
    Vernon L. DELLINGER, Plaintiff-Appellee, v. ADMINISTRATOR OF DIVISION OF EMPLOYMENT SECURITY OF DEPARTMENT OF LABOR, State of Louisiana, and Dealer’s Transport Company, (Dealer’s Transport Company) Defendant-Appellant.
    No. 10133.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 13, 1964.
    Rehearing Denied April 13, 1964.
    
      Ford E. Stinson, Benton, for Dealer’s Transport Co.
    James E. Bookter, Bossier City, for plaintiff-appellee.
    Melvin L. Bellar, Baton Rouge, for defendant-appellee.
    Before HARDY, GLADNEY and AYRES, JJ.
   HARDY, Judge.

This action involves a judicial review of a claim for unemployment compensation and claimant’s employer appeals from judgment ordering payment of benefits.

The first issue presented by appellant is based upon an exception to the jurisdiction ratione materiae and ratione personae. It is noted that this plea to the jurisdiction was filed by the Administrator of the Division of Employment Security, and, according to the brief before this court, it has been abandoned by the Administrator and is not being urged nor appealed.

On the merits the usual questions are presented, that is, whether-the record of the hearings before the administrative tribunals is sufficient to sustain a conclusion of misconduct which would disqualify the claimant from benefits under the statute. The particular act of misconduct relied upon in the instant case rests upon the charge that the employee sustained a minor accident to his employer’s motor vehicle equipment and thereafter failed to comply with regulations requiring a report of such accidents.

An examination of the record made up for the administrative agency discloses that the testimony of the only witness on behalf of the employer was based upon information taken from the records of the company and there is nothing to show that he had any personal knowledge of the facts. In this respect, the testimony must be regarded as pure hearsay. On the other hand, the testimony of the claimant, which is un-contradicted, would exonerate him from any misconduct of a nature and degree which would disqualify him from benefits.

It is our finding that the assignment of misconduct was not supported by legally competent evidence and the disqualification of claimant was therefore properly set aside; King v. Brown (2nd Circuit, 1959), 115 So.2d 405; Huddleston v. Brown (2nd Circuit, 1960), 124 So.2d 225; Washington v. Administrator (2nd Circuit, 1960), 125 So.2d 27.

We think it is also pertinent to observe that counsel for the Administrator, who appears before this court in the capacity of appellee, has filed brief in support of the judgment of the district court.

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.

On Application for Rehearing

PER CURIAM.

In application for rehearing counsel for plaintiff’s employer, defendant-appellant, complains that the court erred in stating in its original judgment that the issue presented by an exception to the jurisdiction ra-tione materiae ánd ratione personae had been abandoned. The application and brief in support thereof call attention to the fact that an identical plea to the jurisdiction was filed on behalf of plaintiff’s employer.

While it is true that such a plea was filed, the minutes of the court contained in the record disclose that the case was called, tried and taken under advisement by the district court on July 26, 1963. The exception to the jurisdiction on behalf of the employer was not filed until September 13, 1963, and was overruled on the same day on the ground that it was not timely filed. The record further shows that judgment was rendered on September 13, 1963.

Since we were fully in accord with the action taken by the district court in overruling the exception, it being clear that this pleading was not timely filed under the provisions of LSA-C.C.P. Article 928, we pretermitted consideration thereof

The application for rehearing is denied.  