text:
    230 La. 432
    SECOND CHURCH OF CHRIST, SCIENTIST, v. Charles B. SPENCER et al.
    No. 42321.
    Supreme Court of Louisiana.
    June 11, 1956.

      Dart, Guidry & Dart; Norman,R. Tilden,-New Orleans, for plaintiff-appellant and plaintiff-appellee.
    Adams & Reese, Robert E. LeCorgne, Jr., New Orleans, for defendant-appellant.
    Alfred C. Kammer; Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, of counsel, for defendant-appellee.
   SIMON, Justice.

The Second Church of Christ, Scientist, a nonprofit religious corporation organized under-the laws of Louisiana and domiciled in the city of New Orleans, instituted this suit against defendant Charles B. Spencer, individually, and against defendant Olympia Roofing Company, Inc., a corporation organized under the laws of Louisiana and domiciled in the city of New Orleans, in solido, for damages in the sum of $5,837, the cost of repairing plaintiff’s church organ, allegedly damaged as the result of the failure of defendants to protect it against rain during the course of extensive repairs made by them on the church premises under their respective contracts.

Defendant Spencer denied liability ’ arid alleged that defendant Olympia was solely liable for having negligently failed to take proper precautions to prevent rain from entering the interior of the church building while said Olympia was reconstructing the roof. Defendant Spencer also filed a third party complaint praying that in the event an adverse judgment should be rendered against him that defendant Olympia be condemned to pay to him a like amount, together with interest and costs.

Upon its exception of no right or cause of action being overruled, Olympia answered and denied liability. Exceptions of no right or cause of action, prescription, and an answer denying liability were filed by defendant Olympia to the third-party complaint.

After trial on the merits the district court rendered judgment in favor of plaintiff and against defendant Spencer in the sum of $5,837, together with interest from judicial demand until paid, reserving to the plaintiff any claim it might have against the surety on the building contract between plaintiff and defendant Spencer. Defendant Olympia was absolved from all liability.

Appeals have been perfected by plaintiff and by Spencer, the former contending that it is entitled to a judgment in solido against both defendants; the latter contending that the damages complained of were caused solely through the negligence of the employees of Olympia and that therefore the judgment of the lower court should be reversed so as to cast Olympia alone.

There is no dispute as to the nature and extent of the damage to the organ, its cause or the cost of the repairs, the sole issue being whether either or both defendants are responsible therefor.

Hence we see that the issue involves no principle of law but one purely of fact. Under such circumstances, an analytical disposition of the facts and the conclusion reached by the trial judge should not be disturbed in the absence of manifest error. Holmes v. Triggs, 214 La. 1083, 39 So.2d 739; Nalty v. Nalty, 222 La. 911, 64 So.2d 216; Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367; Olivier v. Abunza, 226 La. 456, 76 So.2d 528; McMahon v. Manufacturers Casualty Insurance Co., 227 La. 777, 80 So.2d 405; Sunseri v. Westbank Motors, 228 La. 370, 82 So.2d 43.

The controlling facts disclosed by the record are as follows:

On May 25, 1953, plaintiff and defendant Spencer entered into a general contract for the remodeling and renovation of plaintiff’s 'church edifice. In addition to the terms of the agreement, its general conditions, drawings and specifications, the contract further stipulated that,

“The contractor shall continuously maintain adequate protection of all his work from damage, and shall protect the owner’s property from injury or loss arising in connection with this contract.”

In accordance with the plans and specifications for thé installation- of the roof, Spencef subcontracted with Olympia, the latter agreeing to be bound to Spencer by all of the terms of the agreement between him and the owner and to assume toward Spencer all the contractual obligations flowing in favor of the plaintiff;

Pursuant to the general contract Spencer commenced work on the church edifice on June 9, 1953. He removed the skylight forming a part of the roof, an operation requiring about three days. As a result thereof, this area was left open and unprotected for approximately thirty hours before the joists were installed across the open space and wooden sheathing laid in preparation for the installation of the roof by Olympia.

In preparing the skylight area for the roofers, Spencer left an opening approximately 10' x 10' in about the center of the roof to afford a means through which roofing materials and equipment could be raised and lowered. Two openings were also cut for use by the airconditioning contractor. The removal of the skylight and the installation of the joists and sheathing was completed, though not watertight, during the week prior to the entrance on the premises by Olympia.

On August 3, Olympia delivered its roofing materials to the job. It began laying the roof on August 4 and allegedly completed a watertight roof on August 11, 1953.

On August 25 the damaged condition of the organ and the organ chamber was discovered. The center section of the ceiling of the chamber was soaking wet and had fallen. The back wall of the building, which is the back wall of the organ chamber, was wet, and water dropped therefrom and from the area over the entrance to the doorway. There was considerable water on the floor. There was an accumulation of water that damaged and affected the organ proper, necessitating the extensive repairs made.

Testimony of the witnesses as well as local climatological data issued by the U. S. Department of Commerce, Weather Bureau, established that during the period from August 4 to August 11 there was no rainfall. On August 3, 1953, there was rainfall of .04" at 4 p. m., and .01" at 7 p. m. On August 12, 1953, there was a trace of rainfall at 10 a. m.; 1.98", or almost 2", at 1 p. m., and .04" at 2 p. m.

Hence we see that the issue is whether a waterproof roof was completed immediately prior to the torrential rain on August 12, 1953.

Olympia contends that the so-called felt or roofing paper had been laid, the flashing incidental to the laying of the felt was completed, and the roof made waterproof during the period from August 4 to August 11, leaving to be done only the final spread of tar and gravel thereon. Spencer contends, however, that the roofing was not complete and waterproof on that date, basing his contention on the fact that Olympia’s employees worked on the premises subsequent to that date.

It is undisputed that the roof in question had a slope of about two feet, being two feet higher in the'front than in the back of the building and that the roofing operation was started on the higher part of the roof and gradually descended to the lower part where there was a cricket to divert any water running down on the roof to side drain pipes.

That part of the church organ which was damaged by rainwater was located in a small room at the rear of the church and under that area where the roof cricket was situated.

During the renovation and remodeling of the church edifice, the organ console was removed from the premises; however, the main portion of the church organ, together with its component parts, remainded in its regular place in the organ chamber, in the room in the back of the church. In order to protect the many delicately adjusted pipes located therein, this room was kept locked at all times, access thereto being available only to the porter of the church and to the two men employed on a monthly basis by the church to keep the organ in repair. No protection other than the locking of doors was afforded the chamber room during the operation of the contractors herein.

The record establishes that Emile Rive and Adolph Rive, Jr., were retained by plaintiff to keep its organ in good repair. Their qualifications as expert organ builders and repairers are unassailable. Their testimony establishes the fact that on June 17 the condition of the organ chamber was good. The room was dry, and all of the pipes were in good condition. The organ chamber was inspected on or about July 20, 1953 by Adolph Rive alone who irrefutably testified that none of the damage herein complained of existed on that date.

Defendant Olympia denied having any knowledge of the organ chamber and alleged that the general contractor failed to inform him of its presence or location. The general contractor also denied knowledge of the existence of the organ chamber. The superintendent of the general contractor admitted that he could have protected the organ loft with tarpaulin had he known of its existence. He admitted having seen the console and the echo organ but testified he did not know of the existence of the organ loft containing the pipes and other organ complements.

It is inconceivable to us that a general contractor who undertakes to repair and remodel a church should represent that a mere locked door prevented him from knowing of the existence of the organ pipes in the organ room. Under the circumstances, we are constrained to hold that the general contractor was charged with knowledge of the existence of the organ, and the failure to protect it from water and any other damage during the entire period of the remodeling and renovation was negligence on the part of the general contractor.

Plaintiff contends that a great deal of the damage was caused on August 12, 1953, when almost two inches of rain fell in about one hour and that the damage caused on that day was also due to the negligence of the subcontractor, Olympia.

Plaintiff further contends that though the laying of the paper on the roof .was complete on August 11, there yet remained to be done the final flashing to the rear wall and to the side walls with reference to the last unit of the roof. Plaintiff contends that the final unit of roofing paper had simply been tucked under an old counterflashing and afforded no protection against the heavy strain from the water on the roof over the organ chamber during the two-inch rainfall in one hour on August 12; that the water rushed back to the rear of the roof and was precipitated against the rear wall and forced over and under the paper. Plaintiff points to the fact that the water damage to the ceiling of the organ chamber was more to the rear of the organ room than to the front, the rear wall of the organ chamber being severely damaged or wetted.

Defendant Spencer also contends that the water damage suffered by plaintiff was caused by the negligence of Olympia. lie contends that the final unit of the roof was not made waterproof but was tucked under an old counterflashing which was not sufficient to keep out the rush of water caused by the two-inch downpour on August 12, 1953. Spencer also points to the location of the water damage and contends that had the water entered the premises through the opening in the skylight, it would have fallen straight down at a safe distance from the organ room and could not have run on the inside surface of or on the ceiling of the organ room because of the several joists which had been installed and which would have acted as baffles and from which the water would have dripped to the floor beneath.

Olympia contends that the roofing laid each day was flashed and made watertight each day and that on August 11 a watertight roof had been laid, leaving only tar and gravel to be spread thereon after August 11; that there was no rainfall during the time when the roofers laid down a water-tight roof. The supervisors of the roofers testified that generally in laying a roof the felt or roofing paper is turned up against the wall and a membrane flashing is immediately applied thereto by the roofers, followed by a metal counterflashing applied by metal mechanics; that the roof is then covered with tar and gravel to create a more durable and longer-existing waterproof condition. In the instant case, at the lower end of the roof there was counter-flashing already existing on the wall. He admitted that the roofers ran the roofing up and under the said counterflashing and that the tar and gravel had yet to be spread over the roof.

The supervisor was not present when the final flashing was applied to the back wall. One of the roofers testified that in roofing operations, in the event roofing laid has not been completely flashed at the end of the day, then temporary provisions are made to make the last unit laid waterproof. However, in the instant case, independent recollection as to whether the last unit of the roof laid was flashed is conspicuously absent. All parties seem to be aware of the fact that the final unit was tucked under the old counterflashing on the back wall.

We are impressed with the theory that most of the damage occurred by reason of the rainfall on August 12, and that the heavy rain falling on the roof and rushing back to the rear thereof was precipitated against the rear wall and forced over and under the paper tucked under the counter-flashing. It is obvious that the volume of water rushing to the rear of the roof accumulated against the rear wall and rose high enough to go over the turned up tar paper and seep down the wall to the ceiling and the sides of the organ chamber. The paper having simply been tucked up and under the old counterflashirig could certainly afford no protection against water forced over the top of the paper.

In reference to the third-party complaint filed by defendant Spencer wherein he prays that in the event an adverse judgment should be rendered against him that defendant Olympia be condemned to pay to him a like amount, together with interest and costs, having concluded that under the facts presented herein the general contractor, Spencer, and the subcontractor, Olympia, being engaged in a concert of action, a common unity of purpose and design, are joint tort-feasors, both chargeable with the negligence in which this claim in damages finds its root, the third-party complaint must necessarily fall.

Accordingly, for the reasons assigned, the judgment of the district court is reversed and set aside insofar as it dismisses all claims against Olympia Roofing Company, Inc.; and it is now ordered, adjudged and decreed that the said Olympia Roofing Company, Inc., be cast in judgment in solido with defendant Charles B. Spencer.

It is further ordered, adjudged and decreed that the third-party complaint filed by defendant Charles B. Spencer against his co-defendant, Olympia Roofing Company, Inc., be, and the same is dismissed; in all other. respects the judgment of the trial court is affirmed; all costs to be paid by defendants.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    230 La. 445
    Mrs. Elvira ABUNZA, wife of Charles N. Olivier, v. Charles Numa OLIVIER.
    No. 42631.
    Supreme Court of Louisiana.
    June 11, 1956.

      Sam Monk Zelden, Max Zelden, New Orleans, for plaintiff, appellant and ap-pellee.
    John E. Fleury, Gretna, for defendant-appellee and appellant.
   McCALEB, Justice.

This appeal involves the partition and settlement of the community of acquets and gains formerly existing between plaintiff and defendant.

On February 6, 1952, plaintiff filed suit against her husband for a separation from bed and board and obtained judgment on July 1, 1952, the parties being referred to Rudolph M. McBride, Notary Public, to effect a partition of the community.

While the settlement of the community was pending, the husband sued for and was granted an absolute divorce on the ground that the parties had been living separate and apart for more than two years, which decree was affirmed by this Court on November 8, 1954. See Olivier v. Abunza, 226 La. 456, 76 So.2d 528.

Evidently, the divorce action brought by the husband effected a delay in the settlement of the community, for it was not until February 4, 1955, that the notary, Mr. McBride, after hearing much testimony, filed his report to the judge in which he set forth his opinion as to the amount due each spouse. Counsel for the opposing litigants had, by stipulation, agreed upon the status of many of the items listed in the notary’s report. However, nine of the items were seriously disputed and oppositions to the report were filed by both parties. After hearing evidence and argument on these oppositions, the trial judge dismissed all objections and approved and homologated the notary’s report in its entirety, fixing the attorneys’ fees at $1,500 each, to be paid out of the community funds. Both plaintiff and defendant have appealed from this judgment.

The first disputed item (Item No. 6 in the notary’s report) concerns the succession of defendant’s mother, Mrs. Joseph G. Olivier, which was unconditionally accepted by defendant in January of 1936, the other heirs renouncing in his favor. The succession was insolvent, with liabilities in the amount of $8,800.10 which defendant concedes represented his separate indebtedness. The notary found that of this amount $5,334.83 had been paid with community funds and that, accordingly, defendant’s separate estate was indebted to the community in that sum.

Plaintiff maintains that this figure should be increased by $3,000, representing the face value of a note executed by defendant’s mother and held by the late Mrs. George A. Hero, defendant’s aunt. Defendant testified that the note was never paid at all, having been forgiven by Mrs. Hero prior to her death and destroyed by her in his presence. Counsel for plaintiff argue that defendant’s testimony should be disregarded, since it involves a declaration against interest of a deceased person, which is the weakest kind of evidence.

The contention is without merit. While mindful of the fact that a. declaration against interest by a deceased is the weakest kind of testimony, it is admissible and does have some probative value. It .must, of course, be scrutinized with great care, since it can be so easily fabricated, but this concerns the weight of the proof rather than its competency. The notary and the trial judge were convinced of the truthfulness of defendant’s testimony in this regard and we think they were justified in doing so. The record clearly establishes Mrs. Hero’s fondness for defendant and her many benefactions to him. Furthermore, the burden was on plaintiff to prove (1) that the $3,000 debt was actually paid and (2) that community funds were used for that purpose. No effort whatever was made by her to carry this burden.

Item No. 7 has to do with a fee of $8,000 received by defendant as executor of the succession of Mrs. George A. Hero. The succession was opened August 20, 1951, and defendant received a check for his executor’s fee on October 31, 1951, which was cashed the same day. Defendant was not discharged as executor until June 17, 1953.

The lower court found this $8,000 to be a community asset but allowed a credit of $3,977.31, this being the amount of federal and state income taxes paid by defendant in 1951, allocable to the $8,000 fee. It was thus concluded that the community was entitled to the sum of $4,022.69.

Both parties oppose this finding. Counsel for plaintiff assert that the entire $8,000 should fall into the community as there was no proof that defendant paid the income taxes out of this particular fund. However, defendant testified that the taxes were paid out of this money and his statement is partially supported by the cancelled check showing payment of the federal tax. We conclude that the judge did not err in allowing him a credit for these payments.

On the other hand, counsel for defendant makes alternative contentions in regard to this item. Initially, it is argued that the $8,000 was bequeathed to defendant and became separate property. This point has no substance as the will provided that the $8,000 was a fee and it appears that defendant treated it as such, having paid federal and state income taxes on the sum.

In addition, counsel says that, even if the $8,000 is community property, defendant is entitled to be paid out of the community assets that portion of the fee representing the services rendered by him as executor after the community was dissolved, i.e., from July 1, 1952, the date of the judgment of separation, until June 17, 1953, the date defendant was discharged as executor of Mrs. Hero’s succession.

We cannot accept this proposition. The $8,000 was received during the existence of the community and therefore is presumed to be community property in its entirety. Defendant has not successfully rebutted this presumption merely by showing that he continued in the capacity of executor after the community was dissolved. In the absence of specific proof as to the extent of the services rendered by defendant after the dissolution of the community, it is impossible to deduce the proportion of the fee, if any, which was earned after July 1, 1952.

We next consider Item No. 9 of the notary’s report, which concerns the use of community funds and labor for the repairs and alleged improvement of certain real estate in Belle Chasse, Louisiana, which is the separate property of defendant, having been inherited by him from his mother’s succession in 1936. Plaintiff and defendant resided on these premises from 1936 until 1950 and plaintiff, relying upon Article 2408 of the Civil Code, claims that she is entitled to one-half of the enhanced value of the property resulting from repairs and improvements effected by community funds and labor. The trial judge found that the community was entitled to reimbursement of the sum of $225 from defendant in connection with certain improvements made on the property.

This finding is clearly erroneous. Recovery under Article 2408 of the Civil Code is not based on the amounts expended by the community for the repair and improvement of the separate property of one of the spouses; it is limited to the enhanced value of the property resulting from the repairs and improvements. Succession of Singer, 208 La. 463, 23 So.2d 184; Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502; Williams v. Williams, 215 La. 839, 41 So.2d 736 and Abraham v. Abraham, La., 87 So.2d 735. Although repairs and improvements to the property, which was used and enjoyed by the parties as their matrimonial domicile, were apparently made with community funds and labor, there is nothing in the record to show any enhancement in value of the property at the time of the dissolution of the community. In these circumstances, plaintiff’s claim in this respect will be dismissed.

Item No. 10 involves the sum of $2,000 which defendant allegedly brought into the marriage. He claims a credit against the community for this amount.

This claim was properly rejected by the trial court as the $2,000 was admittedly spent prior to the judgment of separation and defendant has made no showing that the community was enhanced at its dissolution by the expenditure of this fund. See Munchow v. Munchow, 136 La. 753, 67 So. 819 and Vicknair v. Terracina, 168 La. 417, 122 So. 276.

The law is stated in the Munchow case thus:

“In the settlement of a community of acquets and gains, the husband is not entitled to have credit for separate funds contributed by him to the community, except to the extent that the property of the community is thereby enhanced in value at the time of its dissolution; and this must be shown with reasonable certainty.”

In support of his position that a credit should be allowed defendant, counsel cites the case of Talbert v. Talbert; 199 La. 882, 7 So.2d 173, where it was held that a husband who had 250 head of cattle at the date of his marriage was entitled to take as his separate property, at the dissolution of the community, a like number of head from the cattle on hand to replace those owned by him at the time of his marriage. To the same effect, see Succéssion of Andrus, 131 La. 940, 60 So. 623 and cases therein cited.

Assuming the correctness of these decisions without re-affirming them, we are convinced that they should be limited in their effect to livestock and the like and do not apply to items, such as money, that are so readily expendable. We are reinforced in this view and in the soundness of our rejection of defendant’s claim by the language of the court in Succession of Geagan, 212 La. 574, 33 So.2d 118, 128, where, disposing of a similar contention, it stated: “* * * we know of no law, nor have counsel cited any, to the effect that at the dissolution of the community it owes each separate estate the value of whatever property the spouse had at the time of the marriage.”

Furthermore, consideration in these cases must be given to the doctrine of commingling separate and community funds. When separate funds are mixed with community, they become part of the latter, so much so, that it is practically impossible to deduce that the former, when spent, has been used to enhance the community. Succession of Provost, 190 La. 30, 181 So. 802.

Item No. 11 relates to the sum of $2,860.80 which defendant acquired from the liquidation of the Courtableau Lumber Company. The equity in this company, in which defendant’s father was a partner, was listed as $10 in the succession of defendant’s mother in 1936. Subsequently, the company, which had been in dire financial straits, became valuable and defendant realized $2,860.80 from its liquidation. This money was admittedly deposited by defendant in a community account but it is his contention that he is entitled to a credit for the $2,860.80 against the community funds which he used to pay off the debts of his mother’s succession. See the discussion of Item No. 6, supra. This claim was allowed by the district court.

We think the ruling correct. This money, when received by defendant, was clearly his separate property being a distribution of capital from the equity received by him from his mother’s succession and it is only fair to presume that, when he deposited it in the community account, he was repaying the community for the money previously borrowed from it to pay the debts of his mother’s succession. Thus, the $5,334.83 claim of the community against defendant’s separate estate (see Item No. 6, supra) was actually reduced by the amount of $2,860.80 and, accordingly, we approve the judge’s ruling on this item (Item No. 11) so as not to disturb the method of recapitulation adopted by the notary.

Item No. 12 involves three gifts of money allegedly made by Mrs. George A. Hero to defendant totalling $3,753.50. The lower court, finding defendant’s testimony regarding these donations to be substantiated by pertinent bank records, allowed him a credit against the community of $3,753.50.

This claim was improperly allowed. While the evidence is convincing that the gifts were actually made, they were deposited in defendant’s account in the First National Bank of Jefferson Parish at Gretna. This account admittedly contained community funds and the gifts were undoubtedly commingled therewith. Moreover, there was no showing that the expenditure of this particular money, even if it could be segregated, resulted in any enhancement of the community at its dissolution. See Munchow v. Munchow, supra; Vicnair v. Terracina, supra, and Succession of Provost, supra.

Item No. 13 concerns a bank account in defendant’s name in the First National Bank of Jefferson Parish at Gretna. This account, amounting to $1,834.27, was closed out by defendant on February 6, 1952. Although conceding it to be a community account, counsel for defendant claims a credit for the entire amount, alleging part of the money to have been spent to pay federal income tax for 1951, part to be a welfare fund held by defendant for his employer, the Louisiana Power and Light Company, and part to be a travelling advance made to him by his employer. The lower court rejected all these claims.

We think the judge erred as to this item. There were no funds in the account at the dissolution of the community and the testimony of defendant, which is partially corroborated by cancelled checks, satisfies us that the funds were used to defray community expenses. Thus, we hold the $1,834.27, which was spent prior to the judgment of separation, not to be a community asset.

Items Nos. 14 and 15, each involving a bank account in defendant’s name in the Poydras Street Branch of the Whitney National Bank, will be considered together. Both accounts, totalling $9,483.73, were closed out by defendant on February 6, 1952, the date plaintiff filed this suit. It is defendant’s testimony that, in July of 1951, Mrs. George A. Hero donated to him two checks, each in the amount of $5,000 and that the said checks were deposited in separate accounts in the aforementioned bank, one in the name of C. N. Olivier and one in the name of C. N. Olivier, Special Account. His testimony is fully corroborated by Mrs. Hero’s cancelled checks and the appropriate bank statements. Defendant’s bank statements also show that no other deposits were made in either of these accounts.

The evidence establishes beyond peradventure the fact of the manual gifts and defendant’s intention to retain them for his separate estate. Hence, the trial judge properly ruled that each of these bank balances was defendant’s separate property.

In their brief, counsel for plaintiff request that their fee be raised from $1,500, as fixed by the trial judge, to $2,000 because of the great amount of additional work and time expended in connection with the case. We cannot grant counsel’s request for the reason that the matter of the adequacy of their fees is not before this court. If they were dissatisfied with the award of the trial judge, they should have appealed from the judgment.

For the foregoing reasons, the judgment of the district court homologat-ing the report of Rudolph M. McBride, Notary Public, is amended by rejecting Items Nos. 9, 12 and 13 of said Notary’s report. As thus amended, the judgment appealed from is affirmed. The costs incurred in this court are to be paid out of the assets of the community.

      . C. Numa Olivier died on April 4, 195G, and Mrs. Ouida Crain Olivier, testamentary executrix of his succession, has been substituted as defendant (and appellee-appellant) in his place and stead.

      . This check was not deposited by defendant but was cashed and actually pocketed by him, evidently because, at the time of , the payment, the parties were separated. Later, however, the sum was deposited and checks drawn on the account for the amount of taxes due.

      . Counsel for defendant, citing Talbert v. Talbert, 199 La. 882, 7 So.2d 173, asserts that the community was dissolved as of February 6, 1952, the date the suit for separation from bed and board was filed. This Court has recently held, however, that the community of acquéts and gains is dissolved at the time of the rendition of such judgment and not as of the date of the filing of suit therefor. Tanner v. Tanner, 229 La. 399, 86 So.2d 80 and Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169.

      . Item No. 9 actually consists merely of a claim for the use of community funds in spreading shells and for community labor and material in repairing a barn. But our discussion of Item No. 9 also disposes of further claims made by counsel for plaintiff as to other alleged repairs and improvements effected upon this property with community funds and labor.

      - The rationale of the cases can perhaps be justified by analogizing the community’s duty of restitution to that of an usufructuary of a herd of cattle who, if the whole herd does not die, is bound to make good at the expiration of the usufruct the number of dead out of the new born cattle, as far as they go. Article 593 of the Civil Code.


author: ROBERTS, Justice.

text:
    Al HAENAL, d/b/a A. H. Automotive Service, Appellant, v. UNITED STATES FIDELITY and GUARANTY COMPANY OF BALTIMORE, MARYLAND, Appellee.
    Supreme Court of Florida. Special Division B.
    July 18, 1956.
    Robbins & Cannova and Arthur J. Fran-za, Hollywood, for appellant.
    Fleming, O’Bryan & Fleming and Harrison D. Griffin, Fort Lauderdale, for appel-lee.
   ROBERTS, Justice.

This appeal involves the interpretation of a Garage Liability Policy issued by the appellee insurance company to the appellant Haenal covering his automobile repair shop. The trial judge held that the insurance policy did not cover the loss by fire of a customer’s car while it was in Haenal’s shop for repairs and dismissed Haenal’s complaint. Haenal has appealed.

The policy in question contains four types of coverage: Coverage A, Bodily Injury Liability; Coverage B, Property Damage Liability; Coverage C, Automobile Medical Payments; and Coverage D, Property of Others in Charge of Named Insured. Haenal was insured under Coverages A and B but not under Coverages C and D. Coverage B, which is the coverage here relied upon by Haenal as the basis for his suit, obligates the company “[t]o pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.” The Coverage B “hazard” which Haenal contends his loss arose out of is defined (in Division 2 of the “Definition of Hazards”) as

“The ownership, maintenance or use of the premises for the purpose of an automobile repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the use in connection with the above defined operations of any automobile not owned or hired by the Named Insured, a partner therein or a member of the household of any such person.”

Division 1 of the “Definition of Hazards” is identical to the above, insofar as the premises are concerned; and, as to automobiles, it applies to “the ownership, maintenance or use of any automobile in connection with the above defined operations, and the occasional use for other business purposes and the use for non-business purposes of any automobile owned by or in charge of the Named Insured and used principally in the above defined operations.” Division 3 of the “Definition of Hazards” covers “The Ownership, maintenance or use of elevators at the premises.”

It is also pertinent to note that undef Coverage D, the company is obligated “[t]o pay on behalf of the Insured all sums which .the Insured shall become legally obligated to pay as damages because of injury to oí destruction of property of others of a kind customarily left in charge of garages, including the loss of use thereof, caused by accidental collision or upset of such property while in charge of the Named Insured in connection with his automobile dealer, repair shop, service station, storage garage or public parking place operations.”

The policy contains eight exclusions. Relevant here are the following: “This policy does not apply * * * (f) under Coverage B, to injury to or destruction of (1) property owned by or rented to the Insured, or (2) except under division 3 of the Definition of Hazards, property in charge of or transported by the Insured, * * * (h) under coverage D, to injury or destruction caused directly or indirectly by fire or theft; or to injury to or destruction of (1) property owned by or loaned or rented to the Named Insured, or (2) automobiles being driven or transported from the factory or other wholesale distributing point to the purchaser or for storage.”

It is, of course, our duty to resolve any ambiguities in an insurance policy in favor of the insured; however, an isolated sentence of the policy should not be construed alone but “in connectipn with other provisions of the policy in order to arrive at a reasonable construction to accomplish the intent and purpose of the parties.” James v. Gulf Life Ins. Co., Fla.1953, 66 So.2d 62.

As noted, the exclusion clause of the policy here in question exempts the insurance company from liability, under Coverage B, for injury to or destruction of property owned by, rented to, in charge of, or transported by the insured (except as to the coverage relating to elevators under the Division 3 hazard, quoted above). The only ambiguity here, if any, is as to the meaning of the words “in charge of.” While this particular exclusion clause in a Garage Liability Policy has not heretofore been interpreted by this court, it is almost universally held by courts of other jurisdictions that customers’ cars, while being serviced or repaired, are “in charge of” the insured within the meaning of such an exclusion clause. See State Automobile Mutual Ins. Co v. Connable-Joest, Inc., 1939, 174 Tenn. 377, 125 S.W.2d 490; Clark Motor Co. v. United Pacific Ins. Co., 1943, 172 Or. 145, 139 P.2d 570; Parry v. Maryland Casualty Co., 1930, 228 App.Div. 393, 240 N.Y.S. 105; Root Motor Co. v. Massachusetts Bonding & Ins. Co., 1932, 187 Minn. 559, 246 N.W. 118; Yadro v. United States Fidelity & Guaranty Co., 1955, 4 Ill.App.2d 477, 124 N.E.2d 370; 2 Richards on Insurance, Sec. 296, p. 978. But see Welborn v. Illinois National Casualty Co., 347 Ill.App. 65, 106 N.E.2d 142, and Vaughan v. Home Indemnity Co., 1952, 86 Ga.App. 196, 71 S.E.2d 111, where a different conclusion was reached under policies varying considerably from that with which we are here concerned.

Yadro v. United States Fidelity & Guaranty Co., supra, 124 N.E.2d 370, 371, is almost squarely in point, on its facts, with the instant case. There, the insured sought to collect for the loss of a customer’s car by fire while it was in his shop for servicing, basing his claim on a Coverage B hazard contained in the policy that was identical with that of Division 1 of the “Definition of Hazards”, quoted above. The policy also contained a Coverage D identical with that of the instant policy, quoted above, and an identical exclusion clause as to Coverage D. The exclusion clause as to Coverage B was not quoted verbatim, but it appears to have been the same as that in the instant policy. Whether the policy there considered also contained a Division 2 hazard, such as that quoted above and here relied on by Haenal, is not shown by the opinion. But we think the reasoning of the Illinois court is equally applicable to either Division 1 or Division 2 of the Coverage B hazards defined in the instant policy. The Illinois Court pointed out that injury to or destruction of a customer’s car, while it was “in charge of” the insured for servicing, comes squarely within the definition of Coverage D, and said:

“It is common for liability policies to define hazards and specify the extent and limits of coverage of different risks. A court is without authority to reject some of the express statements of coverage and then declare that another coverage was intended to apply in all cases, for this would violate the principle that a court cannot under the guise of construction make a new contract for the parties. * * *
“Since the policy in this case contained a specific and limited coverage of liability arising out of damage to property of others left in charge of the insured for service, and excluded damage by fire therefrom, the trial court properly entered judgment for the defendant, and the judgment is affirmed.”

The clear intent of the parties here, as in the policy construed by the Illinois court, was to extend coverage for liability for injury to or destruction of property “in charge of” the insured, under Coverage D (and not even then for loss by fire) ; and to interpret the policy as providing for this same type of coverage (and even broader in scope) in Coverage B, as here contended for by Haenal, “is unreasonable, absurd and would lead to results never intended or contemplated by the parties.” James v. Gulf Life Ins. Co., supra, 66 So. 2d 62, 63. And, like the Illinois court, we “cannot under the guise of construction make a new contract for the parties.”

For the reasons stated, it was not error to hold that the policy in question did not cover loss by fire of the customer’s car, so the judgment appealed from should be and it is hereby

Affirmed.

TERRELL, Acting Chief Justice, and THOMAS and THORNAL, JJ., concur.


author: THORNAL, Justice.

text:
    SOUTH DADE FARMS, Inc., a Florida Corporation, and James Sottile, Jr., and William Sottile, Petitioners, v. Frederick C. PETERS and Berenice Todd Peters, Respondents.
    Supreme Court of Florida. En Banc.
    April 4, 1956.
    Rehearing Denied July 31, 1956.

      Caldwell, Parker, Foster & Wigginton, Tallahassee, Claude Pepper and Ward & Ward, Miami, for petitioners.
    Carl A. Hiaasen and McCune, Hiaasen, Kelley & Crum, Fort Lauderdale, for respondents.
   THORNAL, Justice.

By petition for writ of certiorari the petitioners, South Dade Farms, Inc., James Sottile, Jr., and William Sottile, seek reversal of a decree of the Chancellor entered April 22, 1955, adjudging South Dade Farms, Inc., a corporation, in contempt of court for violation of an injunction decree entered June 5, 1953. The contempt order assessed against said corporation a “compensatory fine” in the total amount of $738,-260.75. The order also contained a contingent jail sentence for the two individual petitioners, who were officers of the corporation, conditioned on payment of the compensatory fine by the corporation. There was a provision for issuance of writ of execution. The original cause out of which this contempt proceeding follows was previously before this court. See South Dade Farms, Inc., v. Peters, Fla. 1953, 69 So.2d 890.

On June 5, 1953, the Chancellor entered a final decree in the main case whereby it was established that a certain “comprehensive integrated contract” constituting a lease was in existence between the two respondents, Frederick C. Pete.is and Berenice Todd Peters, as lessees, and the petitioner South Dade Farms, Inc., as lessor. The basic facts with reference to this contract are set out in our opinion in 69 So.2d 890, It is appropriate to repeat herein that the contract so adjudicated established respondents Peters as the lessees of certain lands of South Dade Farms under a lease arrangement dated July 1, 1946, for a five-year period beginning May 1, 1947, and ending April 30, 1952, and which was extended by a document recorded on April 26, 1951, for an additional five-year period to terminate on April 30, 1957. The original lease of 1946 covered two parcels of land generally referred to as parcels 1 and 2 comprising 1,720 acres of potato lands out of a total of approximately 17,000 acres of land owned by South Dade Farms in Dade County.

The initial dispute which produced the lawsuit at the outset involved the extended lease. Peters contended that the extended lease included not only the terms of the original lease but in addition the understanding of the parties as reflected by four letters written by South Dade Farms to Peters in one of which reference was made to the proposition that during the extended five-year term, Peters would make his annual selection of lands for the growing of potatoes “as we have done in previous years.” It appears that although the original lease provided that Peters would annually before May 1st select 1,000 acres of land out of the total of 1,720 acres described in parcels 1 and 2, nonetheless, the “custom” had been that Peters would be permitted to make his selection from any and all of the lands owned by South Dade Farms and would not be restricted to parcels 1 and 2.

In the final decree of June 5, 1953-, the Chancellor determined that the extended lease was a “comprehensive integrated contract” consisting of the original lease as supplemented by the letters above mentioned plus the formal extension agreement. He decided that the “annual custom” relating to the selection of lands by Peters became a part of the integrated contract and that, therefore, Peters was not limited in his annual selection to the lands described as parcels 1 and 2. The contempt citation and decree now before us arose out of an alleged violation of paragraph 6 of the final decree of June 5, 1953, which reads as follows:

“(6) (a) The defendants, and each of them, be and they are hereby enjoined and restrained from interfering zvith or impairing the rights of the plaintiffs accruing to the plaintiffs by virtue of the provisions of the aforesaid comprehensive and integrated contract.
“(b) In accordance with the provisions of the original lease of July 1, 1946, which is incorporated and merged in the aforesaid comprehensive and integrated contract,
“ 'all land contained in Parcels 1 and 2, as hereinabove designated and referred to not thus selected by the . Lessees (plaintiffs) or either of them, shall thereupon stand released to the Lessor (South Dade Farms, Inc.) for the then current crop season and may thereupon be leased to others for said season provided said lands shall not be used by anyone during said season for the growing of Irish potatoes.’
“The defendant, South Dade Farms, Inc., and all persons claiming through or under it (other than the plaintiffs and their sub-tenants) be and they are hereby enjoined and restrained from growing Irish potatoes on Parcels 1 and 2 described in said original lease of July 1, 1946.” (Emphasis ours.)

We must now ascertain the facts giving rise to the alleged contemptuous conduct of the petitioners.

Pending consideration of the original case and during the month of May, 1953, but several weeks before the final hearing and the entry of the final decree on June 5, 1953, the petitioner South Dade Farms, Inc. executed six leases to six tenants, other than Peters, who are herein generally referred to as “the six tenants” whereby certain lands in parcels 1 and 2 were leased to the tenants for one year (terminating April 30, 1954). By said leases the six tenants were authorized to raise potatoes on the lands leased to them. The record in the original case and the record in this contempt proceeding reveal that this likewise had been an annual custom well known to Peters and his agents. It is clear that despite the provisions of the original lease dated July 1, 1946, the parties had annually followed the custom of permitting Peters to select his acreage without restriction to parcels 1 and 2; that he made his selection on or before May 1st of each year and that after May 1st of each year, South Dade Farms customarily leased portions of parcels 1 and 2 to other tenants for the growing of potatoes. The record in the contempt proceeding reveals that five of the six tenants cited for contempt had annually been leasing these same pieces of land out of parcels 1 and 2 for the growing of potatoes for a period of four to five years; that the tenants were in possession of the same lands as annual lessees of South Dade Farms at the time of the filing of the original complaint in September, 1952, and that Peters or his agents knew all of this and never at any time objected to it until the contempt citation was issued in the matter now before us, on February 25, 1954. In fact, they tacitly consented to the practice in accord with the annual custom.

In considering the alleged contemptuous conduct of South Dade Farms and its six tenants, it should be underscored that the leases to the six tenants were all fully executed and valuable considerations paid in accordance with the annual custom consistently recognized by Peters, well in advance of the entry of the final decree of June 5, 1953, alleged to have been violated. Under these leases South Dade Farms was merely a lessor. It exercised no control whatever over the land during the one-year term of the lease. It did not participate either in the growing of potatoes or in profits derived from the production of potatoes on the land. The rentals were paid when the leases were executed and thereupon for the one-year term of the lease South Dade Farms’ authority over the land ended. Further, we should point out that the six tenants were not parties to the original proceeding, and so far as the records reveal when they signed the leases and planted the potatoes, they were never advised that the lands they were leasing were involved in the chancery case pending before the Circuit Court. Some of them received information indicating that the lands were so involved in November, 1953, five months after the decree was entered and six months after they obtained their leases, but even in this regard the advice to them was rather nebulous and in actuality the record fails to reveal that they were ever at any time served with a copy of the injunction decree of June 5, 1953. As a matter of fact, several of the six tenants were nonresidents of Florida and were in the state only periodically during the pendency of the original case. No lis pendens was filed in the original proceeding. Although, by an amended answer filed by South Dade Farms, prior to the entry of the final decree of June 5, 1953, it was brought to the attention of the Chancellor as well as Peters that the lands had been leased during the month of May, 1953, in accordance with the annual custom, no effort whatever was made to bring these six tenants into the case to adjudicate their rights, if any they had, in the primary proceeding then pending before the Court. This record is devoid of any evidence that the tenants and South Dade Farms acted in concert or in any fashion conspired or wilfully collaborated to impede the orderly processes of the law or to construct barriers against the effective administration of justice.

Upon the filing of the mandate of this court, affirming the final decree, on February 23, 1954, the Chancellor at the request of respondents, on February 25, 1954, issued a rule directed to South Dade Farms, Inc., its officers, agents and directors and also the six tenants (who had never previously been parties to the cause) requiring them to show cause why they should not be adjudged in contempt of court for violating the final decree of June 5, 1953, and particularly that portion of the final decree quoted earlier in this opinion.

We interpolate at this point that when the rule to show cause was issued on February 25, 1954, and at the time it was served, the six tenants had raised a crop of potatoes on approximately 560 acres of parcels 1 and 2, but the potatoes had not yet been harvested or marketed. They were still in the ground. The potatoes involved are known to the trade as Florida winter potatoes and they are customarily marketed in March and possibly early April. The form of the proposed rule to show cause as presented to the Chancellor by the respondents contained the following provision:

“(3) The defendant, South Dade Farms, Inc., and Mason W. Alger, Jefferson Davis, W. J. Plotner, Fred Z. Pelletier, The A, B and C. Company (a partnership consisting of John Case and Babbin & Harmon, Inc.,) and Earl K. Harvey, be and they are hereby commanded and directed to forthwith desist from growing or harvesting or marketing Irish potatoes on the aforesaid Parcels 1 and 2.”

The record indicates that the Chancellor declined to include the quoted provision in the rule hut it was eliminated from the typewritten copies of the rule served on the petitioners and their tenants only by a series of diagonal inked lines which were drawn through the typed paragraph and initialed by the Chancellor in ink showing that he had declined to enter this provision which would have directed the tenants to desist from harvesting or marketing the potatoes then in the ground. Although, admittedly, such an elimination of the provision restraining the harvesting of potatoes would not technically be construed as any grant of permission to do so, nonetheless, in considering the alleged contemptuous conduct of the tenants who were not parties to the original cause, one might readily conclude that to the lay mind the elimination of the quoted provision in the manner above described would suggest that the judge had been requested to prohibit the tenants from harvesting the potatoes and had refused to prohibit them from doing so. This was in truth exactly what happened. It was actually an indication to the six tenants that they would not be going contrary to the decree of the court if they then proceeded to harvest the crop because the court declined to prohibit them from doing so. The foregoing observation is not controlling but it is an element to consider.

The petitioners and the six tenants responded to the rule and the cause then proceeded to the taking of testimony on the question of the alleged contemptuous conduct. At the outset the court ruled that this was a civil rather than a criminal contempt proceeding. There is a substantial difference as we shall see. The respondents who were plaintiffs below were seeking the aid of the court’s contempt powers to enforce the final decree in their behalf; to determine the extent of damages, if any, suffered by them as the result of the alleged violation of the decree and to assess against the alleged contemnors a “compensatory fine” payable to the respondents, plaintiffs below, in an amount equal to the damages suffered by them and their associates, plus their costs, expenses and reasonable attorneys’ fees occasioned by the alleged contempt.

Except as to the amount of damages there was little conflict in the testimony. The facts summarized above were all revealed by the record in the contempt proceeding supplemented by the record in the main case which we have examined again in this proceeding.

On the question of damages it was reliably estimated that for the 1953-1954 winter season the six tenants produced and marketed from the 560 acres of so-called “forbidden lands” in parcels 1 and 2 a total of 190,000 sixty-pound bushels of potatoes. During the 1953-1954 season a total of 3,450,000 sixty-pound bushels of winter potatoes were marketed out of Dade County. The respondents contended that they were entitled to damages in the form of a “compensatory fine” to be measured by the adverse effect on the price that they received for their winter potatoes in 1953-1954 season resulting from the alleged wrongful production of 190,000 bushels. Peters was not primarily engaged in the planting and harvesting of potatoes. His principal objective in leasing lands from South Dade Farms was to enable him to obtain potato lands to be subleased to members of a potato growers co-operative organized by him and known as Farsouth Growers Co-operative Association. The potatoes raised by Farsouth through its members were then marketed through another co-operative likewise organized by Peters, known as Tropical Agricultural Co-operative Association, herein referred to as TACA. By a method of relating the influence of total production of winter potatoes in Dade County to the price received by TACA over a period of seven years and by contrasting this relationship with the relationship between national potato production and the so-called United States’ potato price, indicating the influence of production on price, and by correlating these relationships in accordance with a scientific method known as the “Multiple Graphic Curvilinear Correlation” method, the plaintiffs produced “expert” testimony to show that the production and marketing of 190,000 bushels of winter potatoes during the 1953 — 1954 crop season on the 560 acres of “forbidden lands” had the effect of decreasing the price of potatoes received by the plaintiffs and their associates to the extent of $1.00 per bushel. It was then a matter of mathematics for the Chancellor to conclude that the plaintiff Peters and his three sons for whom he allegedly acted grew a total of 275,335.83 bushels of winter potatoes during the 1953-1954 season, and that therefore for the alleged violation of the decree the petitioner South Dade Farms should pay to Peters for the use and benefit of himself and his three sons a “compensatory fine” in the amount of $275,335.83. The three sons were not parties to the cause. It was likewise mathematically determined that other members of Farsouth Growers Co-operative (none of whom were parties to the cause) produced 392,920 sixty-pound bushels of potatoes in the same season and that South Dade Farms should pay to Peters for the benefit of the members of Farsouth, for whom he also allegedly acted a “compensatory fine” in the amount of $392,920. The balance of the “compensatory fine” directed to be paid consisted of attorneys’ fees and routine litigation expenses found by the court to be a combined total of $70,-004.92. Again, using simple arithmetic, it will be observed that these three figures produced a total “compensatory fine” of $738,260.75. Petitioners likewise offered “expert” testimony to the effect that the potato price was depressed about six cents per bushel by the questioned production.

As to the six tenants the Chancellor concluded that they too were in contempt but that their contempt was less culpable than that of South Dade Farms, Inc. Against the six tenants there was assessed a “compensatory fine” in the amount of $35,000, plus one-half of the attorneys’ fees and expenses. There is no record evidence of how the figure of $35,000 was reached. It was provided that the fines paid by the tenants should be credited against the fine assessed against South Dade Farms, Inc. There was also a contingent jail sentence and provision for writ of execution. See our opinion filed this date in Alger v. Peters, Fla., 88 So.2d 903, in the appeal filed by the “six tenants.”

In addition to assessing the fines with the contingent provisions for imprisonment, the trial judge in the contempt decree reserved jurisdiction for the enforcement of the same and provided that if South Dade Farms and its tenants should violate the original final decree in the future, the court would entertain appropriate proceedings at the instance of the plaintiffs below for the imposition of further “coercive” as well as further “compensatory” fines. He denied a “coercive fine” at this time feeling that the “compensatory fine,” because of its size, was sufficiently punitive in effect.

By their petition for writ of certiorari the petitioners seek reversal of the contempt decree on numerous grounds including the following: there was no proof of contempt of the final decree of June 5, 1953, by South Dade Farms, Inc.; that the constitutional rights of South Dade Farms and its officers have been violated in that a judgment has been entered against them without due process of law; that the contract as adjudicated by the original decree and proposed to be enforced by the contempt decree is void, in violation of Chapter 542, Florida Statutes, F.S.A., said act prohibiting contracts in restraint of trade; that the compensatory fine, coupled with the contingent jail sentence, constitutes cruel or unusual punishment; that the evidence of damage is so highly speculative that it lacks all probative value; and finally that the compensatory fine was assessed in behalf of persons not parties to the original cause.

The respondents, to support the contempt decree, assert that the final decree of June 5, 1953, was unassailable by South Dade Farms, Inc., the main defendant in the original suit as well as by the six tenants of said defendant who were not parties to the main case, that the court below had inherent and statutory power to adjudge the contempt; that the compensatory fine and coercive jail sentence were proper. Respondents also cross-assign errors contending that the Chancellor did not apply adequate sanctions against the contemnors for failure to answer certain interrogatories; that the attorneys’ fee allowed respondents’ counsel was inadequate; that the fine assessed against the six tenants was inadequate; and finally that in addition to the compensatory fine, the Chancellor should hav.e assessed a substantial coercive fine.

In view of the strenuous contest of this matter in the lower court as well as the exhaustive and able briefs of counsel for all parties and because of the importance of the questions raised, we have summarized above in considerable detail the facts appearing in the record as well as the contentions offered by the contesting parties. We proceed next to a consideration of the legal principles applicable.

There can be no doubt of the authority of a court to administer appropriate punishment for contemptuous conduct of parties bound by its decree. This power has been recognized as a part and parcel of our judicial system. The reasons for it are almost obvious. They are well stated in the opinion of the late Justice Davis in Seaboard Air Line R. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529, 532, as follows:

“And if, upon the examination of the record, it should appear that the defendant was in fact guilty of the contempt charged, there would be no more important duty than to give such direction to the court below as would serve to vindicate its jurisdiction and authority to enforce its order and to redress acts of disobedience to them.
“For, while the power to punish for contempt of a civil or criminal nature is to be sparingly used, it is a necessary and integral part of the judicial power, and is absolutely essential to the performance of the duties imposed by law upon courts of equity. Without it, such courts are mere boards of arbitration, whose judgments and decrees are only advisory. If a party can make himself a judge of the validity of orders which have been issued for the protection of property rights, and by his own act of disobedience can set them aside, then are the courts impotent, and what the Constitution of the state ordains as the judicial power becomes a mere mockery.
“This power has uniformly been held indispensable to enable the court to enforce its judgments and to execute its orders necessary to the due administration of law and the protection of the rights of citizens.
“Where a defendant has interfered with property in violation of an injunction, he may properly be required to restore the property interfered with to its former condition, or the court may make an alternative order giving the defendant the chance to make restitution before passing sentence of fine or imprisonment.”

In the opinion last cited this court adopted the language of the Supreme Court of the United States in the leading case of Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 501, 55 L.Ed. 797, from which we quote also the following:

“There has been general recognition of the fact that the courts are clothed with this power, and must be authorized to exercise it without referring the issues of fact or law to another tribunal or to a jury in the same tribunal. For, if there was no such authority in the first instance, there would be no power to enforce its orders if they were disregarded in such independent investigation. Without authority to act promptly and independently the courts could not administer public justice or enforce the rights of private litigants. Bessette v. W. B. Conkey Co., 194 U.S. [324] 337, 24 S.Ct. 665, 48 L.Ed. [997] 1005.”

Contempt powers have been recognized by statute in Florida. Section 38.22, Florida Statutes, F.S.A., provides:

“Every court may punish con-tempts against it, whether such con-tempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact, but the punishment imposed by a justice of the peace shall not exceed twenty dollars fine, or twenty-four hours’ imprisonment.”

Admitting the basic authority of the trial judge to exercise the power in an appropriate case, we come next to seek an understanding of what will constitute contemptuous conduct. By Section 38.23, Florida Statutes, F.S.A., contempt of court is defined as follows:

“A refusal to obey any legal order, mandate or decree, made or given by any judge either in term time or in vacation relative to any of the business of said court, after due notice thereof, shall be considered a contempt, and punished accordingly. But nothing said or written, or published, in vacation, to or of any judge, or of any decision made by a judge, shall in any case be construed to be a contempt.”

We also find a helpful definition in Oswald, Contempt of Court, page 5, from which we quote as follows:

“Contempt of Court (which has been irreverently termed a ‘legal thumbscrew’) is so manifold in its aspects that it is difficult to lay down any exact definition of the offense. ‘It is defined or described to be a disobedience to the Court, an opposing or a despising the authority, justice, or dignity thereof. It commonly consists in a party’s doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order, or decree of the Court’.”

See also Miami Law Quarterly, Vol. IX, No. 3, p. 281.

With an understanding of the nature of the offense as well as the power of the courts to administer appropriate punishment or relief, we are next admonished to observe caution in the exercise of the admitted authority in view of the summary nature of a contempt proceeding and its potentialities for impinging upon the orderly requirements of due process. In Seaboard Air Line R. Co. v. Tampa Southern R. Co., supra, it was pointed out that “the power to punish for contempt of a civil or criminal nature is to be sparingly used *. * On pages 17 and 18 of Oswald, Contempt of Court, we find a similar warning as follows:

“It should always be borne in mind in considering and dealing with contempt of Court that it is an offense purely sui generis, and that its punishment involves in most cases an exceptional interference with the liberty of the subject, and that, too, a method or process which would in no other case be permissible, or even tolerated. It is highly necessary, therefore, in all questions of this nature where the functions of the Court have to be exercised in a summary manner, that the Judge in dealing with the alleged offence should not proceed otherwise than with great caution and deliberation, and only in cases where the administration of justice would be hampered by the delay in proceeding in the ordinary course of law; and that when any antecedent process has to be put in motion, every prescribed step and rule, however tech-, nical, should be carefully taken, observed, and insisted upon. The jurisdiction should be exercised the more carefully in view of the fact that the defendant is usually reduced, or pretends to be reduced, to such a state oi •humility, in fear of more severe consequences if he shows any recalcitrancy, that he is either unable or unwilling to defend himself as he otherwise might have done.” (Emphasis ours.)

The suggested caution in the exercise ot the power, however, should not be construed as a restriction in any case where it is appropriate for a court to assert the authority whether it be in criminal or civil contempt.

This leads us then to a consideration of the classes of contempt and some of the distinctions between the recognized classes. We take note of the fact that at the initial hearing on the response to the rule to show cause in the case before us, it was ruled by the trial judge that this was a civil contempt proceeding. The matter was tried on that basis. The distinction between civil and criminal contempt is of some consequence. The differences are clearly delineated by the Supreme Court of the United States in Gompers v. Buck’s Stove & Range Co., supra, and are recognized by this court in Seaboard Air Line R. Co. v. Tampa Southern R. Co., supra. Fundamentally, a criminal contempt proceeding is between the public and the defendant. It is not directly a part of the original cause. It involves punishment for an offense against the court itself as distinguished from the commission of an act in derogation of the rights of a party to the cause. A civil contempt proceeding naturally involves in some measure a transgression against the dignity of the court and the prestige of its order, however, it is in actuality a proceeding between the parties to the cause and is instituted and tried as a part of the main case. It should be considered more nearly in the nature of a civil proceeding between the parties, and to the extent appropriate rules governing civil causes should apply. When a judgment or decree in favor of one party is disregarded or violated by another party to the injury of the former, it is then appropriate for the injured party to call upon the court to exercise its contempt powers in the enforcement of its decrees for the benefit of the party in whose favor the decree has been entered.

In an appropriate civil contempt case the court may compel performance of a required act by coercive imprisonment or in the event that the violation of the decree has resulted in damages to the injured party, there is adequate authority to support the assessment of a “compensatory fine” to be paid by the wrongdoing party to the party injured. The expression “compensatory fine” seems to have found its way into the law governing contempt in Gompers v. Buck’s Stove & Range Co., supra. It was indirectly recognized by our opinion in Seaboard Air Line R. Co. v. Tampa Southern R. Co., supra. Although in 17 C.J.S., Contempt, § 94, p. 137, it is stated:

“The power of the court to award indemnity to the injured party usually rests on statute”,

nevertheless, the history of civil contempt proceedings sustains the conclusion that the power to impose a compensatory fine to the extent of the damages suffered by the injured party inheres in the court whose decree has allegedly been violated.

Rapalje in his treatise on Contempt, Sec. 131, recognized the authority of the court to impose a fine as indemnity to an injured party in a civil action resulting from disobedience of an order or decree. Mos-kovitz in writing on “Contempt of Injunctions, Civil and Criminal” in 43 Columbia Law Review 780 (p. 804) suggests that although there is some authority to the effect that the power to assess an indemnifying fine rests solely on statute, there is nevertheless equal authority to support the position that the power to grant such fine is inherent unless restricted by statute.

This court very early in its history in some measure recognized the inherent power of a court of equity to assess damages in favor of an injured party to be paid by a party violating a decree. See Ex parte Edwards, 11 Fla. 174. We are of the view that in a proper case there is adequate precedent to support the impositioñ of a “compensatory fine” in civil contempt proceedings. See also: Beale, “Contempt of Court, Criminal and Civil,” 21 Harvard Law Review 161 (p. 170); 26 Georgetown Law Journal 719; Hanna v. Martin, Fla. 1950, 49 So.2d 585; Wells, Fargo & Co. v. Oregon Ry. & Nav. Co., C.C., 19 F. 20; “Standards of Punishment in Contempt Cases,” 39 California Law Review 552.

Having ascertained many of the basic principles of law applicable to the matter, we now proceed to a-consideration, of the ultimate problem which is whether or not the petitioners were guilty of contemptuous conduct that justified the assessment of the fine and the entry of the contempt decree which is here under attack.

By referring to the injunctive provisions of the final decree of June 5, 1953, it will be observed that the petitioner South Dade Farms, Inc. was “enjoined and restrained from interfering with or impairing the rights of” the respondents Peters under the integrated contract and further that said petitioner and others who were not parties were “enjoined and restrained from growing Irish potatoes on Parcels 1 and 2 * * * The first quoted injunction was applicable only to the defendants to the original cause which did not include the six tenants. See Annotation 15 A.L.R. 386. The second portion quoted enjoined South Dade Farms, Inc. and others (describing but not specifically naming them) from “growing Irish potatoes.” The recitals in the contempt decree purporting to show that South Dade Farms, Inc. was guilty of contemptuous conduct stated that after the decree, the six tenants used portions of parcels 1 and 2 for Irish potato growing, that South Dade Farms executed the leases to the' six tenants after receiving the Peters selection letter, dated March 16, 1953, but in no place finding that the leases were executed after the final decree.

The contempt decree further finds that South Dade Farms took no steps to prevent the six tenants from planting potatpes. The record shows that South Dade Farms executed the leases to the six tenants several weeks prior to the final decree of June 5, 1953. This record does not support any conclusion that these leases were executed in bad faith or out of any collusive effort to avoid the decree of the lower court. In fact, such would have been impossible for the simple reason that the lower court did not enter its decree until many days after.the leases were executed. There is no evidence whatever that South Dade Farms, Inc. took any steps at all toward the growing of potatoes on parcels 1 and 2 after the entry of the decree. The record clearly shows that the petitioners did not engage in the growing of potatoes and it is certainly clear that these petitioners did not grow any potatoes on the so-called “forbidden lands.”

Prior to the entry of the final decree the petitioner South Dade Farms executed the leases to the six tenants. This was not contempt of court, although it might have been a breach of contract, a question which we certainly do not undertake to settle herein. As between South.Dade Farms and the six tenants the leases were binding obligations and the final decree gave no directions whatever that the leases be cancelled. The respondents knew about the leases and knew of the annual use of parts of parcels 1 and 2 for potato growing. Neither the validity of the leases nor the rights of the six tenants under them were adjudicated by the final decree. They couldn’t be. The tenants were not parties and there was no legal orbit within which South Dade Farms, Inc. could move for cancellation as between itself and the six tenants.

We are not here concerned with the problem of whether South Dade Farms, Inc. breached a pre-existing contract with Peters thereby giving rise to a cause of action at law for damages. We are limited in the matter before us to a determination of whether South Dade Farms, Inc. committed acts which constituted a contempt of court by violating or failing to comply with the injunctive provisions of the final decree.

A decree cannot be violated in advance of its entry and it cannot be made retroactive so as to establish a violation by the acts of parties committed before the decree was entered.

In Joyce on Injunctions, Vol. 1, Sec. 41, it is stated:

"No injunction for past acts. — An injunction is for the most part preventive, and cannot ordinarily be employed to correct a wrong already done or restore to a party rights of which he has been deprived.”

In Davis v. Wilson, 139 Fla. 698, 190 So. 716, 719, this court held:

“It is likewise well settled in this state that an injunction will not he issued to restrain an injurious act already committed. Pensacola & Ga. R. Co. v. Spratt, 12 Fla. 26, 91 Am.Dec. 747; Smith v. Davis, 22 Fla. 405; relief, if any, being in a court of law. Wilkinson v. Woodward, 105 Fla. 376, 141 So. 313; Hernandez v. Board of Commissioners of Hillsborough County, 114 Fla. 219, 153 So. 790.” (Emphasis ours.)

In line with the foregoing authorities we are of the view that this case is controlled by the rule followed in the decision of this court in Smith v. Whitfield and Sanders, 38 Fla. 211, 212, 20 So. 1012, 1016. An examination of the facts in the case cited will show that they are peculiarly analogous to the present situation. In Smith v. Whitfield and Sanders, supra, Smith filed suit against Whitfield and Sanders seeking an injunction to restrain them from digging or removing, selling or encumbering, phosphate deposits from certain land. On December 26, 1895, an injunction pursuant to the prayer of the complaint was granted. The injunction was dissolved January 3, 1896. An appeal was filed January 31, 1896. On January 27, 1896, four days before notice of appeal, Whitfield and Sanders executed a contract to Anglo-Continental Guano Works authorizing that company to remove and dispose of phosphate on the land covered by the dissolved injunction. On February 3, 1896, the order dissolving the injunction was superseded and this had the effect of restoring as of that date the restraining order. Between January 27, 1896 and April 11, 1896, Anglo-Continental Guano Works through its agents removed and disposed of phosphate rock on the land in question. Whitfield and Sanders and one Trubenbach, agent of Anglo-Continental, were cited for contempt of court for violating the original injunction which had been reinstated by the supersedeas order. Because of its peculiar applicability to the situation now before us, we quote at length from the opinion of the court reaching the conclusion that no contempt was established and discharging the rule nisi as follows:

“ * * * The appeal subsequently entered from the order dissolving the injunction mentioned did not of itself reinstate the injunction, but the order directing it to operate as a supersedeas, and the compliance with the terms thereof, did have that effect. McMichael v. Eckman, 26 Fla. 43, 7 So. 365. While the supersedeas had the effect stated, it is not contended, as we understand, that it would retroact, so as to deprive strangers to the litigation of intervening rights bona fide acquired. In our opinion, it could not have such effect. Archer v. Hart, 5 Fla. 234; State v. Johnson, 13 Fla. 33. Under the showing made, the Anglo-Continental Guano Works obtained, not only the actual possession of the rock for valuable consideration paid, but, as against Whitfield & Sanders, the absolute right of disposing of the same, and that, too, before any appeal was entered or supersedeas granted. [First National] Bank [of Pensacola] v. Wittich, 33 Fla. 681, 15 So. 552. It is insisted that the entire dealing between Whitfield & Sanders and Tru-benbach was a subterfuge resorted to for the purpose of evading the super-sedeas, and that the transaction of January 27th did not really take place at that time, but was an afterthought. If we were satisfied that such was the case, prompt punishment would be visited upon all parties concerned; but a careful examination of the evidence does not impress us with this view. The contracts made in 1894 were before any litigation arose between Smith and Whitfield & Sanders, and were undoubtedly genuine; and there is really no impeachment of the showing that the transaction of January 27, 1896, did at that time take place. The agent of the Anglo-Continental Guano Works would not, in our judgment, subject himself to liability as for a criminal contempt in asserting whatever rights his 'company bona fide acquired by paying for and taking possession of the rock before the supersedeas was granted. Whether the rights acquired by the Anglo-Continental Guano Works zvere in fact superior to Smith’s is not involved, and, if he desired to question such rights, he- should have impleaded the company in some way. The rule charges Trubenbach with aiding and assisting Whitfieíd & Sanders in moving the rock on the 6th of April, 1896. The testimony does not' show any aiding arid assisting' in the shipment on the part of Trubenbach, but it appears that he alone was the moving party in what was done. Contempt proceedings are criminal in their character, and some strictness is required. Whether a charge for aiding' and assisting another in doing an act will be sustained by proving the doing of the act by the party alone, we need not consider, as the rule against Trubenbach must be discharged for the reasons given.
.“As to Whitfield, there is no ground for complaint. It appears from his testimony, not contradicted, that before the 27th day of Jánuary, 1896, he had sold his interest in the firm of Whitfield & Sanders, and it is not shown that he had anything to do with the shipping of the rock in April following. He does say that Sanders negotiated the transaction of January 27th, by which the rock was transferred and delivered to the Anglo-Continental Guano Works, and that he Whitfield knew of it, and approved it. But at that time there was no injunction pending against the selling or removal of the rock, as no appeal had then been entered from the order dissolving the injunction granted; and the testimony of all parties concerned is to the effect that the transaction of January 27th, by which the Anglo-Continental Guano Works acquired the possession and control of the rock, was in good faith, and for a bona fide consideration. The proof is not sufficient to show that Whitfield had any agency in the removal of the rock in April, and we have no hesitancy in discharging the rule as to him.
“Sanders did not in person engage in the removal of the rock, nor did he assert any ownership or' control over the same after the 27th of January, 1896. But while he did not, so far as the evidence shows, personally direct the removal of the rock, nór personally engage in its removal,' his conduct in reference to the sr/iie is such as to bring him under condemnation for a violation of the order of this court, had he been in possession or control' of the property when the supersedeas was perfected. He was present when Gibson was having the rock put on the cars, and said nothing about the super-sedeas. He notified, as he admits, parties that they could get employment in loading the cars, and on one occasion took money from Trubenbach out to the mine, for the hands engaged in loading the cars, and did other things inconsistent with the proper observance of the mandate of a court in reference to the property, had it been in his possession or subject to his control. If delivery had not been made before the supersedeas was perfected, though an agreement for the transfer had previously been entered into, neither Whitfield nor Sanders could, Under the terms of the supersedeas order, have subsequently made delivery of the property, or passively stood by, and allowed it to go out of their possession; but that was not the case. Actual transfer and delivery of the rock to the Anglo-Cóntinental Works were made before Smith entered his appeal, and Whitfield & Sanders had no further control over the property at that time. It not being a criminal violation of the superse-deas order for the company to assert such rights as it had acquired before the same was granted, what Sanders did was not in furtherance of an illegal purpose. Our conclusion is that the rule nisi should be discharged generally as to all the defendants.” (Emphasis ours.)

The opinion in Smith v. Whitfield and Sanders, supra, has never been overruled nor has there been any recession from it. As a matter of fact, it appears to us to be of some significance that although petitioners rely heavily thereon in their brief in support of the petition, the respondents in their reply brief do not comment on the case or in any way undertake to distinguish it.

The principle applied in the case last cited was again applied by this court in Lewis v. Kelly, Fla.1954, 75 So.2d 761, involving an injunctive order of March 4, 1953, against a pledge of certain stock. It was shown that the stock had been pledged some fifty-six days prior to the entry of the decree. In the opinion Mr. Justice Terrell raised the question, “If there was no in-junctive order in effect at the time Lewis pledged his stock on January 7, 1953, how could he have- been said to have wilfully violated one?” We answered the question with the holding that the pledge executed prior to the injunctive decree could not in any fashion be construed as a violation of the decree.

In Parker v. United States, 1 Cir., 135 F.2d 54, it was held that the acts of a party to a cause prior to the entry of an in-junctive order are not contemptuous of the order subsequently entered regardless of the ultimate effect of the party’s conduct on the ultimate rights of the opposing party to the cause.

This record completely lacks evidence of any contemptuous conduct of petitioners after the entry of the decree of June 5, 1953. They cannot be held in contempt of court for the described acts which were committed before the decree was entered.

Being aware of the rule which extends great weight to the decree of a trial court;adjudging a party to a pending cause to be-in contempt of a decree of the court, we have cautiously reviewed the entire record and have carefully analyzed and considered each and all of the authorities cited to us in the briefs of all of the parties. Having come to the conclusion that the conduct revealed by the record could not as a matter of law amount to a civil contempt, we do not consider it necessary to pass upon the multitude of other questions raised, our decision on the main question being controlling.

Despite our respect for the sanctity of, judicial decrees and a high regard for the Chancellor who entered the decree under attack, we fail to find in this record adequate evidence to support the contempt decree assaulted by the petitioners.

For the reasons stated, the petition for writ of certiorari is granted, the contempt order of April 22, 1955, appeáled from is quashed, and the cause is remanded with directions to dismiss the rule to show cause.

DREW, C. J., and TERRELL, THOMAS and HOBSON, JJ., concur.

ROBERTS and O’CONNELL, JJ., not participating.