his pleadings, but must show, by affida vits or otherwise, that there is a genuine issue for trial. The Louisiana Supreme Court articulated in Sanders v. Hercules Sheet Metal Inc., 385 So.2d 772 (La.1980), that the prerequisite for summary judgment is the presentation of sufficient evidence by the mover to show that there exists no genuine issue of material fact. On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Id. at 775. Affidavits alone can constitute sufficient evidence to resolve all issues of material fact, provided they are made on personal knowledge and set forth facts admissible in evidence. Duckworth v. Government Employees Ins. Co., 464 So.2d 907 (La.App. 4 Cir.1985). Seymour v. Transocean Marine, Inc., 421 So.2d 325 (La.App. 1 Cir.1982), Touro Infirmary v. Johnson, 377 So.2d 898 (La.App. 4 Cir.1979) writ denied 379 So.2d 10. In the instant case, GMC offered an employee’s affidavit which recites the following: Exhibits “1”, “2” and “3” show that the subject vehicle, as an incomplete cab and chassis, was not equipped with a trailer, including a tie bar or ratchet, and was not a trailer when it left the control of General Motors Corporation. General Motors Corporation does not design, manufacture or assemble tie bar or trailer ratchets for commercial sale. Pursuant to Article 967 of the Louisiana Code of Civil Procedure, once GMC sustained its burden, the burden then shifted to Newman as the party opposing the motion to controvert GMC’s facts or the sufficiency of the affidavit Failure to do so resulted in summary judgment rendered against him. See, Nemeroff v. Dolphin Swimming Pool Co., Inc., 306 So.2d 94 (La.App. 4 Cir.1974), Manzella v. Terrebonne Parish Police Jury, 432 So.2d 414 (La.App. 1 Cir.1983). Newman offered no evidence to controvert GMC’s affidavit but maintains that GMC’s affidavit is vague and ambiguous. We agree with the trial court’s finding that GMC’s affidavit and exhibits sufficiently resolve all issues of material fact. Newman also asserts that, because the vehicle carried a GMC label, GMC should be held liable to the plaintiff based on name recognition and cites as authority Penn v. Inferno Mfg. Corp., 199 So.2d 210 (La.App. 1 Cir.1967), Travelers Indemnity Co. v. Sears, Roebuck & Company, 256 So.2d 321 (La.App. 1 Cir.1971) and Marshall v. Beno Truck Equipment, 481 So.2d 1022 (La.App. 1 Cir.1985). These cases held a labeling manufacturer jointly liable with the “real” manufacturer for damages resulting from a defective product that carried its label. All of these cases are distinguishable from the facts before us. This is not a case where GMC as the manufacturer incorporated another’s product into its vehicle or held the vehicle out to be its own, together with component parts manufactured by another. The vehicle in question carried two labels, that of GMC and that of Williams Manufacturing. Williams Manufacturing’s label specifically stated that the vehicle had been altered, thereby notifying consumers GMC was not the sole manufacturer. GMC offers a correct statement of the law as it pertains to product manufacturers that have not manufactured or installed the component of the product alleged to be defective. A manufacturer can not be liable in a product liability claim where it shows that it did not manufacture or install the component of the product alleged to be defective. Landry v. Caldwell, 280 So.2d 231 (La.App. 1 Cir.1973), Thornhill v. Black, Sivalls & Bryson, Inc., 385 So.2d 336 (La.App. 1 Cir.1980), St. Pierre v. Gabel, 351 So.2d 821 (La.App. 1 Cir.1977), Stevens v. Rex Chainbelt, Inc., 349 So.2d 948 (La.App. 1 Cir.1977) writ denied 351 So.2d 164. For the foregoing reasons the judgment of the trial court is affirmed. AFFIRMED.

FORET, Judge. Plaintiff sought judgment against defendant for the sum of $830.65, the alleged amount due for delinquent rentals under a written lease of movables, together with reasonable attorney’s fees, interest and costs. Defendant answered, generally denying the allegations of plaintiff’s demand and urging, in addition, that the agreement was executed through error and mistake; the movable equipment leased was defective and did not serve the use for which it was hired; and, the plaintiff-lessor’s attempted disclaimer of warranty is null and void. Defendant-lessee also reconvened, asking for judgment declaring the lease agreement null and void. The trial court, in its written reasons for judgment, accurately summarized the pertinent record evidence as follows: “David Duhe, General Manager of Cajun, became interested in changing mobile telephone companies in December, 1983 because the air time in his old system had gotten to be too expensive. He contacted several companies offering the installation of mobile telephones, compared prices, and decided upon obtaining a mobile telephone from Roland’s Communications, Inc. Two of the primary reasons that David Duhe decided upon obtaining a mobile telephone from Roland’s Communications, Inc. were the promises of ‘unlimited air time’ and telephone communications while in New Orleans and Houma. “On December 14, 1983, David Duhe went to Roland’s Communications, Inc. where he was given several documents to sign regarding the installation of the telephone. These documents included the following: 1. True Lease Agreement and Application Number L0024 (P-1); 2. Equipment Acceptance Form (P-2); 3. Service Contract Agreement (P-3); 4. Shared Usage Agreement (D-2). “David Duhe did not know of the existence of Andrus until the documents were placed in front of him to sign and Andrus admitted never seeing Duhe prior to the trial. Representatives of Roland’s Communications, Inc. told Duhe that Andrus was the leasing company for the mobile telephones. “Andrus had earlier been approached by Roland Grimes, owner of Roland Communications, to buy and lease the mobile phone equipment to Roland’s customers. Roland also was part owner of Louisiana Coastal Communications which owned and operated five ‘specialized mobile radio’ (SMR) relay and trunking systems that provided the communications to the mobile phones. Andrus had put together the ‘package’ of forms for the lessee to sign. Roland was to get the customers for Andrus and after the Application (P-1) was signed by the lessee, Andrus would execute the ‘acceptance’, as he did in this case on December 14, 1983. “From the moment Roland’s Communications installed the mobile telephone, Duhe experienced problems with it. He had not driven off of the lot before Roland’s Communications had to change out the radio. Within the next several days, Roland’s Communications changed the headset, cradle, patchset, and changed the radio out again. Before December 25, 1983, approximately nine days from the first installation of the mobile telephone, Roland’s Communications changed out approximately four radios in Duhe’s truck. Thereafter, Duhe brought the mobile telephone back in to Roland’s Communication for repairs on a regular basis (D-4).” The trial court rendered judgment dismissing plaintiff’s demands concluding, for written reasons assigned, that: (a) Defendant-lessee failed to pay stipulated lease rentals totaling the sum of $830.65. (b) The agreement between plaintiff and defendant was a “true lease” agreement as opposed to a conditional sales agreement. (c) The leased equipment furnished by plaintiff-lessor to defendant-lessee was defective and did not serve the use for which it was hired. (d) Plaintiff-lessor’s attempted disclaimer of all warranties was of no avail and defendant-lessee was entitled to cancel the lease for breach of the lessor’s warranty. Plaintiff appealed. Defendant answered the appeal, urging error in the trial court’s failure to specifically declare the agreement null and void. The following issues are presented for review by the appeal and answer to the appeal. 1. Did the trial court err in refusing to declare the agreement between the parties null and void? 2. Did the trial court err in refusing to award plaintiff judgment for the rentals sued for and/or for the entire term of the lease considering the disclaimer of warranty provisions of the lease contract? 3. Did the trial court err in refusing to award plaintiff reasonable attorney’s fees and costs? WAS CONTRACT A CONDITIONAL SALE OR A LEASE? Cajun contends that the agreement between the parties is a conditional sales agreement which is void under our law. In the alternative, appellee contends that the agreement is null for want of consent and by reason of an error as to the principal cause for making the contract. The trial court concluded that the agreement between the parties, although a financed lease, was a “true lease” subject to the provision of Title IX of Book III of the Civil Code entitled “Of Lease.” In reaching this conclusion, the trial court reasoned as follows: “First, regarding the issue of whether or not the amended lease of movable statute applies to this dispute, we hold that it does. Section 7 of Act 592 is remedial in nature and applies to leases of movables in existence as of the effective date of the act, July 13, 1985. Duhe returned the property on July 24, 1985. Howard Trucking Company, Inc. v. Stassi, 485 So2d 915 (La.1986). Although the lease in question is a financed lease, it has ‘the same legal effect as true leases for purposes of Louisiana law’ and is subject to Title IX of Book III of the Civil Code entitled ‘Of Lease.’ LSA-R.S. 9:3310.” We agree that the contract in question is a lease agreement and not a conditional sales contract. The agreement between the parties contains the usual provisions which are ordinarily contained in leases of movables including the obligation on the part of the lessee to return the movables leased at the expiration of the term of the lease in the same condition as received, with allowance for wear and tear. Specifically, we observe that, although the total payments under the lease are substantially equivalent to the value of the leased property, under the agreement the lessee has neither the right nor the obligation to purchase the leased property at the termination of the lease. Absent such a provision, the agreement can hardly be considered a conditional sale transaction. Further, as noted by the trial court, financed leases, which were previously construed as conditional sales transactions, are now recognized as valid and enforceable in this State by the provisions of the Louisiana Lease of Movables Act, Act 592 of 1985, effective July 13, 1985, La.R.S. 9:3301 et seq., which act, by specific provision, is made retroactive so as to apply to leases in existence as of the effective date of the act. For these reasons, we conclude that the trial court did not err when it refused to declare the agreement null and void. The trial court determined that the mobile telephone equipment leased to Cajun contained numerous defects such that it did not serve the use for which it was hired. The record fully supports the trial court’s conclusion. Within nine days of the inception of lease, all or some portion of the mobile telephone equipment placed in Duhe’s vehicle was changed out four times. Thereafter, although repairs and maintenance were furnished to Cajun, the record makes clear that the frequent necessity for repairs and replacement of parts and the otherwise undependability of the equipment was such as to constitute a clear breach of the lessor’s warranty under La.C. C. art. 2692 et seq. Andrus concedes in brief to this Court that the leased equipment was plagued with mechanical problems. However, appellant urges that, despite this fact, he is entitled to recover the accrued and unpaid rentals considering the unambiguous provisions of the lease whereby the lessor disclaims any warranty, express, implied or statutory. The agreement between the parties contains the following pertinent provision: “Andrus does not warrant merchantability or fitness for any particular use of equipment and disclaims any other warranty, express, implied or statutory. Lease payment will be due despite dissatisfaction with equipment for any reason.” A like provision appears in a document entitled “Equipment Acceptance Form” which was signed by Cajun simultaneously with the lease agreement. The trial court determined that, in spite of Cajun’s agreement to the stipulation above quoted, Andrus was not entitled to recover the delinquent rental payments. When this matter was originally submitted to a panel of three, two members of the panel, on preliminary vote, decided to reverse the trial court judgment and to permit recovery by the plaintiffs of the full amount of the provisions of the lease. This writer disagreed, and the matter was resubmitted to a five-judge panel as required by law. The original majority opinion based its decision purely and simply on the Supreme Court case of Louisiana National Leasing Corp. v. ADF Service, Inc., 377 So.2d 92 (La.1979) . This opinion, in all humility and with full respect for the decisions of the Supreme Court, does not follow LNL-SC. We are comforted somewhat in our deviation from the Supreme Court decision by Supreme Court language found in State v. Anderson, 507 So.2d 212 (La.1987) wherein Justice Dennis infers at page 213 that a court of appeal need not blindly follow a Louisiana Supreme Court decision where there are “three well reasoned dissenting opinions ...” We note that in LNL-SC there were three dissents by regular members of the Court, and that in the four-judge majority, one of the justices was a retired judge sitting pro tempore. It appears inappropriate for us to indulge in a discussion of the merits of LNL-CA and the demerits of the rationale of LNL-SC. Suffice it to say that we believe that the rationale of LNL-CA should guide the courts of this State concerning the waiver of warranty in leases of both immovable and movable property. It is apparent that the jurisprudence concerning the waiver of warranty in lease cases is unsettled as is well illustrated by the 4-3 decision of the Supreme Court in LNL-SC. Some of the Supreme Court cases prior to LNL-SC are Tassin v. Slidell Mini Storage, 396 So.2d 1261 (La.1981) where a lessor was held liable for damages sustained by the lessee as a result of water entering a mini storage warehouse, despite the waiver of warranty; the Court held that the lessor knew or should have known of the defects in construction; in Brunies v. Police Jury of Parish of Jefferson, 237 La. 227, 110 So.2d 732 (1959), waiver of warranty was not given effect because as the Court stated, “We do not think the parties to this contract have contemplated, by this clause, [waiver of warranty] that the lessee should have assumed the risk and the consequences of vice and defects ... so radical as to warrant and justify its condemnation — a vice of such magnitude as to be utterly destructive of the intents and purposes of the lease and carrying with it as a direct consequence the dissolution of the lease.” In Brunies the building which was the subject of the lease had been condemned as being unsafe for occupancy. The lessor sought, nonetheless, to collect the rentals for the remainder of the term. The Supreme Court simply refused to enforce the waiver of warranty. There are many other cases discussing waiver of warranty in lease agreements, involving both movables and immovables, as well as a multitude of cases involving waiver of warranty in sales of movables. It might be beneficial at this time to briefly discuss doctrinal commentaries. In so doing, we will omit the reproduction of the footnotes which were found in the materials cited. The doctrinal writings seem to support the holding of LNL-CA. Professor Litvi-noff states that a lease is a synallagmatic or bilateral contract by which one party is obliged to give the enjoyment of a thing while the other is obliged to give the agreed price. C.C. art. 2669. In such bilateral contracts, the obligation of one party is the motivating cause of the obligation of the other party. Litvinoff, 7 La.Civil Law Treatise — Obligations, Book 2, § 132 (1975). The guarantee imposed by law on the lessor is analogous to the warranty of freedom from vices and defects imposed by C.C. art. 2476 upon the seller, breach of which gives rise to an action for redhibition under C.C. art. 2520. 2 Planiol, Treatise on the Civil Law, § 1786 (La.St.Law Inst. Trans.1959). To the same effect is the treatise by Malaurie and Aynes, Cours de Droit Civil, Les Contrats Speciaux, Edition Cujas, 1986, § 647, to the effect that, like all suppliers of a thing, a lessor owes the warranty against hidden vices. His obligation is analogous to that of the seller. While the warranty against hidden vices can be limited by a clause in the lease agreement, the warranty cannot be completely waived. As concerns the obligations of delivery and maintenance, while the parties are free to apportion financial expenses amongst themselves, they cannot exonerate the lessor of all obligations. Further, such clauses are null if the lessor knows of the hidden vice because he would then be in bad faith, except where he has informed the lessee of the vice. To the same general effect is language to be found in Traite Pratique de Droit Civil Francais by Planiol and Ripert, 2nd Ed., X, Contrats Civils, § 511 where it is observed that the Cour de Cassation permits parties to restrict the warranty, where it concerns acts of third parties or a vice of the thing. The authors go on to state that the high court’s reasoning may be, and this is very debatable, to say the least, that the obligation of the lessor to furnish peaceful enjoyment to the lessee of the thing leased, is not the essence of the contract. On the other hand, the warranty may not be waived in all cases and certainly may not be waived in cases where it lies within the power of the lessor to remedy the vice. The lessor owes the enjoyment of peaceful possession to the lessee throughout the duration of the lease ... It is the prolongation of his obligation of delivery [of the thing leased]. This obligation cannot be waived, for it is the essence of the lease. Considering the above comments and observations, we see then that the rationale of LNL-CA is in line with these scholarly commentaries when it said that: “... if one party fails in an obligation which is of the essence of the contract, there is no cause for an enforceable obligation on the other party. The obligation to give a thing free from vices and defects which render the thing unfit for its intended use is of the very essence of a contract of lease. and the lessor simply cannot be allowed to exact a waiver of the obligation of warranting fitness and guaranteeing freedom from vices and defects while retaining the right to collect rent for the entire 50-month term, even if the machine proves defective within a short period after commencement of the lease.” See LNL-CA, at page 375. We are also dissuaded to enforce the waiver of warranty in this case by an observation made in a recent law review article wherein the author, in discussing “the supplier’s demand for performance despite his own nonperformance” observes, in discussing jurisprudence in supply and nonperformance cases, that: “In Industralease [Industralease Automated & Scientific Equipment Corp. v. R.M.E. Enterprises, Inc., 58 A.D.2d 482, 396 N.Y.S.2d 427 (1977)], the garbage incinerators delivered to the lessee did not work from the moment of installation, yet the supplier sought to force the lessee to make the contractual payments, while asserting its disclaimer of implied warranties. It is difficult to see how a supplier could assert in good faith [citing La.C.C. art. 1901, which is now art. 1983] its disclaimer of warranty under such conditions. “It is doubtful however that the delivery of an incinerator that would not incinerate would be considered a satisfactory compliance by the supplier with his express engagements within the meaning of C.C. art. 2046, now 2013. That principle also would seem to provide relief for the lessee in United States Leasing Corp. v. Franklin Plaza Apartments, Inc., 65 Misc.2d 1082, 319 S.2d 531 (Civ.Ct.1971), which signed a lease for the rental of certain equipment, agreed to waive all implied warranties against the lessor, but never received one vital component of the equipment, without which the components delivered were useless. Likewise, the basement waterproofing contractor in Nosse, failed completely to perform his engagements when, as a result of his initial efforts, the consumer’s basement leaked more seriously than it previously had. The issue of the contractor’s disclaimer of implied and express warranties in such a case in Louisiana need not be reached.” Likewise, in the case at bar, it seems clear to us that the validity of the waiver of the expressed and implied warranties of the Civil Code articles governing sales and leases need not be reached where the thing sold or leased is totally and admittedly unfit for the purpose intended. In our view, to allow a lessor in such a ease to take advantage of a general disclaimer of warranty while, at the same time, requiring the lessee to perform his duty of paying the lease rentals for the entire duration of the lease, is simply against public policy. It seems to us that in such circumstances an error of law must be presumed, such as to invalidate the contract. Additionally, and even if we were to recognize, as did LNL-SC, the validity of the waiver of warranty in this case, which is for all intents and purposes the same as in LNL, then we are in full agreement with the dissent filed by Chief Justice Dixon in LNL-SC in that the fact that lessor makes no express or implied warranties does not constitute a waiver by lessee of the legally imposed warranty of quality. It is now axiomatic that the waiver of the implied warranty of quality must be clear and unambiguous. C.C. art. 2474; Prince v. Paretti Pontiac Co., 281 So.2d 112 (La.1973), and its progeny. Nowhere in the contract involved herein does David Duhe of Cajun Insulation sign anything to the effect that he personally or on behalf of Cajun Insulation waives all warranties, express or implied, and that Cajun Insulation specifically agreed to continue payment of rentals for the entire lease period despite the unfitness of the equipment which was the subject of the lease. The statements of disclaimer of warranty, and intention to collect rentals “no matter what” are simply declarations made by the lessor which were not expressly and without reserve agreed to by the lessee; in fact, there is no evidence in the agreement or at trial that the lessee was even made aware of the disclaimer, until it became obvious that the equipment was unfit and useless for the purpose intended, and Cajun discontinued the lease payments. For the foregoing reasons, the judgment of the trial court is reversed in part and affirmed in part; the lease agreement involved herein is cancelled, in its entirety; and plaintiffs suit is dismissed with prejudice. Costs at the trial level and on appeal are assessed against plaintiff, J.L. Andrus, d/b/a Andrus Equipment Company. REVERSED IN PART AND AFFIRMED IN PART. KING, J., concurs and assigns written reasons. GUIDRY, J., dissents and assigns written reasons. CULPEPPER, J. Pro Tern., dissents for the reasons assigned by GUIDRY. . For brevity’s sake, the Louisiana National Leasing Corporation case at the Supreme Court level will be referred to as LNL-SC and the Fourth Circuit Court of Appeal decision in the case, which can be found at 371 So.2d 373, will be referred to as LNL-CA. . We note that Section 7 of Act 592 of 1985 of the Louisiana Legislature, which has been incorporated into our statutes at R.S. 9:3301 et seq., while adopting comprehensive provisions of law regarding the leasing of movables, nowhere therein mentions waiver of the implied warranties of fitness set forth in the section of the Civil Code on sales and leases. On the contrary, § 3309 states that: "Except as specifically provided in this Chapter, true leases are subject to Title IX of Book III of the Civil Code entitled ‘Of Lease.’ ” . "Comme tous les fournisseurs d’une chose, le bailleur doit la garantie des vices caches ... Son obligation est analogue a celle du vendeur: seuls sont garantís les vices non apparents et inconnus due preneur, meme s’ils etaient incon-nus egalement du bailleur. Celui-ci s’exonere en prouvant que le dommage provient d’une cause etrangere ou d’un cas de force majeure. . "... la garantie des vices caches peut etre limitee par une clause du bail, sans pouvoir neanmoins etre completement exclue. Comme a l’egard des obligations de delivrance et d’en-tretien, les parties sont libres de repartir elles-memes leurs charges financieres, sans pouvoir exonerer le bailleur de toute obligation. En outre, ces clauses sont nuiles si le bailleur con-naissait le vice cache car il serait alors de mau-vaise foi, sauf s’il avait informe le locataire car le vice serait alors apparent." . “La Cour de cassation permet aux parties de restreindre la garantie, en ce qui concerne du moins le fait des tiers ou le vice de la chose. Elle en donne ce motif, peut-etre, a vrai dire, assez discutable, que 1’obligation pour le baill-eur de faire jouir paisiblement le preneur de la chose louee n’est pas de l’essence du contrat. Elle ne permet pas, en revanche, que la garantie soit supprimee dans tous les cas, et il a egalement ete decide que la clause d’exoneration des vices ne jouait pas lorsqu’il s’agissait d’un vice auquel le bailleur aurait pu porter remede.” . "Le bailleur doit d’abord faire jouir paisiblement le preneur pendant toute la duree du bail ... C’est le prolongement de son obligation de delivrance. Cette obligation ne peut etre ecar-tee, car elle est de l’essence du bail.” (NOTE: The translation of the French text is by the author of this opinion and may be less than perfect.) . Hersbergen, Unconscionability: The Approach of the Louisiana Civil Code, 43 La.L.R. 1315 (July, 1983), at page 1353. . Hersbergen, supra, page 1333.

In re Lafayette Insurance Company;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2007-5518; to the Court of Appeal, Third Circuit, No. 13-476. Denied.