text:
    Raul Ernest ALONSO, a/k/a George Alonso, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-2064, 76-2026 and 76-2027.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, Stephen 0. Rushing, Asst. Public Defender, and Richard D. Muga, Legal Intern, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgments appealed are affirmed. The judgment and sentence of the court in case number 76-2026 (trial court no. 76-2366); while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of sentence in case no. 76-2026; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and HOBSON and GRIMES, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    NATIONAL EQUIPMENT RENTAL, LTD., Appellant, v. COOLIDGE BANK & TRUST CO., Appellee.
    No. 76-1903.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1977.

      Guión T. DeLoach, Naples, for appellant.
    John F. Stanley, of Vega, Brown & Nichols, P. A., Naples, for appellee.
   GRIMES, Judge.

This appeal involves a question of when a foreign judgment becomes a lien upon Florida real property.

Both parties had obtained judgments against Richard Laneau in states other than Florida. Appellant’s judgment was prior in time, and a certified copy of this judgment had been recorded in Collier County before the date of the entry of appellee’s judgment. However, appellee immediately filed suit in Collier County seeking to establish its foreign judgment as a Florida judgment and to foreclose its judgment lien on real property owned by Laneau in that county. Appellant was not joined as a party to this suit. The court entered judgment in favor of appellee. Laneau’s real property was then sold at public auction to satisfy the judgment, and appellee was a successful bidder at the sale.

The appellee then filed the instant suit seeking to quiet the title of its newly acquired property against any claims of appellant. The appellant filed an answer and counterclaim contending that its recorded judgment was a superior lien upon the property when Laneau owned it and that the lien remains effective despite the new ownership because appellant was not a party to the first suit. The court entered a summary judgment quieting title to the property in the appellee.

The appellant relies on Section 55.10, Florida Statutes (1975), which states:

“55,10 Judgments; lien of all, generally
Judgments and decrees become a lien on real estate in the county where rendered when the judgment or decree is recorded in the proper record of such county and in other counties when a certified copy thereof is recorded in the proper record of other counties.”

Is this statute applicable to a foreign judgment which has not been judicially established as a judgment in the courts of Florida? We think not.

It is well settled that a creditor holding a foreign judgment cannot execute upon real property within the situs state until he has reduced the foreign judgment to a judgment of that state. Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538 (1889); 46 Am.Jur.2d, Judgments, Sec. 905. An action predicated upon a foreign judgment is considered as a new and independent action. Milligan v. Wilson, 107 So.2d 73 (Fla.2d DCA 1958). While the validity of the judgment is generally determined by the law of the state of its rendition, the question of whether the court which rendered the judgment had jurisdiction over the subjéct matter and the person is open to challenge. Milligan v. Wilson, supra. A creditor’s bill cannot be maintained on a foreign judgment until the creditor has reduced the foreign judgment to a judgment of the situs state. Hotchkiss v. Martin, 52 So.2d 113 (Fla.1951); Miller v. Security-Peoples Trust Co., 142 Fla. 434, 195 So. 191 (1940). In an early decision, our Supreme Court stated that until a foreign judgment was reduced to judgment in Florida, the judgment holder was merely a “creditor at large.” Carter v. Bennett, 6 Fla. 214, 242 (1885).

We have found no authority which makes a distinction between the need to establish a foreign judgment as a judgment of the situs state in order to obtain execution and a similar requirement as a prerequisite for establishing a lien. Some courts have assumed that foreign judgments cannot be liens until they have been reduced to local judgments. Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220 (1935); Cook's Estate v. Brown, 346 Mo. 281, 140 S.W.2d 42 (1940); Aetna Casualty & Surety Co. v. Whaley, 173 Va. 11, 3 S.E.2d 395 (1939). Florida Real Property Practice I (Second Edition), § 9.103 (Fla. Bar Continuing Legal Educ. Practice Manual No. 14, 1971) announces the same rule:

“Sometimes the examiner will find of record in the deed books certified copies of court proceedings in foreign states. It may be said that the record of those proceedings in the deed book or in the 0. R. book is of no effect, except to inform the examiner that the records do exist in the offices of the courts whose clerks certified the copies. The record of a judgment entered in the court of a foreign state has no effect whatsoever on the title to the property of the defendant in this state. The holder of that judgment probably has the right to sue on it in the Florida courts and recover a judgment that, if the necessary steps are taken, may become a lien on property of the defendant, but the mere recording of a certified copy of the judgment does not have that effect.”

In view of the need for stability in real property title law and in the absence of compelling authority to the contrary, we hold that the filing of a certified copy of a foreign judgment does not create a lien upon real property in the county in which it is filed. A lien is established only when the creditor establishes the foreign judgment as a Florida judgment. In effect, we construe Section 55.10 as referring only to Florida judgments. See Dade Fed. Sav. & L. Ass’n v. Miami Title & Abstract Div., 217 So.2d 873 (Fla. 3d DCA 1969).

Since appellant’s foreign judgment had not been made a Florida judgment when Laneau owned the property, appellant never had a lien on the property. Therefore, appellee was entitled to have its title quieted against appellant’s claims.

AFFIRMED.

BOARDMAN, C. J., and HOBSON, J„ concur.


author: McCORD, Chief Judge.

text:
    CITY OF DELAND, a Municipal Corporation, Appellant, v. DRI-CLIME LAMP CORP., a Foreign Corporation; Keller Kitchen Cabinets, Inc., a Florida Corporation, and Air Control Products, Inc., a Florida Corporation, Appellees.
    No. Z-266.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1977.
    William B. Wilson and Walton B. Hallow-es, Jr. of Maguire, Voorhis & Wells, Orlando, Larry Sands, Daytona Beach, for appellant.
    John C. Briggs and Hubert W. Williams of Robertson, Williams, Duane & Lewis, Orlando, Alfred A. Green, Jr., William E. Loucks, Daytona Beach, for appellees.
   McCORD, Chief Judge.

City of Deland, appellant here, plaintiff below, appeals final judgments against appellant and in favor of appellees Dri-Clime Lamp Corporation, Keller Kitchen Cabinets, Inc., and Air Control Products, Inc., in an action brought by appellant against appel-lees on theories of negligence and breach of implied warranty. The suit resulted from a fire which destroyed a building leased by the City to Keller. Appellee Air Control was a guarantor of performance by Keller of its lease. The leased building was a former hangar of the Navel Air Station located outside of Deland which was conveyed by the United States Government to the City of Deland with two additions subsequently constructed by the City.

Keller used the property for the manufacture of wooden kitchen cabinets. The manufacturing process involved the staining and sealing of the cabinets with flammable material. Keller had installed a motorized wooden slat conveyor to be used in its manufacturing process, and the flammable stains and sealers tended to accumulate on the wooden slats. Keller purchased from appellee Dri-Clime Lamp Corporation three infra-red drying ovens to accelerate the drying process of the stain and sealer. These ovens were “U” shaped devices that fit over the existing conveyors. They were delivered to Keller in a subassembled state and were assembled on the site by Keller employees under the supervision of a Dri-Clime representative. The fire apparently started from an electric malfunction of these drying ovens. The building contained a sprinkler system that had been inoperative during the entire time Keller occupied the premises. Prior to the fire, the inoperative sprinkler system was discussed at a City Council meeting, but the City decided not to spend $400 per year which would be necessary to maintain the system and left it inoperative.

When the fire started, Keller employees first attempted to extinguish it used C02 fire extinguishers. Their efforts failed due to a fan which prevented effective use of the extinguishers. Keller employees then went to two collapsible-type water fire hoses and pulled them out approximately one foot and found no water coming out of them. The Deland Fire Department was called but was unable to effectively fight the fire. The deceased fire chief of Deland testified, by way of earlier deposition, that he had a duty to inspect the building but was never requested to do so by either the City Manager or the Airport Manager, although he did assist Keller with its firefighting procedures at Keller’s request. At the close of appellant City’s evidence, appel-lee Keller renewed a previous motion to dismiss which had been denied before trial. It was based upon appellee Keller’s first affirmative defense by which it contended that under the terms of the lease, the City’s only recovery for loss it suffered due to the destruction of the premises by fire would be the recovery of the insurance maintained by Keller to protect the City from such fire loss. We agree and reverse. The motion to dismiss should have been granted.

At the close of all evidence, all parties moved for directed verdicts and the motions were denied. The jury returned its verdict in favor of the City and against the defendants and assessed total damages in the amount of $150,000. It apportioned negligence of the respective parties as follows: Dri-Clime — 0%; Keller and Air Control— 50%; City of Deland — 50%. Final judgment was entered in favor of Dri-Clime. The City had received $100,000 insurance proceeds for the fire loss from the policy maintained by Keller, as was required by Keller under the terms of the lease. The court set off in favor of Keller the $100,000 insurance proceeds against Keller’s and Air Control’s 50% of the total verdict and entered final judgment in favor of appellees Keller and Air Control Products. The City was thus left with a $50,000 deficit between the insurance proceeds and the total damages found by the jury.

The City contends there was no negligence on its part, and that the trial court therefore erred in not granted its motion for a directed verdict. It contends that the sole cause of the fire and its loss was negligence of appellees; that the trial court erred in setting off the proceeds of the insurance in favor of appellees Keller and Air Control. We find no error as to either contention. As stated heretofore, Keller’s motion to dismiss should have been granted. Negligence should not have been an issue. The lease provided as follows:

“XVI. INSURANCE.
Tenant shall maintain insurance, during the term of this lease, with such insurers and coverages, and in such amounts as shall be approved by the Landlord, covering and insuring:
a,. * * *
b. The Demised Premises against loss by fire, ... to the extent of the fair insurable value thereof, for the mutual benefit of Landlord and Tenant, and for all moneys collected from such insurance shall be used and applied toward full compliance with the obligations of the Tenant under the ‘Repairs Clause’ of this lease or of the Landlord under the ‘Damages Clause’ of this lease, unless this lease is can-celled by Landlord pursuant to the ‘Damages Clause.’ ”

Under the “Repairs Clause” of the lease, the tenant was required to keep the premises in a good and safe condition, and the tenant would be liable for any cost and for any damages sustained by landlord resulting from the negligence of the tenant. Under the “Damages Clause” the landlord was obligated to rebuild the premises to the extent of the insurance coverage if wholly or partially damaged or destroyed by fire.

The landlord City contends that the tenant Keller should not benefit from its own negligence by being given a set-off for the insurance proceeds. We disagree. While there does not appear to be a Florida decision on this point, the question has been ruled upon by other jurisdictions. Although there is some conflict, we consider the better view to be that taken by courts which do not allow recovery for negligence when the premises are insured pursuant to a lease or contract against loss through destruction by fire. In an early case, Newport News Shipbuilding & Dry Dock Co. v. United States, 34 F.2d 100 (4th Cir. 1929), Newport had entered into a contract to repair a steamship owned by the United States, and the United States agreed to continue insurance on the vessel during the time it was in Newport’s yard. The day before the repairs would have been completed, Newport’s negligence caused a fire resulting in extensive damages. The court held that the insurance was for the benefit of both parties and said:

“To say that the meaning of the provision in the contract, as to insurance was that the United States was only to protect itself, and to allow recovery from the shipyard for the total of the damages, would be to place the parties in the exact situation they would have been in without any provision whatever in the contract as to insurance. Something must have been intended by the parties when the insurance provision was written in the contract.”

Later, the Supreme Court of Missouri in Monsanto Chemical Co. v. American Bitumuls Co., 249 S.W.2d 428 (Mo.1952), held to the same effect. The Supreme Court of Mississippi ruled in like effect in Fry v. Jordan Auto Company, 224 Miss. 445, 80 So.2d 53 (1955). The California appellate court in Liberty Mutual Fire Insurance Co. v. Auto Springs Supply Co., 59 Cal.App.3d 860, 181 Cal.Rptr. 211 (2 DCA 1976), ruled in like manner stating:

“It is quite obvious from these provisions that the parties to the lease and the sublease all intended that the proceeds of Liberty’s fire insurance policy, maintained by the lessee at (sublessee’s) expense, were to constitute the protection of all parties to the lease documents against fire loss to the extent of the policy limits. * * * “If subrogation were permitted here, (sublessee) rather than the proceeds of Liberty’s policy, would become the source of the funds used to repair the fire damage , , . and it would be most inequitable to hold (sublessee) responsible for a fire loss which it thought it had completely avoided through its indirect payment over some nine years of the premiums due on Liberty’s policy and had also acted in reliance upon this belief by failing to take out corresponding fire insurance of its own. It would also be a windfall for Liberty to have collected these premiums over the years for its assumption of this risk and then when the risk actually occurred, by means of this litigation, to transfer the risk wholly to (sublessee) — the entity which paid Liberty’s premium for years to avoid this very risk.”

See also Fred A. Chapin Lumber Co. v. Lumber Bargains, Inc., 189 Cal.App.2d 613, 11 Cal.Rptr. 634 (4th DCA 1961); Gordon v. J. C. Penney Co., 7 Cal.App.3d 280, 86 Cal. Rptr. 604 (3rd DCA 1970); Mayfair Fabrics v. Henley, 97 N.J.Super. 116, 234 A.2d 503 (1976); Koennecke v. Waxing Cedar Products, Ltd., 543 P.2d 669 (Or.1975); Waterways Terminals v. P. S. Lord, 406 P.2d 556 (Or.1965).

In Cerny-Pickas & Company v. C. R. Jahn Company, 7 Ill.2d 393, 131 N.E.2d 100 (1955), the lessor and insurance carrier sued the lessee for negligence which resulted in the fire loss of the lessor’s building, machinery and equipment. Under the lease, the lessee was required to turn over the premises at the end of the lease “in good condition and repair (loss by fire and ordinary wear excepted.)” In ruling for the lessee, the Supreme Court of Illinois said:

“Under the construction urged by the lessor, it would be necessary for both parties to the lease to carry fire insurance if they are to be protected, The lessee would have to insure against fires due to his negligence, and the lessor against fires due to other causes. From the lease as a whole we conclude that the lessee was not to be liable for loss by fire regardless of the cause of the fire, and that the parties intended that the lessor should look solely to insurance as compensation for damage caused by any kind of fire.”

Under the lease in the case sub judice, it was the landlord’s responsibility to determine the amount of insurance that would be necessary to insure the premises against loss by fire to the extent of the fair insurable value thereof, and it was the tenant’s responsibility to pay the premiums thereon. The landlord must bear the responsibility and loss for its failure to specify an amount of insurance (on which the tenant must pay the premiums) that would cover the property to the extent of its fair insurable value. We, therefore, find no error in the trial court’s entry of final judgment in favor of Keller and Air Control although such was done for a reason other than that on which we here decide the case. The City knew the purpose for which this building was to be used, and knew or should have known that such use involved a fire hazard. The fire insurance was specifically stated in the lease to be for the benefit of both parties. It was there to cover any fire loss regardless of its cause. The City failed in its obligation under the lease to see that the premises were insured against fire to the extent of their fair insurable value. It, therefore, must bear its loss resulting from such failure.

The final judgments are affirmed.

RAWLS and SMITH, JJ., concur.


author: BOYER, Judge.

text:
    Melvin Leroy LAYTON, Appellant, v. STATE of Florida, Appellee.
    No. FF-306.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1977.

      Michael Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BOYER, Judge.

In this appeal, we review the third trial of the same defendant for the same offenses. After the third trial, the defendant was found guilty of committing a lewd and lascivious act in the presence of a child under the age of 14 and with lewd and lascivious assault upon a male child under the age of 14. Defendant claims that he is entitled to a new trial because the state impermissibly attacked his character through improper cross-examination, and was erroneously permitted to introduce a transcript of the testimony of appellant’s wife taken at a former trial without showing that she was unavailable to testify.

At trial, the state’s ease rested upon the testimony of defendant’s wife Roberta. The state, desirous of introducing certain portions of the wife’s testimony given at a prior trial, attempted to establish her unavailability as a witness through the affidavit of state attorney investigator Russ Car-lysle who attempted to locate Roberta at her former address and place of employment in Jacksonville and in New Jersey. After the trial court ruled that the state had established the wife’s unavailability, certain portions of her testimony were read into the record. Essentially, the wife testified that defendant engaged in rather strange sexual practices. Regarding the incident giving rise to the charges lodged against defendant, she stated that on June 18, 1975, defendant forced her to call his younger son into the bedroom to watch them have intercourse and that later that day defendant forced her to again call the child into the room where she was to perform oral sex on the child. The charges against Roberta, who had been charged along with defendant, were dropped in return for her testimony.

Defendant was the only witness to testify in his behalf. Before he testified, his counsel and the assistant state attorney discussed with the court certain aspects of the state’s expected impeachment on cross-examination. The state indicated that it was going to ask defendant whether he had ever been advised by a psychiatrist that he was a disoriented sexual psychopath and that he was dangerous to children. Defense counsel objected at that time as well as during the proffer of the state’s proposed cross-examination of defendant. Although the trial court indicated that the state would not be permitted to ask the defendant whether he had ever been committed to a mental institution as a mentally disturbed sex offender, the court did give the state permission to ask the defendant whether he had ever been advised that he was a danger to small children and that he had significant psycho-sexual problems, if the proper predicate were laid. Defendant testified on direct examination that he never forced his wife to engage in sexual activities, that he had never engaged in a sexual act with any of the children, and that since he and his wife had been in Florida, they had no sexual relations. Before the state began its cross-examination, defense counsel asked the court if it would be necessary for him to remake his objection to the state’s cross-examination. The court indicated that further objections would not be necessary. The state thereupon proceeded to ask defendant on cross-examination if he had been examined by psychiatrists who advised him that he had a sociopathic personality, could be considered dangerous to small children, and had certain sociopathic problems. Defendant denied that he had been so advised.

Defendant initially claims that the state did not establish that his wife, whose transcribed testimony was introduced at trial, was presently unavailable. We find that point to be without merit. Our review of the record indicates that the state met its burden.

The second point raised by defendant challenges the state’s cross-examination of him. The state may not attack the character of an accused by showing a propensity to commit crimes when the accused has not placed his character in issue. Jordan v. State, 171 So.2d 418 (Fla. 1st DCA 1965). Sub judice, the purpose of the objectionable cross-examination could have had no other purpose than to place defendant’s character in issue. Whether defendant was a socio-pathic personality, could be considered dangerous to small children, and/or had certain sociopathic problems could only serve to prejudice defendant in the eyes of the jurors. The state claims that defense counsel did not make a proper objection to the questions at trial, but it is clear that the trial court, after hearing defense counsel object prior to and during the proffer of the cross-examination, informed defense counsel that no further objection would be necessary. Consequently, while recognizing the seriousness of the crimes for which defendant was found guilty and the fact that three trials have occurred in this cause, we must nevertheless reverse and remand the cause for trial number four because of the irrelevant and prejudicial cross-examination.

REVERSED AND REMANDED.

McCORD, C. J., and RAWLS, J., concur.

      . After the first trial, we reversed and remanded for a new trial. Layton v. State, 346 So.2d 1244 (Fla. 1st DCA 1976). The second trial resulted in a mistrial.

      . Fla.R.Crim.P. 3.640(b) provides:
      “The testimony given during the former trial may not be read in evidence at the new trial unless it is that of a witness who at the time of the new trial is absent from the State, mentally incompetent to be a witness, physically unable to appear and testify, or dead, in which event the evidence of such witness on the former trial may be read in evidence at the new trial as the same was taken and transcribed by the court reporter. Before the introduction of the evidence of an absent witness, the party introducing the same must show due diligence on his part in attempting to procure the attendance of witnesses at the trial, and must show that the witness is not absent by consent or connivance of such party.”


author: BOYER, Chief Judge.

text:
    Michael James MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. FF-417.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1977.
    Rehearing Denied Sept. 9, 1977.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky and Michael H. Davidson, Asst. Attys. Gen., for appellee.
   BOYER, Chief Judge.

The issue to be here resolved is whether the offense of attempted burglary of an unoccupied structure is a felony of the third degree or a misdemeanor of the first degree.

Appellant urges that the trial court erred when imposing a five year sentence pursuant to Section 775.082(3)(d) Florida Statutes (1975) upon adjudicating appellant guilty of attempted burglary of an unoccupied structure in accordance with his plea of guilty.

Section 777.04(4)(c) Florida Statutes (1975) provides:

“If the offense attempted, solicited, or conspired to is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

The Attorney General of the State of Florida, in Opinion 077-4, attempted to construe and interpret several statutes therein cited, and concluded:

“It is my firm opinion that the phrase . . .or any burglary, . . . ’ as used in § 777.04(4)(c), F.S. can have reference only to any burglary of of [sic] the second degree and that the attempted burglary of an unoccupied structure of conveyance is a first degree misdemeanor if the offense is otherwise compatible with the requirements set forth in § 180.-02(3) [810.02(3)], F.S.
# # # * # #
“The phrase ‘ . . .or any burglary, . . . ’ in § 777.04(4)(c), F.S., must be construed to mean any burglary of the second degree. The burglary classified by § 810.02(3), F.S., as a third degree felony is reduced by the operation of § 777.04(d), F.S., to a first degree misdemeanor.”

We must disagree. The statute does not require construction. The legislature exercised its prerogative in passing the statute and may do the same, if it so elects, by amendment. It is within the province of the legislature to punish attempted burglaries more severely than other attempted third degree felonies. The statute clearly provides that if the offense attempted was “any burglary” then the person convicted shall be guilty of a felony of the third degree. Section 775.082 Florida Statutes (1975), entitled “Penalties” provides punishment “For a felony of the third degree, by a term of imprisonment not exceeding 5 years.”

The learned trial judge did not err.

AFFIRMED.

McCORD, C. J., and RAWLS, J., concur.


author: SMITH, Judge.

text:
    Reubin O’D. ASKEW, Governor, Robert L. Shevin, Attorney General, and Gordon G. Oldham, Jr., State Attorney for the Fifth Judicial Circuit, State of Florida, Appellants, v. GREEN, SIMMONS, GREEN AND HIGH-TOWER, P. A., Ben Daniel, Jr., P. A., James A. Shook, P. A., J. Reginald Black and Frederick E. Landt, III, d/b/a Black & Landt, a partnership, and John F. Nicholson, Clerk of the Circuit Court of Marion County, Appellees.
    No. EE-192.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1977.

      Robert L. Shevin, Atty. Gen., Bruce M. Singer and Charles S. Ruberg, Asst. Attys. Gen., Tallahassee, for appellants.
    John M. Green, Jr., and Stephen H. Gray, Green, Simmons, Green and Hightower, P. A., Ocala, for appellees except Nicholson.
    No appearance for appellee Nicholson.
   SMITH, Judge.

The Governor, Attorney General and State Attorney for the Fifth Judicial Circuit appeal from a Circuit Court judgment issuing a writ of mandamus to compel ap-pellee Nicholson, Clerk of the Circuit Court of Marion County, to withdraw orders issued by Nicholson to stop payment of county warrants delivered to the appellee law firms. Marion County ordinance 76-10 authorizes payment of public funds for reasonable attorney fees incurred by any past or present county commissioner in defending successfully a prosecution for violation of the open public meetings law, Section 286.011, Florida Statutes (1975). The principal issues are whether the ordinance violates Article II, Section 5(c), Florida Constitution, and Chapter 145, Florida Statutes, limiting the compensation of state and county officers, or unlawfully authorizes the expenditure of public funds for a private purpose.

A preliminary issue, which we need not decide, is whether mandamus was in any event a suitable remedy to require the clerk to withdraw stop payment orders on the warrants, an act related to his audit function under Article V, Section 16, and Article VIII, Section 1(d), Florida Constitution. See Mayes Printing Co. v. Flowers, 154 So.2d 859 (Fla. 1st DCA 1963). In order to secure a decision on the merits and to avoid further trial court litigation on what is essentially a matter of law, counsel for the Governor, Attorney General and State Attorney at oral argument abandoned their position that the action required of the clerk was discretionary rather than ministerial and so not subject to mandamus. With the case in this posture, we have concluded also that the circuit court did not err in permitting those officers to intervene in what previously was a controversy between the warrant payees and the clerk, who has not appealed. Allowing intervention, the circuit judge authorized intervenors to raise any issue the clerk might have raised concerning the validity of the ordinance and, in his discretion, did not restrict the interve-nors to participation “in subordination to, and in recognition of, the propriety of the main proceeding.” Fla.R.Civ.P. 1.230. Ap-pellees’ cross-appeal has not demonstrated error in the trial court’s order allowing the Governor, Attorney General and State Attorney full participation as intervenors.

Ordinance 76-10 does not authorize an unlawful supplement to the compensation of county officers provided by Article II, Section 5(c) of the Constitution and Chapter 145, Florida Statutes (1975). It is of course true that Section 145.031 specifies salaries for county commissioners which under Section 145.17 “shall be the sole and exclusive compensation of the officers whose salary is established.” But, though the compensation of sheriffs is similarly fixed by Section 145.071, and is subject to the same prohibition of additional compensation, the legislature has authorized reimbursement of attorney fees incurred by law enforcement officers in successfully defending civil or criminal actions against them for conduct arising out of the performance of their duties. Section 111.065, Florida Statutes (Supp.1976). It is evident that the legislature did not consider such reimbursement additional compensation proscribed by Section 145.17. Moreover, there is no difference for purposes of this issue between reimbursement of criminal litigation expenses and reimbursement of civil litigation expenses. This court has approved municipal provision of a legal defense for a municipal officer sued as such for defamation. Duplig v. City of South Daytona, 195 So.2d 581 (Fla. 1st DCA 1967).

The closer question is whether ordinance 76-10, by authorizing payment of county funds for the commissioners’ defense of criminal charges arising under the open public meetings law, is invalid as expending public funds for a private purpose. We note that the ordinance in question is narrowly drawn; that it does not purport to authorize reimbursement or payment for legal expenses of commissioners charged with bribery, acceptance of unauthorized compensation, or other general criminal statutes; and that the ordinance benefits only those commissioners whose alleged offense was conducting public business in private, and who were not found guilty. The charge made against the commissioners in this case, which was abandoned at trial, was that they knowingly and unlawfully attended a closed county commission meeting to take official action in locating and establishing a public road.

In enacting ordinance 76-10, the county commission found a public purpose would be served by paying the attorney fees of commissioners and other persons in county office who were unsuccessfully prosecuted:

“It is necessary to encourage the continued participation in county government by individuals appointed to various county agencies, authorities, boards and commissions by limiting the potential liability to said persons of having to expend their own funds for the payment of reasonable attorney’s fees when said persons are charged with violation and/or violations of any of the provisions of the Government in the Sunshine Law of the State of Florida, Chapter 286.011, Fla.Stat., when said persons are subsequently acquitted and/or the charges against said persons are dismissed.
“It is necessary to encourage all qualified persons to seek election to the Board of County Commissioners of Marion County, by alleviating the potential liability to them of having to expend their own funds when said persons are charged with violation and/or violations of any of the provisions of the Government in the Sunshine Law of the State of Florida, Chapter 286.011, Florida Statutes and said persons are subsequently acquitted and/or the charges are dismissed against said persons.”

Having no concern for the wisdom of the ordinance, we find that it is addressed to a declared public purpose which has been recognized by the legislature in other contexts. Section 112.44, Florida Statutes (1975) authorizes the Senate to provide for payment of reasonable attorney fees and costs of an officer suspended by the Governor and reinstated by the Senate. Section 111.065, Florida Statutes (Supp.1976) makes similar provision for law enforcement officers who successfully defend criminal and civil prosecutions for conduct arising out of their official duties. In the light of these legislative precedents, we cannot say the legislative authority in Marion County unlawfully imagined a public purpose in bearing with public funds certain costs of unjustified criminal prosecutions of county officers for meeting as a public body otherwise than as permitted by Section 286.011. The judicial question is not whether we would more fervently desire legislation benefiting police officers than legislation benefiting county commissioners, but rather whether the Constitution or statutes deny counties the legislative power to find a public purpose in such provisions. Neither the public meetings law nor any statute to which our attention has been called proscribes such reimbursement.

Appellants argue that the impropriety of the ordinance’s finding of a public purpose is beyond debate. Their brief states:

“[Appellants] submit that the public or county interest is in the prosecution of said public officials and not in their defense. There is no public or county interest in defending a public official accused of violating the Government in the Sunshine Law, Section 286.011, F.S., because in fact the public trust requires that public officials be held accountable in strictly complying with Chapter 286, Florida Statutes.”

We agree that public meetings should be held in compliance with Section 286.011, that officials violating that law may properly be prosecuted, and that there is no public interest in defending guilty officials from prosecution. But it does not follow, absent general law declaring it, that the legislative body of a county is incompetent to relieve innocent officials, prosecuted as officials for conduct while discussing or taking action on county business, from the financial burden of unjustified prosecutions. State Dep’t of Citrus v. Huff, 290 So.2d 130 (Fla. 2d DCA 1974) is not to the contrary, for it involved no enabling legislation. Decisions from other states relied on by appellants were concerned with entirely different circumstances.

The other points urged by appellants are unavailing.

AFFIRMED.

MILLS, Acting C. J., and ERVIN, J., concur.


author: PER CURIAM.

text:
    Robert C. BROWARD, Appellant, v. Tommy D. BeSHEAR and Johnnie Sue BeShear, his wife, Appellees.
    No. BB-313.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1977.
    John F. Fannin, Milam & Wilbur, Jacksonville, for appellant.
    Richard G. Weinberg, Weinstein, Weinberg & Conn, St. Augustine, for appellees.
   PER CURIAM.

AFFIRMED. See Ortega Company v. Justiss, 175 So.2d 554 (Fla. 1st DCA 1965) and Miller v. MacGill, 297 So.2d 573 (Fla. 1st DCA 1974).

MILLS, Acting C. J., ERVIN, J., and JOPLING, WALLACE, Associate Judge, concur.


text:
    Mack Lee DIXON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. BB-485.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1977.
    James Ron Shelley, Public Defender, and Barry A. Cook, Asst. Public Defender, Milton, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The trial court having modified appellant’s sentence in accordance with law and this court’s order entered December 14, 1976, the judgment and sentence are

AFFIRMED.

BOYER, Acting C. J., and MILLS and SMITH, JJ., concur.


text:
    Richard Calvin BROWN, Appellant, v. FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. GG-155.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1977.
    James P. Judkins, Davis & Judkins, Tallahassee, for appellant.
    E. Harper Field, Keen, O’Kelley & Spitz, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Summers v. Jackson, 307 So.2d 235 (Fla. 4th DCA 1975) and Government Employees Insurance Co. v. Butt, 296 So.2d 599 (Fla. 3d DCA 1974). The motion for attorney’s fees is Denied.

RAWLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


text:
    Evelyn LEAF, Appellant, v. Donald FRERE, Appellee.
    No. 76-1328.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1977.
    Stuart J. Susser, Miami, for appellant.
    Rash & Katzen, South Miami, for appel-lee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed on the authority of Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967); Heaton v. Heaton, 304 So.2d 516 (Fla. 4th DCA 1974); Doyle v. Doyle, 307 So.2d 862 (Fla. 4th DCA 1975).


text:
    Lloyd DAMSEY, M.D., P.A., d/b/a the Medical Clinic, Appellant, v. James W. FORSTER, M.D., Appellee.
    No. 76-1675.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1977.
    Nathan Kurtz, Miami, for appellant.
    A. M. Schwitalla, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed on the authority of Damsey v. Mankowitz, 339 So.2d 282 (Fla.3d DCA 1976), cert. den. 345 So.2d 421 (Fla.1977).


text:
    Charles Louis EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 77-116.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed.

The judgment and sentence, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of sentence; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and McNULTY and GRIMES, JJ., concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Johnson WASHINGTON, Jr.
    No. 55806.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
    Rehearing Denied Sept. 2, 1977.
    Jacques F. Bezou, New Orleans, Garon, Brener & McNeely, New Orleans, for defendant-appellant; David E. Kendall, New York City, NAACP Legal Defense and Educational Fund, Inc., of counsel.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Walter L. Smith, Jr., Asst. Atty. Gen., Norman J. Pitre, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM:

Defendant Johnson Washington Jr. was charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, he was found guilty and was sentenced to death. This Court affirmed his conviction and sentence on appeal, rejecting defendant’s contention that the death penalty provision of La.R.S. 14:30 was unconstitutional. 321 So.2d 763 (La. 1975). The Supreme Court of the United States granted defendant’s petition for cer-tiorari, vacated our judgment with respect to the death penalty, and remanded the case to this Court, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1213 (1976), with the following mandate:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on July 6, 1976, by this Court that the imposition and carrying out of the death penalty in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The judgment of the Supreme Court of Louisiana in this cause is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and that this cause be remanded to the Supreme Court of the State of Louisiana for further proceedings.
NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

In accordance with this mandate, the death penalty imposed upon defendant must be annulled and set aside. For the reasons set forth in State v. Jenkins, 340 So.2d 157 (La.1976), we have concluded that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe constitutional penalty established by the legislature for criminal homicide at the time the offense was committed. See La.R.S. 14:29 et seq. In the instant case, the offense was committed on July 4, 1973, at which time the most severe valid penalty for homicide was imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. See La.R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1.

Accordingly, for the reasons assigned in our original opinion, defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to resentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.


author: JONES, Judge.

text:
    W. H. COX, II, Plaintiff-Appellee, v. SOUTHWESTERN ELECTRIC POWER COMPANY et al., Defendants-Appellants.
    No. 13262.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    En Banc. Rehearing Denied June 22, 1977.

      Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for Southwestern Elec. Power Co., defendant-appellant.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for Hartford Fire Ins. Co., defendant-appellant.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for plaintiff-appellee, W. H. Cox, II.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

In consolidated cases, Southwestern Electric Power Company and Hartford Insurance Company appeal a solidary judgment against them arising out of a fire loss to plaintiff’s house. Hartford also complains of being cast for penalties and attorney’s fees. Plaintiff answered the appeals, seeking an increase in the amounts awarded. We affirm.

On October 18, 1973, a house recently purchased by plaintiff was damaged by a fire caused by the negligence of employees of Southwestern. Southwestern was immediately notified of the fire and admitted liability. Plaintiff also immediately notified his fire insurer, Hartford. The house was unoccupied but was being advertised for rental when the fire occurred.

After the fire, Southwestern retained General Adjustment Bureau (G.A.B.) to make an estimate of the damage. James Prock, a local contractor, estimated the damage for G.A.B. at $16,374.10. Plaintiff was not furnished a copy of this estimate until December 21, 1973.

Plaintiff had no previous experience with fire loss or in the construction field, and was not satisfied that this amount would take care of all damage to his house, and particularly any hidden damage. He then obtained other estimates ranging from $18,-483 to $31,729. This further caused plaintiff to doubt that any contractor would give a firm bid which would include all hidden damage.

During this time, Southwestern maintained the position that it would pay no more than the Prock/G.A.B. bid and would require a complete release upon payment. Although Hartford was directly liable to plaintiff under the fire insurance policy on plaintiff’s house, Hartford would offer to pay no greater amount than Southwestern would offer in order to guarantee full recovery under its right of subrogation of all amounts paid to plaintiff.

Plaintiff then engaged Stephen Sipes, a local contractor, to repair the fire damage and substantially remodel the damaged house. Plaintiff instructed Sipes to carefully distinguish the work attributable to each undertaking and maintain accurate cost records on each phase of the work.

Almost one year after the fire, plaintiff brought this proceeding against Southwestern for the fire loss. Hartford sued plaintiff and Southwestern on the same day, asking for a judgment declaring Hartford’s obligation to plaintiff under the insurance policy be limited to $16,374.10 and declaring its right to full indemnity against Southwestern for any amount paid by it to plaintiff.

When the repairs were finally completed, plaintiff sent Hartford formal proof of loss reflecting the cost of repairs as $42,761.07. More than 60 days later, plaintiff filed a supplemental petition joining Hartford as a defendant and seeking penalties, attorney’s fees and the cost of repairs.

The lower court awarded plaintiff judgment for $35,075.44 against both defendants, in solido, for the fire loss and cast Hartford for $10,000 attorney’s fees and 12 percent statutory penalties.

Southwestern contends the trial court award was excessive, that it was error to award $2,000 as lost rental income, and that plaintiff should be found to have failed in his duty to mitigate damages. Hartford urges that its plea of prescription should have been sustained and that it should not have been found to have been arbitrary and capricious and cast with penalties and attorney’s fees. Plaintiff seeks to increase the award for damages and attorney’s fees.

The lower court was presented with conflicting testimony as to the extent of damage and cost of repairs. Both contractors, Sipes and Prock, testified and were examined extensively. Their testimony differed as to the effects of the fire, smoke and water on the house, the extent of damage and amount of replacement and reconstruction required to restore it to its former condition. Two other contractors from whom plaintiff obtained repair estimates also testified.

Defendants argue plaintiff should have employed one of the other contractors who had offered to restore plaintiff’s house for substantially less cost than the amount finally charged by Sipes. However, the less expensive work proposals of the other contractors did not include substantial items of repair performed by Sipes. In written reasons for judgment, the lower court stated it was impressed by the testimony of plaintiff’s contractor, Sipes, and was satisfied the evidence established the extent of damage and cost of repairs at $33,075.44. The record supports this conclusion. Canter v. Koehring, 283 So.2d 716 (La.1973); Bice v. Southside Motors, Inc., 344 So.2d 78 (La. App. 2d Cir. 1977).

The trial court also held plaintiff was entitled to recover a reasonable rental of $400 per month for the five months period it would have taken to repair the house. Plaintiff is entitled to recover this loss of income directly caused by the fire, and the amount awarded is adequately supported by the evidence.

Southwestern insists the delay in commencing repair, and failure to immediately dry out the water-soaked house after the fire substantially increased the amount of damage to the structure. Southwestern asserts plaintiff’s failure to mitigate his damages should reduce the damages recoverable by him to that amount he would have suffered had he taken this action. The lower court found plaintiff took such precautions as could reasonably be expected to minimize the damage. Neither of the defendants, both more knowledgeable in this area than Cox, informed him of the actions they now demand he should have taken. With regard to the action a reasonable man should have known to take, the testimony of two firemen at trial indicates neither, although familiar with house fires, seemed to know of the special equipment or services defendants would have required plaintiff to use. Additionally, the evidence does not clearly show such action, if taken by plaintiff, would appreciably reduce the amount of repair work necessary. The decision of the lower court in this regard is correct. Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968).

Hartford complains its actions toward plaintiff were not arbitrary and capricious so as to justify holding it for penalties and attorney’s fees. Within weeks after the fire Hartford admitted the cost of repair was at least the amount of the Prock bid, $16,374.61. However, Hartford never offered this amount to plaintiff other than with a stipulation that it would require a full release of his claim. Even when Hartford filed the declaratory judgment proceeding admitting liability for $16,374.61, it did not deposit that sum with the court as tender.

Even after plaintiff submitted a formal proof of loss to Hartford in April, 1975, Hartford did not tender the amount for which it admitted liability nor make any payment within 60 days. The lower court properly assessed Hartford with penalties and attorney’s fees. LSA-R.S. 22:658; Sensat v. State Farm Fire & Casualty Company, 176 So.2d 804 (La.App. 3d Cir. 1965); Guillory v. New York Fire and Marine Insurance Company, 201 So.2d 366 (La.App. 3d Cir. 1967); Foster v. Western World Insurance Company, 339 So.2d 395 (La.App. 1st Cir. 1976).

The trial judge correctly overruled Hartford’s exception of prescription which was based on Cox’s failure to bring suit against Hartford for over a year after the loss, as required by LSA-R.S. 22:691.

The filing of the declaratory judgment proceeding by Hartford fulfilled the requirement of the statute, i. e., to sustain an action on a fire insurance policy, proceedings must be “ . . . commenced within twelve months next after inception of the loss.” To require plaintiff bring another proceeding on the policy to prevent prescription from running on his claim, when Hartford had already filed a proceeding to have its liability set, would be to require plaintiff to perform a vain and useless act.

We also find an additional ground exists for rejecting Hartford’s plea of prescription. Hartford’s continuing and unequivocal assurances to plaintiff of its liability coupled with the implication it gave that it was only waiting for plaintiff and Southwestern to arrive at a mutually satisfactory damage figure additionally operates as a waiver of the prescription. Brocato v. Sun Underwriters Insurance Company of New York, 219 La. 495, 53 So.2d 246 (1951); P. O. P. Construction Company v. State Farm Fire and Casualty Company, 328 So.2d 105 (La.1976).

In his answer to the appeals, plaintiff asks that we increase the lower court’s award of attorney’s fees to compensate him for additional work performed on appeal. After examining the itemization of hours worked, prepared by plaintiff’s attorney, we are satisfied the amount awarded by the trial judge is sufficient to compensate the attorney for the time spent in preparation of his case against Hartford, both at trial and on appeal.

For the foregoing reasons the judgment of the trial court is affirmed. Southwestern Electric Power Company and Hartford Fire Insurance Company are to pay all costs.

Affirmed.

      . This case was consolidated at trial and on appeal with Hartford Fire Insurance Company v. W. H. Cox, II, et al., 348 So.2d 1256 (La. App., 2d Cir. 1977) (#13,263).

      . Although plaintiff obtained judgment against Hartford for $35,075.44, he was entitled to penalties only on $33,075.44 because the $2,000 awarded by the trial court for lost rent was not included in his formal proof of loss.

      . “ * * * No su¡t or acyon on th¡s p0iiCy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”


text:
    HARTFORD FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. W. H. COX, II, et al., Defendants-Appellees, and Southwestern Electric Power Company, Defendant-Appellant.
    No. 13263.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    En Banc. Rehearing Denied June 22, 1977.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for appellant, Hartford Fire Ins. Co.
    Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for appellant, Southwestern Elec. Power Co.
    Cook, Clark, Egan, Yancey & King by Gordon E. Rountree, Shreveport, for W. H. Cox, II, appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

In consolidated cases, Southwestern Electric Power Company and Hartford Insurance Company, appeal a solidary judgment against them arising out of a fire loss to plaintiff’s house. Hartford also complains of being cast for penalties and attorney’s fees. W. H. Cox answered the appeals, seeking an increase in the amounts awarded.

For the reasons given in Cox v. Southwestern Electric Power Company, 348 So.2d 1252 (La.App., 2d Cir. 1977) ( # 13,-262), the judgment of the trial court is affirmed. Southwestern Electric Power Company and Hartford Fire Insurance Company are to pay all costs.

Affirmed.

      . This case was consolidated at trial and on appeal with Cox v. Southwestern Electric Pow-ar Company, 348 So.2d 1252 (La.App., 2d Cir. 1977) (# 13,262).


author: MARVIN, Judge.

text:
    Thomas Ray JOHNSON, Plaintiff-Applicant, v. MARVIN CUTRER CONTRACTOR, INC., et al., Defendants-Respondent.
    No. 13312.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1977.

      Booth, Loekard, Jack, Pleasant & Lesage by James E. Bolin, Jr., Shreveport, for plaintiff-applicant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-respondent.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

On plaintiffs application, we granted alternative supervisory writs to review the lower court’s ruling on an exception of improper cumulation of a tort action and a workmen’s compensation action. Art. V, § 10 La.Const.; Arts. 462, 463 La.C.C.P.

Plaintiff was injured while a guest passenger in an automobile of his corporate employer. The corporation’s president, driver of the car, was killed in the accident. Plaintiff’s demands against the corporation were for workmen’s compensation and against the driver’s estate were for personal injury damages.

Joined as defendants were several insurers whose policies allegedly “covered” these and other claims arising out of the accident. Among these defendants was Bituminous Casualty Corporation. Bituminous allegedly insured the workmen’s compensation liability (of the corporation) in one policy. Bituminous also allegedly insured the corporation against tort liability under another policy, with the automobile in question being an insured vehicle and the corporate president being an insured driver.

In support of its exception of improper cumulation and misjoinder, Bituminous argues that the actions are not mutually consistent; that they do not employ the same form of procedure; and that there is no community of interest between the parties. C.C.P. Arts. 462, 463. Bituminous contends that while there are some common factual issues, the distinction between the legal issues is “fundamental.” The lower court agreed and ordered plaintiff to elect which of the two actions he desired to pursue against Bituminous and to delete from his petition all references to the other action. Plaintiff was allowed 20 days in which to make the election and deletion or suffer dismissal. We reverse.

C.C.P. Art. 462 (cumulation against a single defendant) and C.C.P. Art. 463 (cumulation against plural defendants) are similar in approach, according to the Official Revision Comments. While C.C.P. Art. 462 is the more pertinent article as to Bituminous’ exception, we shall accept Bituminous’ contention that the real parties are the alleged insureds of Bituminous, preter-mitting the question of standing. See Ocean Acc. & Guar. Corp. v. Robert Jefferson & Son, 44 So.2d 730 (La.App.Orl.1950).

The Official Revision Comments (C.C.P. Art. 463(a)) expressly indicate that the requirement of the same form of procedure refers to whether the action is enforceable by ordinary, executory, or summary procedure. The requirement does not refer to liberalized evidentiary and procedural rules in workmen’s compensation actions as compared to tort actions. Tate, Work of the Appellate Courts 1968-1969, 30 La.L.R. 286, 288.

Venue and jurisdiction in plaintiff’s actions are proper. C.C.P. Art. 462(1). The procedure applicable to each action is ordinary. C.C.P. Art. 462(2). We also find that the cumulated actions are mutually consistent. ibid.

While the articles here under consideration were not discussed there, our Supreme Court considered in Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974), whether a jury trial request could be defeated by joining as a principal party defendant, the State, against whom jury trial is forbidden by law. The court said the “better practice” is to permit but one trial with the judge deciding some issues and the jury deciding others. Likewise, the workmen’s compensation law envisions the employer, as well as the employee, joining a tortfeasor as a defendant in circumstances similar to this ease. R.S. 23:1101.

In Miller v. Commercial Union Companies, 305 So.2d 560, 562, 563 (La.App.2d Cir. 1974), we noted that our cumulation articles were liberal and that

“A plaintiff may cumulate against a defendant all consistent actions, even though based on different grounds

providing other procedural requirements were satisfied. We are not persuaded differently by McCormick v. Kansas City Southern Ry. Co., 11 F.2d 670 (U.S.D.C., W.D.La.1926).

“ ‘. . . The duties and obligations of persons who through their fault injure others to respond to the injured person in damages are fixed by article 2315 of the Civil Code. The fact that the injured person is an employee of another does not affect these obligations. Whether the response is to be made through an action brought by the employee or by his employer as subrogee affects neither his rights nor his obligations.’ ” Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269, 272 (1958).

In Brown v. Crown-Zellerbach Corporation, 112 So.2d 150 (La.App. 1st Cir. 1959), it was also recognized that there is but one cause of action against a tortfeasor for injuries sustained by an employee and that this cause may be asserted by either the employee or the employer for reimbursement of compensation paid. In Brown, the court noted that the workmen’s compensation action and the tort action were properly tried together.

Bituminous illustrates its argument of inconsistency by showing the difference in result as to itself depends on whether or not it is decided that plaintiff was in the scope and course of his employment when the accident occurred. Bituminous says if that issue is decided affirmatively, its alleged liability policy would not provide coverage because of a policy exclusion and that if decided negatively, its alleged workmen’s compensation policy would not provide coverage. While this may be true, this fact does not make the cumulated actions inconsistent. The question in the workmen’s compensation action is not one of coverage under the policy but of basic liability of the employer under the workmen’s compensation law, against which Bituminous allegedly insures. In the tort action, the question is one of policy exclusion, but this question is immaterial to the basic tort liability of the driver of the car. The driver of the car may be liable in tort whether or not coverage exists under the alleged policy.

The requirement of mutual consistency in C.C.P. Art. 462(2) is imposed on the cumula-ted actions and not on the alleged defenses to the cumulated actions by a defendant in Bituminous’ circumstances. It does not avail Bituminous to contend that the requirements of the Code of Civil Procedure are not met because of alleged inconsistent defenses.

Where there is but one accident to an employee, the employee may cumulate his action against the employer for workmen’s compensation and his action against the tortfeasor for negligent injury without pleading in the alternative. Brown, supra. Marquette Casualty Company, supra. The fact that one insurer under separate policies insures the liability of each defendant is immaterial. As we said in Miller, supra, although the liability of defendants is based on separate causes of action, the causes of action arise out of the same facts. Bituminous wears two hats because it elected to do so, not because the law required. If plaintiff had brought separate actions against the employer and the tortfeasor, Bituminous’ predicament would be the same. Either this plaintiff was or was not within the course and scope of his employment when injured. The liability of the tortfeasor, however, does not depend on resolution of this issue and the inconsistency Bituminous alleges and illustrates, on examination, is revqaled paralogistic.

The articles of our Code of Civil Procedure are to be construed liberally in the interest of fairness to the litigants and of judicial efficiency. C.C.P. Art. 5051.

We also observe that the lower court erred in ordering an election of actions, as opposed to requiring separate trials, without some evidence of unusual circumstances, inconsistent results, or prejudice to a party. See Comment (b), LSA-C.C.P. Art. 464; Tate, Work of the Appellate Courts 1968-1969, 30 La.L.R. 286, 288 (1969).

Nothing we say here, however, prevents the lower court from exercising its discretion under C.C.P. Art. 465, by ordering separate trials of cumulated actions if it finds such a course of action is desirable either to simplify the proceedings or to permit a more orderly disposition of the case or when it finds separate trials are otherwise in the interest of justice. Miller, supra.

The alternative writs are made absolute. The ruling of the lower court compelling plaintiff to elect his action and amend his petition is reversed and the exception is hereby overruled, at the cost of Bituminous. We remand for further proceedings consistent with this opinion.

REVERSED, RENDERED and REMANDED.

      . C.C.P. Art. 462 reads:
      “A plaintiff may cumulate against the same defendant two or more actions even though based on different grounds, if:
      “(1) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
      “(2) All of the actions cumulated are mutually consistent and employ the same form of procedure.
      “Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same judicial demand if pleaded in the alternative.” C.C.P. Art. 463 reads:
      “Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
      “(1) There is a community of interest between the parties joined;
      “(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
      “(3) All of the actions cumulated are mutually consistent and employ the same form of procedure.
      “Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same suit if pleaded in the alternative.”


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Milton C. TRICHEL, Jr., et al., Defendants-Appellants.
    No. 13274.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Rehearing Denied, En Banc, Aug. 29, 1977.

      Milton C. Trichel, Jr., Neil Martin Trichel by Milton C. Trichel, Jr., Shreveport, for defendant-appellants.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Bernard L. Malone, Jr. by Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellee.
    Before PRICE, MARVIN, JONES, JJ.

       Hall, J., recused.

   MARVIN, Judge.

Under the quick-taking statute (R.S. 48:441 et seq.), the State claims to have expropriated from defendants for the controlled-access 1-220 Loop around Shreveport, not only .892 acre (shown shaded in diagram following), but as well, any right of access to U.S. Highway # 71 (North Market Street) defendants might have enjoyed from the 523.54 feet remaining as frontage on Highway # 71 after the taking. The lower court agreed with the State. We do not.

This diagram illustrates the controversy:

The State’s petition substantially conforms to the statutory requirements for the taking of the property described therein (the .892 acre). R.S. 48:442, 444. It alleges that the 1-220 facility will be a controlled-access facility and that no person shall have any right of access to, from or across the facility to or from abutting lands. The order of expropriation or declaration of taking (R.S. 48:444) reads in part:

“. . . IT IS . . . FURTHER ORDERED that the full ownership of the property described below ... being a controlled-access facility and no person has any right of access to, from or across said facility to or from abutting lands ... is expropriated and taken for highway purposes . . . [description of .892 acre tract follows, being referred to in part as “Parcel No. 11-3, on a . . . plat of survey . annexed . . . being outlined in red • • •”]

Like the written description, parcel 11-3 outlined in red on the attached survey, does not remotely refer to the 523.54 feet of remaining frontage north of the expropriated tract, but circumscribes the .892 acre description.

R.S. 48:301-307 (Act 129 of 1955) gives broad authority to the several highway agencies of political subdivisions to plan, designate, establish, regulate and provide controlled-access facilities whenever it is determined that traffic conditions, present or future, justify such facilities. R.S. 48:301.

R.S. 48:303 expressly provides that the agency may acquire “private or public property and property rights for controlled-access facilities and service roads, including rights of access ... by .. . purchase ... or expropriation.”

R.S. 48:304 provides that the highway agency “. . . may designate and establish an existing street or highway as . being a controlled-access facility.” This section provides further:

“ * * * [N]otice of intent to establish such controlled-access facility within a municipality or within five miles thereof shall be delivered to the executive offices of such municipality together with plats outlining in reasonable detail the proposal not less than thirty days prior to the undertaking of such construction. . . ”

It is abundantly clear that the State has the authority (1) to expropriate the landowners’ right of access across the 523.54 feet of frontage to the existing Highway # 71 (North Market Street) and (2) to designate that portion of Highway # 71 as a controlled-access highway. It is equally clear, however, that the State has not followed the statutory design, at least insofar as this record reflects, in either instance.

We hold that the State in the instant expropriation proceeding has acquired in full ownership the .892 acre described and has properly obtained judicial declaration that no one has access to, from or across the expropriated .892 acre from abutting lands to the 1-220 facility. We hold that in the instant proceeding the State has not acquired the right of access from the 523.54 feet of frontage on Highway # 71 (North Market Street) north of the .892 acre strip.

In the peculiar procedural posture of this case, the lower court erred in concluding otherwise. The issue was raised by the landowners’ contesting the validity of the taking for a public use or for highway purposes, by filing the requisite motion to dismiss. R.S. 48:447. The landowners do not seriously contest the “public use” and controlled-access purposes for which the .892 acre was taken.

We therefore affirm the lower court’s denying the motion to dismiss insofar as it affects the expropriation of the .892 acre and access rights to, from and across said strip to the 1-220 facility. The motion to dismiss shall not be more broadly construed so as to affect other property or property rights of the landowners and the lower court’s judgment is accordingly limited. In view of this holding, it is not necessary that we pass on other procedural issues concerning statutory compliance. Substantial statutory compliance is found as to the .892 acre expropriation.

Where real estate is properly expropriated under such circumstances for a controlled-access facility, the loss of access rights is a part of the landowner’s severance damage. Where no real estate is to be taken, the right of access to an existing highway may be expropriated as any other property right by complying with the statutes. R.S. 48:301, et seq.; R.S. 48:441, et seq.

As herein limited, we affirm the denial of the motion to dismiss and remand for further proceedings not inconsistent herewith.

At the cost of the State, the judgment below is modified and affirmed, and the case is remanded.


text:
    Thomas L. HARRIS, Plaintiff-Appellee, v. Butler GALLOWAY, Defendant-Appellant.
    No. 13275.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    McKinley, Bruscato & Loomis by Percy A. Ford, Jr., Monroe, for defendant-appellant.
    Johnson & Johnson by Don H. Johnson, Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff and defendant are adjacent property owners on Highland Road in Rich-wood, Louisiana. Defendant appeals from a judgment declaring plaintiff to be the owner of certain disputed land located between them, by virtue of 30 years acquisitive prescription. We affirm.

Plaintiff brought this action against defendant as a possessory action, but converted it into a petitory action by praying that he be declared owner of the disputed property. See LSA-C.C.P. Arts. 3657, 3661.

Defendant first asserts plaintiff did not prove adverse possession of the disputed land for 30 years.

The trial court found although plaintiff’s deed to his property adjacent to the disputed lot was dated July 6, 1946, plaintiff paid for his property and took actual physical possession of both a portion of the tract he purchased and the disputed lot in late April or early May, 1946, which was more than 30 years prior to the filing of this law suit.

Plaintiff constructed a fence on the south line of the disputed lot (which, in conjunction with existing fencing, resulted in total enclosure of the lot) at the time he first possessed the lot in 1946. Plaintiff and other members of his family farmed the whole of the disputed lot commencing in the Spring of 1946 and each year thereafter, including the year this suit was brought. Although a portion of the enclosing fence was removed or had deteriorated at the time of trial, evidence of its existence remained throughout the 30 years. The plaintiff moved a house onto the disputed tract in 1964 and constructed a store building on it in 1963, neither of which remained on the lot at the time of trial. Defendant presented some testimony that plaintiff’s possession did not commence until several years after 1946 to show plaintiff had not been in possession of the land for 30 years. Where there is conflict in the testimony, the trial judge’s evaluation of credibility and findings of fact will not be overturned on appeal in the absence of manifest error. Rothring v. Traveler's Indemnity Company, 338 So.2d 1174 (La.App., 2d Cir. 1976).

The record abundantly supports the trial court finding that plaintiff proved open, notorious, continued, and unequivocal possession of the disputed lot for more than 30 years and this possession was of a sufficient character to establish a prescriptive title. LSA-C.C. Arts. 3499, 3500. Bradford v. Thomas, 344 So.2d 717 (La.App., 2d Cir. 1977); Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952); Clark v. Lee, 221 So.2d 562 (La.App., 2d Cir. 1969).

Defendant’s second assertion is that plaintiff did not meet the burden of making out his title to the disputed land “good against the world”, as required under LSA-C.C.P. Art. 3653(1).

Plaintiff admittedly waived his possessory action and converted it into a petitory action by praying his ownership be recognized. However, he did not thereby judicially confess that defendant enjoyed the possession of the disputed land. LSA-C.C.P. Art. 3657. In fact, the defendant admitted at trial he had never been in actual possession of the disputed land. The trial court correctly held plaintiff need only prove better title than defendant. LSA-C. C.P. Art. 3653(2). Tinney v. Lauve, 280 So.2d 588 (La.App., 4th Cir. 1973); Ryder v. LaCour, 322 So.2d 243 (La.App., 3d Cir. 1975). In any event plaintiff is entitled to judgment recognizing his ownership of the immovable property because his proof of 30 years adverse possession is sufficient to constitute proof of title “good against the world”. LSA-C.C.P. Art. 3653, Bishop Homes, Inc. v. DeVall, 336 So.2d 313 (La. App., 1st Cir. 1976).

Defendant’s final contention is that plaintiff interrupted the running of prescription by acknowledgement.

Plaintiff did admit he did not have record title to the disputed land. After discussions with defendant, plaintiff removed an old dwelling house from the disputed land he had placed there earlier. There was also testimony concerning offers by defendant to sell the disputed land to plaintiff.

While plaintiff admitted his title to the disputed lot was not perfect, he never admitted defendant was the owner or entitled to possession of the lot, and in fact, plaintiff has never relinquished physical possession of the lot. Plaintiff explained his removal of the old dwelling house was to protect it against the possibility he might lose this law suit. These actions of plaintiff are not the express, certain, and definite acts which would show the clear purpose and intent required to interrupt prescription by ac-knowledgement. Roberts v. Cooper, 127 So.2d 369 (La.App., 2d Cir. 1961); Vincent v. Bullock, 192 La. 1,187 So. 35 (1939). The minimal discussions between plaintiff and defendant concerning a possible purchase of the property likewise cannot be considered an acknowledgement of prescription. Es-parros v. Vicknair, 205 La. 699, 17 So.2d 924 (1944).

For the foregoing reasons, the judgment of the trial court is affirmed, appellant to pay all costs.

Affirmed.

      . “Art. 3499. Immovables, possession without title or good faith
      “The ownership of immovables is prescribed for by thirty' years without any need of title or possession in good faith.”
      “Art. 3500. Attributes of possession for thirty-year prescription
      “The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”

      . C.C.P. Art. 3657 provides that when . “the defendant in a possessory action asserts title in himself . . . [he] . . . judicially confesses the possession of the plaintiff (emphasis added). By the express terms of the article, this provision does not apply to the plaintiff in a possessory action. This is recognized in Comment C to Art. 3657.


author: PRICE, Judge.

text:
    Kirwin BROWN, Sheriff, Plaintiff-Appellee, v. William L. HUNTER, Jr., et al., Defendants-Appellants.
    No. 13279.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Rehearing Denied, En Banc, Aug. 29, 1977.

      Hudson, Potts & Bernstein by James A. Rountree, Monroe, for defendants-appellants.
    John S. Stephens, Coushatta, for plaintiff-appellee Kirwin Brown, Sheriff.
    Horton & Jones by Donald G. Horton, Coushatta, for defendant-appellee Sandra Morgan Hunter Braswell.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

The sheriff of Red River Parish brought this concursus proceeding to resolve a dispute between William L. Hunter, Jr., and his former wife, Sandra Hunter Braswell, over proper distribution of the residual proceeds from a sheriff’s sale of property belonging to the community formerly existing between those parties.

Mrs. Braswell, in answer to the concur-sus, alleged that one-half of the $15,747.57 amount deposited by the sheriff should be paid to her for her undivided one-half interest in the property. She also alleged her entitlement to payment of certain judgments obtained against Hunter from his one-half of the proceeds.

The trial court rendered judgment ordering distribution in the manner sought by Mrs. Braswell.

Hunter appealed complaining primarily that Mrs. Braswell had no interest in the deposited fund because the seizing creditor obtained judgment against him, and therefore, the seizure and sale was only of his interest in the property.

This argument is without merit. Both parties admit the property sold belonged to the former community which had not been partitioned. It is also conceded by both that the debt on which the judgment against appellant is founded was incurred during the marriage. Mrs. Braswell is the party whose interest would have been affected by an improper seizure and sale of her undivided interest and she has not raised such an issue. To the contrary, she admits the validity of the sale by answering and claiming an ownership in the proceeds. The funds retained by the sheriff after payment of the judgments shown on the mortgage certificate and costs of the sale remain an asset of the unliquidated community.

Secondly, appellant contends the trial court was in error in refusing to continue the concursus to permit an orderly liquidation of the affairs of the former community. Appellant also contends that after refusing his request for a continuance, the trial court erred in denying him the right to introduce evidence to show he paid community debts from his separate funds for which he should be reimbursed from the fund on deposit.

Although not shown by the record, it is apparent from briefs of counsel that the trial judge refused to allow appellant to introduce any evidence because he had not filed an answer asserting a claim to the deposited fund under La.C.C.P. Arts. 4655 and 4656.

The judgment in question was taken by confirmation of default entered on behalf of appellee. This is not in accord with the concursus statute. C.C.P. Art. 4657 provides in pertinent part:

If a defendant fails to answer within the delay allowed by law, any party may move for an ex parte order of court limiting the time in which an answer may be filed in the proceeding. In such event, the court shall order all defendants who have not answered to file their answers within a further delay to be assigned by the court, not exceeding ten days from the service or publication of the order.
# # # # # #
The failure of a defendant to file an answer within the delay as extended by the court precludes him thereafter from filing an answer, or from asserting his claim against the plaintiff.

From a literal reading of the above article, appellant’s right to answer and to submit evidence in support of his claim had not been terminated by proper notice pursuant to motion made by appellee prior to rendition of judgment.

In addition, the distribution ordered by the trial court is tantamount to a partial judicial partition of the community. Such a result is not favored in law. Daigre v. Daigre, 280 La. 472, 89 So.2d 41 (1956); Tomme v. Tomme, 174 La. 123, 189 So. 901 (1982).

Because of the present posture of this litigation, we conclude it would be in the best interest of doing justice to vacate the judgment and remand the case to the district court to allow a total liquidation of the affairs of the former community in an appropriate proceeding.

The judgment is accordingly vacated and the case is remanded for further proceedings in accord with law and consistent with the views expressed in this opinion. Costs of this appeal are to be assessed equally to appellant and appellee.


author: SAMUEL, Judge.

text:
    AETNA INSURANCE COMPANY v. Enoch R. "Ray” EMMONS, Individually, and Ray Emmons Construction Company.
    No. 8519.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.

      Schafer & Schafer, Timothy G. Schafer, New Orleans, for Aetna Ins. Co., plaintiff-appellant.
    Sanders & Perlis, Kenneth L. Sanders, Metairie, for Enoch R. “Ray” Emmons and Ray Emmons Const. Co., defendants-third party plaintiffs-appellants.
    George J. Richaud, Metairie, for Liberty Mut. Ins. Co., third party defendant-appel-lee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit as subrogee of Moody Day, Inc., its insured, against Enoch R. Ray Emmons and Ray Emmons Construction Company to recover for the loss of a portable air compressor leased by those defendants from plaintiff’s insured and stolen while in defendants’ possession. Plaintiff seeks $8,210, the amount it paid its insured under the- policy, and bases the suit on defendants’ alleged negligence which resulted in the theft of the air compressor and breach of the lease agreement “to keep safely and return said equipment.”

Defendants answered, denying liability, and filed a third party demand against Liberty Mutual Insurance Company, the insurer of the construction company, seeking indemnity under a policy allegedly covering the loss described in plaintiff’s suit. Liberty Mutual answered the third party demand, denying liability, and moved for summary judgment based on lack of coverage of the air compressor.

The trial court granted Liberty Mutual’s motion for summary judgment and dismissed defendants’ third party demand against it. Defendants-third party plaintiffs and the original plaintiff have taken this appeal from that judgment.

Third party plaintiffs’ demand originally was based on a comprehensive general liability policy and on a scheduled property floater policy, but in this court they limit their appeal to coverage under the scheduled property floater policy.

It is undisputed that on the day of the loss, April 16, 1975, a scheduled property floater policy issued by Liberty Mutual to Ray Emmons Construction Co., Inc. was in force and contained a Hired Equipment Endorsement. Liberty Mutual likewise concedes the endorsement provides coverage for the type of loss described in plaintiff’s suit. The relevant portion of the scheduled property floater policy provides:

“In consideration of the stipulations herein named and of the premium above specified, the company does insure the insured named above, whose address is stated above, from the inception date shown above at noon (standard time) to expiration date shown above at noon (standard time) at place of issuance, to an amount not exceeding the amount(s) above specified, on property described herein or in schedule attached.”

The Hired Equipment Endorsement provides:

“This policy is extended to cover, subject to its terms, conditions and exclusions, similar contractors’ equipment, the property of others, leased or hired by the insured, not to exceed $25,000. on any one piece of equipment. In consideration of the above, the insured agrees to keep an accurate record of the total annual ‘Cost of Hire’ of such equipment and pay premium annually, within thirty days after each anniversary date hereafter, at the rate of $3.00 per $100 of ‘Cost of Hire’. The disaster Limit of $130,524. remains unchanged.
All other terms and conditions of. the policy remain unchanged.”

The stolen air compressor was not described in the policy or in a schedule attached thereto and it should be noted the face of the policy provides the property insured is “Contractor’s Equipment”.

Liberty Mutual contends the endorsement is subject to all “terms, conditions, and exclusions” of the main policy, thereby excluding from coverage all leased or hired contractor’s equipment which is not separately and specifically described in the policy or in a schedule attached to the policy as stated in the provision first above quoted. Appellants contend the Hired Equipment Endorsement covers all leased equipment similar to that insured by the main policy without the necessity of describing or scheduling such property in the policy. We are of the opinion the position of appellants is the correct one.

The policy itself covers only contractor’s equipment described therein or in an attached schedule. Ownership of the described equipment by the insured is not made a condition of coverage. The endorsement provides the policy is extended to cover “similar contractors’ equipment” owned by others and rented and leased by the named insured. The endorsement further requires the insured to record the cost of renting the equipment and to pay an annual premium equivalent to 3% of such rental payments.

The endorsement does not specifically require rented equipment be listed or scheduled. If it must be scheduled to be insured, it would appear that the endorsement is unnecessary because the main policy only requires scheduling for coverage to take effect and is silent as to ownership. In the absence of a contractual provision clearly placing risk of loss solely on the owner-lessor, it seems clear the lessee-user of this type equipment has an insurable interest therein because of the numerous hazards to which it is exposed in the normal course of its possession and use.

Likewise the wording of the endorsement itself suggests scheduling is not a requirement of coverage. Coverage is extended to “similar contractors’ equipment”, but there is no limitation placed on this open-ended language. The endorsement’s coverage provision is highly suggestive, if not actually definitive, of coverage, similar to nonscheduled personal property coverage afforded by various other type policies. Third party defendant must have been aware that the equipment requirements of a contractor vary periodically, and the length of such periods vary with the nature of the work undertaken. It is reasonable to conclude an insurer would not require the inconvenient and uneconomical scheduling and unsche-duling of numerous moderately priced pieces of equipment on a daily or weekly basis, but instead would agree to insure all such property as and when rented and used.

This conclusion is reinforced by the requirement the insured “keep an accurate record” of the total annual rentals paid and remit premiums equivalent to 3% of this rental cost within 30 days of the policy’s anniversary date. If scheduling were required, the insurer would know in advance the value of the rented equipment and could charge advance premiums for coverage of known risks. The procedure of retrospectively basing premiums upon a percentage of the prior year’s rental payment is analogous to premium pricing of a workmen’s compensation policy where neither insured nor insurer has advance knowledge of total employees (i. e., the total risk) and premiums are determined or adjusted on the basis of the insured’s payroll for the previous year.

If the insurer in this case intended to require scheduling of rented equipment as a condition of coverage, it should have specifically so stated because limitations on coverage provided in an insurance policy must be clear and express in order to inform the insured he must take special measures to obtain protection. And if ambiguity is created by the words of this endorsement making it subject to the “terms, conditions and exclusions” of the main policy, thus requiring scheduling of property for coverage, the ambiguity was created by the insurer and must be construed against it.

We therefore conclude the loss for which the original plaintiff sued was covered under the policy issued by Liberty Mutual to the third party plaintiffs. Accordingly, Liberty Mutual is obliged to indemnify third party plaintiffs in the event of the success of the original plaintiff’s suit.

For the reasons assigned, the summary judgment appealed from is annulled and set aside, the motion for summary judgment is denied, and the case is remanded to the trial court for further proceedings in accordance with law and with the views expressed herein. All costs of this appeal are to be paid by Liberty Mutual Insurance Company. All other costs are to await a final disposition.

REVERSED AND REMANDED.

      . Cotlar v. Gulf Insurance Company, La.App., 318 So.2d 923.

      . Cooling v. United States Fidelity and Guaranty Co., La.App., 269 So.2d 294; Corkem v. Main Insurance Company, Chicago, III, La. App., 268 So.2d 138; St. Paul Fire & Marine Ins. Co. v. Roubion, La.App., 252 So.2d 679.