This is a suit under the Workmen’s Compensation Act. Plaintiff alleged that his right leg was broken in two places between the ankle joint and knee and his left leg bruised, skinned and otherwise injured on October 30, 1926, in an accident growing out of and in the course of his employment by F. & M. Schwartz in a hazardous occupation in Caddo parish, Louisiana, in consequence of which he was permanently totally disabled® to do work of any reasonable character, and that at the time of the accident he was earning a weekly wage of $27.50.
He further alleged that by contract between his employer and defendant Southern Surety Company the latter was obligated to indemnify the former against liability to the employees of the former arising under the Workmen’s Compensation Act, and that in pursuance of such obligation the defendant had paid him compensation at the rate of $17.06 a week until he had received from it a total amount of $647.06 and that defendant had refused to pay him anything further.
And he prayed for judgment against defendant for compensation of $17.06 a week during his disability, not to exceed 400 weeks, from and after the date of the accident, with legal interest on each installment from its maturity until ¡paid, less a credit of $647.06 already paid him by defendant.
The defendant filed an exception of no right and no cause of action, which was overruled, and thereupon the defendant, reserving its rights under its exception, answered, denying liability and alleging that defendant was no longer disabled and that it had paid him compensation as long as he was disabled and that he was not entitled to any further compensation.
On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit and he has appealed.
OPINION
The exception of no right and no cause of action was based upon the theory that an employee is not entitled to sue the indemnitor of his employer in advance of determination of the employer’s liability. The exception was not well founded and was properly overruled.
*395Wyatt v. Finley, 167 La. 161, 118 So. 874; Woods v. U. S. Fidelity & G. Co., 167 La. 411, 119 So. 409.
The evidence on the question as to whether plaintiff had entirely recovered from his disability was conflicting.
Doctors A. J. Thomas and C. H. Potts gave it as their professional opinion that plaintiff was yet unable to do work of any reasonable character.
Doctors M. L. Adair, J. M. Bodenheimer and H. A. Durham gave it as their professional opinion that plaintiff had entirely recovered from his injuries and was able to do work of any reasonable character.
It would serve no useful purpose to analyze the testimony. Suffice it to say that the trial judge, who heard and saw the witnesses testify accepted as correct the opinion of the three last named physicians, and we also accept their conclusions as correct.
The findings of fact of a trial court will not be reversed on appeal unless manifestly erroneous.
Kingsley v. Schnell, 9 La. App. 325.
Besides this, the burden of making out his case by a preponderance of the evidence rested on plaintiff and he did not discharge the burden.
The testimony of Mrs. L. J. Mulcare is positive to the effect' that plaintiff is still unable to do work of any reasonable character, and we do not doubt that she is of that opinion, and the testimony of plaintiff and his wife also is to the same effect; but the testimony of these lay witnesses must yield to the physical facts that shortly before the trial plaintiff was able to walk and did walk a distance of about three miles — from Broadmoor to the office of his attorney in the Ricou-Brewster building, in Shreveport, Louisiana, and on the day of trial had walked from the levee to the courthouse — a distance of five blocks' — and that neither his leg nor ankle showed any sign of swelling when he was on the witness stand.
Under the law and the evidence the judgment appealed from is correct and accordingly it is affirmed.