author: SCHEB, Judge.

text:
    Joan Anita MAYO, Appellant, v. Charles L. MAYO, Appellee.
    No. 76-1411.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.
    Rehearing Denied May 12, 1977.

      R. Patrick Phillips, of Baldwin & Dikeou, Fern Park, for appellant.
    James L. Sayer, Fort Myers, for appellee Stephen Lee Mayo, a minor, as his Guardian Ad Litem.
    James R. Jessell, Fort Myers, for appellee Marion E. Mayo, as Personal Representative of the Estate of Charles Lee Mayo, Deceased.
   SCHEB, Judge.

The issue on this appeal is whether the petitioner in a dissolution of marriage proceeding made the’requisite diligent search and inquiry necessary as a predicate for constructive service of process.

Appellant Joan Anita Mayo married Charlie L. Mayo on July 17, 1967. They separated at Ft. Myers, Florida, during March 1975. The husband sought to dissolve the marriage on June 13, 1975, by petition in the Circuit Court of Lee County. He filed an affidavit for constructive service of process in which he stated:

“1. The Affiant has made diligent search and inquiry to discover the name and residence of the Respondent, JOAN ANITA MAYO, and the same is set forth in this sworn statement as particularly as is known to the Affiant.
2. . . .
3. The residence of the Respondent as last known to the Petitioner was 400 Smith Street, Vidalia, Georgia 30474.”

No response was made by the wife. Default was taken against the wife for her failure to appear. The case was referred to a special examiner. In a very brief hearing the husband was questioned as to his wife’s last known and present address; however, neither his counsel nor the examiner questioned him as to whether he had made a diligent search and inquiry to determine the residence of his wife. A final judgment of dissolution was entered on August 22, 1975. The husband died on November 5, 1975.

On January 15, 1976, the wife moved to set aside the final judgment of dissolution under the provisions of Fla.R.Civ.P. 1.540. She alleged the husband had actual knowledge that, at the time he made his affidavit, she was living with friends in Orlando, Florida. In a proceeding defended by the deceased husband’s estate and a guardian ad litem for his minor son by a previous marriage, the trial court denied the wife’s motion for relief. We reverse.

Constructive service, often referred to as service by publication, is available to the petitioner in a dissolution of marriage proceeding. Section 49.011(4), Florida Statutes. A condition precedent to service by publication, however, is a sworn statement to be filed in the action by the petitioner, his agent or attorney. Section 49.031(1), Florida Statutes.

Where, as here, a natural person is the defendant to be served by publication, the requirements for the sworn statement are governed by Section 49.041, Florida Statutes, which provides:

Sworn statement, natural person as defendant. — The sworn statement of the plaintiff, his agent’ or attorney, for service of process by publication against a natural person, shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant; and
(2) Whether such person is over or under the age of 21 [now 18] years, if his age is known, or that his age is unknown; and
(3) In addition to the above, that the residence of such person is either:
(a) Unknown to the affiant; or
(b) In some state of country other than this state, stating said residence if known; or
(c) In the state, but that he has been absent from the state for more than 60 days next preceding the making of the sworn statement, or conceals himself so that process cannot be personally served upon him, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant.

It is a fundamental principle of law that the constructive service statute is strictly construed against a plaintiff who seeks to obtain service of process under it. Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976). Even so, to set aside a judgment of dissolution where the original petitioner is deceased, there must be clear and convincing evidence that the petitioner failed to make the required diligent search and inquiry essential to the validity of constructive service. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820 (1926); Gravel v. Bailey, 187 So.2d 667 (Fla. 3d DCA 1966).

From the testimony at the Rule 1.540 hearing, it is undisputed that the wife lived with her husband in Ft. Myers, Florida, from January 20, 1975, until their separation sometime in March of that year. Prior to this time the wife had lived in Vidalia, Georgia. In March of 1975, the wife, accompanied by her son by previous marriage, Jimmy Kearce, moved to Orlando, Florida. Jimmy was enrolled in junior high school in the Orlando area until the school year ended on June 5, 1975. While Jimmy was in school the husband visited the wife at her Orlando residence, where she lived with Mr. & Mrs. W. L. Hall, friends of both the husband and wife. Moreover, uncontro-verted evidence disclosed several telephone conversations between the husband and wife during that period of time. Further, no one disputed the testimony by Mr. Hall that a few days after school was out, he transported Jimmy from Orlando to Ft. Myers to see the husband, who was Jimmy’s stepfather. Jimmy remained there for approximately two months. Additionally, Mr. Hall testified that he was a good friend of the husband’s, and that after the wife came to live at the Hall residence he would visit the husband and discuss with him how Mrs. Mayo was getting along. Mrs. Hall’s testimony corroborated this.

The wife testified she had telephone calls from her husband while she lived at the Halls’ residence in Orlando; that she temporarily left the Halls’ on June 7 to go haul fruit in the southwest Florida area. She stated that several weeks later she returned to live in Orlando, although not at the Halls’. There was conflicting testimony as to whether the wife ever called Mr. or Mrs. Hall to tell them how to get in touch with her. The wife claimed her first knowledge of the divorce was after the demise of her husband when she was informed of “legal papers” being found among his effects. In sum, there was evidence that neither the Halls nor the husband knew the precise whereabouts of the wife at the time the husband signed the affidavit for constructive service on June 13. Hence, viewing the evidence in the light most favorable to the now-deceased husband, there was a basis for the trial judge to have found that at that time the husband did not know the exact whereabouts of his wife. But, the gravamen of this appeal is not whether the husband knew her precise whereabouts at the time he signed the affidavit, but whether he made a diligent search and inquiry to ascertain her then residence. Since he knew his wife had recently resided with Mr. & Mrs. Hall in Orlando, it was incumbent upon him to exert an honest and conscientious effort appropriate to the circumstances to acquire the information necessary to effectuate service of process upon his wife. The record is silent as to any inquiry by the husband of either Mr. or Mrs. Hall with whom he had been in contact. Moreover, there was no showing the husband ever inquired of his stepson concerning the wife’s whereabouts, notwithstanding that Jimmy lived with him during June and July of 1975. And surely, when his stepson was returned to his mother on July 28 at her request, the husband must have been aware that he could have learned of his wife’s whereabouts if, in fact, those whereabouts were not obvious to him by that time.

As was stated in Gmaz v. King, 238 So.2d 511, 514 (Fla. 2d DCA 1970), the test of whether the party who seeks to employ constructive service has made the requisite diligent search and inquiry to whether “the complainant reasonably employed knowledge at his command in making the appropriate effort” to acquire the information necessary to comply with the statute. It is basic that to constitute diligent search and inquiry to discover the whereabouts of a party, that inquiry should be made of persons likely or presumed to know such whereabouts. The evidence before the trial court does not reveal any such inquiry on the husband’s part, even though the record affirmatively establishes sources of information readily available to him. The evidence before the trial court is devoid of any showing that the deceased husband made even the most rudimentary efforts to discover his wife’s whereabouts at the time he signed the affidavit for constructive service or at any time subsequent thereto.

Accordingly, the judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

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

      . A legion of Florida cases are instructive on the proposition that one who relies on service by publication should demonstrate that he has made diligent inquiry, and executed an honest and conscientious effort appropriate to the circumstances to acquire the information necessary to enable him to effect personal service on the defendant. See Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976), and the cases cited therein. Our review of the testimony in the dissolution proceeding reveals that no serious attempt was made by counsel or the special examiner to determine the bona fides of the husband in any attempts to make diligent search and inquiry required to validly obtain constructive service in this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jesus PROENZA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-287.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order revoking probation. We hold that the evidence is sufficient under the rule stated in Russ v. State, 313 So.2d 758 (Fla.1975); and Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975).

Affirmed.


text:
    Nydia CABANAS, Appellant, v. Patrick ROMANO and Chrysler Leasing Corporation, Appellees.
    No. 76-683.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.

      Horton, Perse & Ginsberg and William F. Sullivan IV, Miami, for appellant.
    Richard M. Gale and Robert L. Dube’, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Shaw v. Puelo, 159 So.2d 641 (Fla.1964); White v. Bacon, 166 So.2d 678 (Fla. 1st DCA 1964); Haddock v. Robinson, 289 So .2d 449 (Fla. 1st DCA 1974).


author: HENDRY, Chief Judge.

text:
    Bruce C. WEATHERFORD and Judith Weatherford, Appellants, v. RYDER TRUCK RENTAL AND LEASING, INC., a Florida Corporation, et al., Appellees.
    No. 76-744.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Joe N. Unger, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Paul A. Carlson, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

This is an appeal from a summary judgment entered against appellants, plaintiffs below.

Appellants filed suit seeking damages for injuries sustained by appellant-Bruce Weatherford, while serving as a police officer for the City of Hialeah. The injuries occurred when appellant was struck by a vehicle while directing traffic around a tractor trailer which allegedly was illegally parked. The tractor trailer was owned by Ryder Truck Rental and Leasing, Inc., leased by Quality Wood Company and driven by Angelberto DeCoro, all appellees.

The trial judge granted summary final judgment in favor of appellees based upon a general release, executed by appellants soon after the accident for the sum of $10,-000.00, discharging Alice Hart, the driver of the vehicle, State Farm Mutual Automobile Insurance Company, her insurer, “and all other persons, firms or corporations liable or who might be claimed to be liable . from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future result from any claim which occurred on or about the 15th day of February, 1974, at or near West 20th Avenue and 54th Street, Hialeah, Florida.”

The trial judge was of the opinion that the case of Morison v. General Motors Corporation, 428 F.2d 952 (5th Cir. 1970), cert. denied, 400 U.S. 904, 91 S.Ct. 142, 27 L.Ed.2d 141 (1970), controlled and granted summary final judgment. We agree.

In Morison, a general release, similar in form to the one sub judice, was executed by the plaintiff in favor of one defendant and her insurer. The court held that said general release was effective as against the other defendants, notwithstanding the failure of the release to specifically name the other defendants or the failure of the other defendants to pay any consideration for the release.

Based upon the above authority and after reviewing the record, briefs and arguments of counsel we are of the view that entrance of summary final judgment was correct and therefore, said judgment is hereby affirmed.

Affirmed.


author: NATHAN, Judge.

text:
    Daniel LEVINE and Richard Schaffer, Appellants, v. I.R.E. PROPERTIES, INC., a Florida Corporation, et al., Appellees.
    No. 76-765.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.

      Cassel & Benjamin, Miami, for appellants.
    Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an appeal by the plaintiffs, Daniel Levine and Richard Schaffer, from a summary final judgment in favor of the defendants, I.R.E. Properties, Inc., Alan B. Levan and Theodore Newman, in an action to void the sale of an apartment complex pursuant to the sale of securities law, Chapter 517, Florida Statutes, and for rescission and damages.

The record reflects that on June 17, 1973, Levine and Schaffer purchased from I.R.E. Properties, Inc., an apartment complex located in Texas. The purchase agreement provided that the purchasers and sellers would enter into a management contract whereby I.R.E. Properties would manage the property. By the terms of the management contract, I.R.E. became the plaintiff-purchasers’ agent for the operation of the building. The agreement also provided that it could be cancelled by either party upon thirty days prior written notice.

The apartment project began losing money. Levine and Schaffer demanded that I.R.E. take back the property and return all monies invested, claiming that I.R.E.’s agents had assured them prior to the sale, a 17 per cent return on their investment. Levine and Schaffer then filed a three count complaint alleging (1) that the sale constituted the sale of a security in violation of Chapter 517, Florida Statutes, entitling them to void the sale; (2) that I.R.E. and its agents misrepresented the income to be made on the project, entitling them to recission; and (3) entitlement to damages and other relief based on the misrepresentations. The plaintiffs amended Count I, and added allegations that I.R.E. and its agents represented that the project would return 17 per cent; that the project would be fully managed by I.R.E. Properties through a collateral corporation, I.R.E. Investments; and that Levine and Schaffer were assured that neither of them would have to be concerned with managing the property.

Both sides moved for summary judgment. The trial court granted the defendants’ motion for summary judgment, finding as a matter of fact and law that the purchase agreement and management agreement did not constitute a security as defined in Chapter 517, supra. The court further found that I.R.E. Properties was the agent for Levine and Schaffer; that there was a fiduciary relationship between the parties; that I.R.E. acted on behalf of and subject to the purchasers’ control and consent; and that no common enterprise existed, thus, the purchasers were not expecting profits from the efforts of others. The court concluded that the transaction failed in two material respects to come within the definition of a security as a matter of law. Summary judgment was entered in favor of the defendants on all three counts.

At the outset, we note that Counts II and III of the plaintiffs’ complaint were strictly causes of action for rescission and damages based upon misrepresentation and were separate and apart from the cause of action under Chapter 517 in Count I. In our opinion, the pleadings, documents and affidavits contained in the record in this case raise genuine issues of material fact on Counts II and III, and the summary judgment entered as to those counts was improper.

The remaining question, then, is whether the trial court erred in finding as a matter of law and fact that the sale did not constitute the sale of a security in violation of Chapter 517, and in entering summary judgment on Count I.

A security is defined as a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party. Securities and Exchange Commission v. W. J. Howey Company, 328 U.S. 293, 298, 66 S.Ct. 1100, 90 L.Ed. 1244; Sunshine Kitchens v. Alanthus Corporation, 403 F.Supp. 719 (S.D.Fla.1975). In determining the meaning and scope of the term “security,” form should be disregarded for substance, and the focus should be on economic reality. Sunshine Kitchens v. Alanthus Corporation, supra. Whether a particular investment constitutes a security depends upon the facts and circumstances of each individual case. Securities and Exchange Commission v. Joiner, 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88; Securities and Exchange Commission v. W. J. Howey Company, supra.

The record discloses that the entry of summary judgment was based solely on the documents before the court. In our opinion, the fact that the management contract is cancellable on thirty days notice is not conclusive of whether the transaction constitutes a security. Compare Fargo Partners v. Dain Corporation, 540 F.2d 912 (8th Cir. 1976). In the instant case, there are other genuine issues of fact which are material to a determination of whether it is a security. We find that it will be necessary to consider evidence and proof beyond the documents presented on motion for summary judgment in order to negative the existence of any material issues of fact.

Therefore, we hold that the trial court erred in entering summary judgment in favor of the defendants on the first count, sounding in violation of the sale of securities law.

The summary judgment is reversed as to all three counts, and the cause is remanded to the trial court for further proceedings.


text:
    Joseph SERPICO and Virginia Serpico, Appellants, v. Del FORN, Appellee.
    No. 76-783.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Bloom & Kipnis, Miami, for appellants.
    Joseph Teichman, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Grimsley v. Florida Universal Financial Corporation, 339 So.2d 721 (Fla. 1st DCA 1976), and Perry v. University Cabs, Inc., 344 So.2d 914 (Fla. 3d DCA 1977).


author: PEARSON, Judge.

text:
    Jeanette KUHLMAN and Kenneth Kuhlman, Appellants, v. TRAVELERS INDEMNITY COMPANY, a Connecticut Corporation, and Linda Rish, Appellees.
    No. 76-823.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Kuvin, Klingensmith & Lewis, Miami, for appellants.
    G. W. O’Grady, Gene Flinn, Miami, for appellees.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

This appeal is by the plaintiffs from an order dismissing their cause when their attorney failed to be present at the time of the call of the trial calendar, and from a subsequent order denying plaintiffs’ motion to reinstate the cause. We hold that the trial court abused its discretion in failing to reinstate the cause when it was established without controversy that the attorney’s failure to respond to the call was through misunderstanding and inadvertence rather than neglect or failure to prosecute the case. The pretrial activity proceeded normally with the trial court setting the case for jury trial for the two week period commencing April 5, 1976, and directing the attorneys to appear ready for trial at the call of the trial calendar on April 5, 1976, at 9:30 a. m. The parties, thereafter, filed their normal pretrial catalogues.

On Monday, April 5, 1976, at 9:30 a. m., trial counsel for the Kuhlmans appeared for the calendar call; however, the case was not then assigned a time or date for trial. At the end of the calendar call on April 5th, trial counsel did not understand the court to say that court would begin at a different time the next day, that is, at 9:00 a. m., instead of 9:30 a. m. Counsel’s affidavit stated that he was informed by the clerk of the court that he should be present at the same time the following day, that is, at 9:30 a. m. On the following day, Tuesday, April 6th, an attorney from the office of trial counsel reported for the calendar call at 9:30 a. m., and was advised that the calendar call had commenced at 9:00 a. m. and that the present case had been dismissed. On the same day, the trial court signed the order of dismissal.

The order of dismissal stated that the case had been noticed for trial and that the plaintiffs failed to appear to prosecute, therefore, the cause was dismissed. The order of dismissal did not specify whether the same was “with prejudice” or “without prejudice.”

Although the order of dismissal did not specify that it was with prejudice, it would be so interpreted because of Fla.R. Civ.P. 1.420(b). It is clear that the dismissal should have been without prejudice in any event inasmuch as it was not dismissed upon the merits. See Masser v. London Operating Co., 106 Fla. 474, 145 So. 72 (1932); see also Rashard v. Cappiali, 171 So.2d 581 (Fla.3d DCA 1965).

The Kuhlmans immediately filed their Motion to Vacate and Set Aside the Dismissal on April 7, 1976, as well as an unre-futed affidavit of trial counsel. The motion and affidavit clearly demonstrated to the trial court that a misunderstanding concerning the time to report for the calendar call was the only reason that counsel for the Kuhlmans was present on Tuesday, April 6, 1976, at 9:30 a. m., instead of 9:00 a. m. Counsel for the Kuhlmans offered and requested that the case be permitted to proceed to trial immediately during the scheduled two week period. The Kuhlmans’ Motion to Vacate and Set Aside Dismissal was denied.

Under circumstances where a misunderstanding of counsel rather than neglect on his part caused the dismissal of the cause, the client should not suffer the consequences and, therefore, the trial court abused its discretion in failing to reinstate the cause. See Beasley v. Girten, 61 So.2d 179 (Fla.1952); Goldman v. Tabor, 239 So.2d 529 (Fla.2d DCA 1970); Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla.4th DCA 1971); and cf. Moss v. State Farm Mutual Automobile Ins. Co., 328 So.2d 495 (Fla.4th DCA 1976).

Accordingly, we reverse the order denying plaintiff’s Motion to Vacate and Set Aside the Dismissal, and remand the cause with directions to vacate the order of dismissal and to place the cause on the next available trial calendar.

Reversed and remanded with directions.


text:
    The ZACK COMPANY, a Florida Corporation, Appellant, v. CUTCHENS CONSTRUCTION, INC., a Florida Corporation, Appellee.
    No. 76-881.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.

      Friedman & Britton and Robert A. Schatzman, Miami, for appellant.
    A. Jay Cristol and Steven Mishan, High, Stack, Davis & Lazenby and Alan R. Dak-an, Miami, for appellee.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was found guilty, in a non jury trial, of negligently constructing a roof, under a subcontract with the appellee resulting in damages to appellee.

Appellant seeks reversal of the judgment and amended judgment on the ground that the relevant competent evidence adduced was insufficient to support a judgment for damages in favor of the appellee.

We have carefully considered the point on appeal in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated.

A judgment of the trial court reaches the appellate court clothed with a presumption of correctness. The record reveals that although the testimony is conflicting, there is substantial competent evidence to support the trial court’s findings and judgment. It is not this court’s province to substitute its judgment for that of the trier of facts. Accordingly, the judgments appealed are affirmed,

Affirmed,


text:
    The STATE of Florida, Appellant, v. Carlos GUTIERREZ et al., Appellees.
    No. 76-1076.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz and Arthur Joel Berger, Asst. Attys. Gen., for appellant.
    W. Stephen Arnovitz and Jerold H. Reichler, Miami Beach, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Ostergard, 343 So.2d 874 (Fla. 3rd D.C.A. 1977).


text:
    Walter Richard AMELL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1294.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Carling H. Stedman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Appellant is appealing from the trial court’s order denying him relief pursuant to Fla.R.Crim.P. 3.850.

Appellant was convicted of two counts of robbery. His conviction was appealed and affirmed. Amell v. State, 319 So.2d 621 (Fla. 3d DCA 1975). A motion for relief pursuant to Fla.R.Crim.P. 3.850 was filed in the trial court and denied.

Appellant contends in this appeal that the trial court erred in denying the motion for such relief. We find the contention to be without merit.

We have carefully examined the record on appeal and considered the briefs, and have concluded that appellant has not presented any grounds which would entitle him to the relief sought. Suarez v. State, 220 So.2d 442 (Fla. 3d DCA 1969); Peterson v. State, 237 So.2d 223 (Fla. 1st DCA 1970); Clements v. State, 320 So.2d 44 (Fla. 3d DCA 1975).

Therefore, the order appealed is affirmed.

Affirmed.


text:
    Edward N. CLAUGHTON, Jr., Appellant, v. Beverly A. CLAUGHTON, Appellee.
    No. 76-1724.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.

      Sibley, Giblin, Levenson & Ward, Miami, for appellant.
    Paige & Catlin, Miami, for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This interlocutory appeal is taken from • an order dated August 9, 1976, in a dissolution of marriage action, wherein the chancellor ordered both appellant and appellee to answer certain questions relating to their alleged adulterous conduct.

Appellee petitioned the court for dissolution of her marriage to appellant, who filed his response thereto. The petition, besides seeking dissolution, also sought both temporary and permanent alimony, attorney’s fees and court costs, a determination of the property rights of the parties and custody of the couple’s minor children.

By agreement of the parties, the issues were bifurcated and on January 21, 1976, the court took testimony and determined that the marriage was irretrievably broken and entered its order dissolving same. On April 9, 1976, appellant served interrogatories upon his former wife, concerning her alleged illicit sexual activities both before and after the dissolution of their marriage. Appellee objected to this area of inquiry and refused to answer.

Subsequent to the serving of the above interrogatories, on May 21, 1976, appellee commenced the taking of her former husband’s deposition. Appellee inquired as to appellant’s alleged extra-marital sexual relations at points in time both during the marriage and subsequent thereto. Appellant, likewise, refused to answer the questions.

The chancellor thereupon entered an order requiring both parties to answer the questions concerning their sexual activities both during and after the marriage. From that order, appellant has taken this interlocutory appeal and has filed his assignments of error. Appellee has filed cross-assignments of error directed to that same order.

Appellant contends that the chancellor erred in ordering him to answer questions concerning his alleged adulterous activities as he is not the spouse who is seeking alimony, pursuant to Section 61.08(1), Florida Statutes (1975).

Appellee’s principle contentions are that, notwithstanding the above, Section 61.08(2), Florida Statutes (1975) permits a chancellor to consider any factor necessary to do equity and justice between the parties in determining a proper award of alimony and, where custody and visitation are at issue, an inquiry into the moral fitness of the parents, pursuant to Section 61.13(3)(f), Florida Statutes (1975), must necessarily include an examination into their lifestyles, i. e. any adulterous, promiscuous conduct of either party.

Initially, we note that appellant’s contention is based solely upon our holding in Escobar v. Escobar, 300 So.2d 702 (Fla. 3d DCA 1974). Appellant reads Escobar as authority for the proposition that the alleged adulterous activities of a spouse not seeking alimony cannot be introduced in a hearing to determine the alimony, custody and visitation rights of the parties.

We are of the view that any such broad interpretation of Escobar is unfounded.

By its facts, Escobar merely stands for the proposition that a chancellor need not hear testimony concerning the adulterous activities of a spouse not seeking alimony, when the purpose of said testimony is solely to obtain alimony for the spouse introducing the testimony or to increase the award of any alimony, as the basis of alimony is the “wife’s demonstrated need and the husband’s ability to pay . . .” supra at 703. We realize that our holding in Escobar has previously been misunderstood by both our sister court and the practicing bar and we welcome the opportunity to clarify our position.

Initially, we turn to the provisions of Section 61.08, Florida Statutes (1975), which provides that:

“(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded to such spouse.
“(2) In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.”

Subsection one of the above section, as construed correctly in Escobar, permits a chancellor to consider the adulterous activities of a spouse seeking alimony, “as a mitigating defense to the awarding of alimony and the amount thereof.” Escobar, supra, quoting from Stafford v. Stafford, 294 So.2d 25 (Fla. 3d DCA 1974). Subsection two of Section 61.08, which permits a chancellor to “consider any factor necessary to do equity and justice between the parties” was never utilized in Escobar, as the facts there, as heretofore mentioned, revealed that the alimony seeking wife sought to utilize testimony of the alleged adultery of her husband solely to obtain an award of alimony.

The alleged facts, sub judice, seemingly reveal a course of adulterous conduct on the part of appellant throughout most of the parties’ more than twenty-year marriage. Appellee, on the other hand, has allegedly had only a single extra-marital affair and then, only after it had become evident, toward the final years of their marriage, that the union had become irretrievably broken. We believe this particular situation cries out for an application of Section 61.08(2), as it would be a manifest injustice to permit appellant to utilize Section 61.08(1), as a defense to the payment of alimony based upon appellee’s alleged single affair, while appellant’s alleged, activities went unnoticed.

It is important to note that our holding here in no way conflicts with our opinion in Escobar, as sub judice, appellee’s utilization of the alleged adulterous activities of appellant will be limited to the mitigation and defense of her own conduct and not as a means of increasing her own award, which should be based primarily upon her needs and appellant’s ability to pay. Escobar, supra. By so ruling, we enable the chancellor to more appropriately. award alimony based upon the “equity and justice” called for by Section 61.08(2) and more closely align ourselves with our sister courts. See Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974) and McClelland v. McClelland, 318 So.2d 160 (Fla. 1st DCA 1975).

In addition, as concerns the areas of custody and visitation, we feel that pursuant to Section 61.13(3)(f), Florida Statutes (1975), any inquiry into the lifestyle and moral fitness of each parent must in some ways include an investigation into any alleged adulterous behavior of the parties. It goes without saying, of course, that any award of custody and/or visitation is to be determined in accordance with the best interests of the children and adultery, in and of itself, is no bar to an award of custody and/or visitation. McAnespie v. McAnespie, 200 So.2d 606 (Fla. 2d DCA 1967); 10A Fla.Jur., Dissolution of Marriage, § 92 (1973).

In no way should our decision today be read as lending support to any unbridled discovery into the sullied areas of adulterous activities. It is our hope that the learned chancellor would caution against “ ‘an unlimited foray into the details’ of the alleged adultery” and “restrict the inquiry ‘within reasonable bounds’ ”. McClelland v. McClelland, supra, at 162, 3. It is enough that the chancellor “ ‘simply get a broad picture and understanding of the relative equities and factors necessary to do justice.’” McClelland, supra, quoting from Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973). Our primary concern is of course the effect a detailed probe into the private lives of the parties might have on the innocent children involved, not to mention the disruptive effect such an inquiry might have upon the married lives of third persons involved in the illicit conduct and their children. We would only hope then, that the chancellor would make the necessary safeguards to protect the above mentioned individuals from any unnecessary embarrassment, ridicule or scorn.

In conclusion, as concerns an award of alimony, we hold that where the facts of a case dictate that justice and equity will best be served by an inquiry into the adulterous activities of a spouse, pursuant to Section 61.08(1) and (2), such inquiry is permissible, so long as the inquiry is not to be utilized for the sole purpose of increasing an award and is handled in a mature, discrete and unvindictive manner. As far as child custody and reasonable visitation is concerned, testimony concerning the moral fitness of both spouses is permissible, so long as such testimony is directed to a broad overview of the lifestyle of each parent.

Other issues raised by the parties are without merit and need not be discussed.

The order appealed is therefore affirmed, as it permits each party to inquire into alleged adulterous activities of the other party, but modified, to the extent that the order reflect our concern over any unnecessary query into the sordid details of any such activities.

Affirmed in part; modified in part.

      . McClelland v. McClelland, 318 So.2d 160 (Fla. 1st DCA 1975).


text:
    James L. WALL, Sr., Petitioner, v. BRUCKNER, GREENE & MANAS, P.A., a Florida Professional Association, et al., Respondents.
    No. 76-1969.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.

      Tobias Simon and Elizabeth duFresne, Miami, for petitioner.
    Mark Casper, Miami, for respondents.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

This was filed as an interlocutory appeal from an order of the trial court dismissing defendant’s counterclaim and cross-claim and striking paragraph 12 of defendant’s affirmative defenses. We have considered the matter as a petition for writ of certiora-ri.

The defendant maintains here that the law of Florida has been changed by the holding of the Florida Supreme Court in The Florida Bar v. Moriber, 314 So.2d 145 (Fla.1975). He urges that an attorney may not sue a former client for a fee that the client claims to be excessive until the propriety of the fee has been determined by The Florida Bar in disciplinary proceedings. We hold that disciplinary proceedings do not afford redress for a private grievance and are separate and distinct from the legal right of an attorney to proceed in the civil courts for the collection of a debt owing to him. See The Florida Bar v. Winn, 208 So.2d 809 (Fla.1968).

This matter arises out of a suit in which the plaintiffs are a Florida professional association, the members of which are engaged in the practice of law. The complaint alleged the employment of the plaintiffs and their performance of certain legal services and claimed “[a] reasonable fee for Plaintiffs’ services,” although the complaint also alleged that a reasonable fee for such services would be the sum of $150,000. The defendant filed an answer to the complaint admitting the employment and the fact that he had denied liability for the balance of the fee claimed and denying all other allegations. Further, in response to the complaint, the defendant filed affirmative defenses in paragraphs 1 through 12 in which he alleged an agreement between the parties that the fee shojild not exceed $20,-000. The twelfth paragraph of the affirmative defenses was as follows:

“12. Such demanded amount as set forth in the attorney’s Complaint against his client is so clearly excessive and extortionate as to shock the conscience of the Court and constitutes a violation of the Code of Professional Responsibility by the Attorney/Plaintiff to this action.”

In addition, the counterclaim alleged that the attorneys are barred by the Code of Professional Responsibility from bringing suit against the client without alleging and proving that such suit is necessary to prevent fraud upon the attorneys by the client. In a separate paragraph of the counterclaim, the defendant claimed punitive damages.

The two points presented here are as follows:

“An attorney is prohibited by ethical considerations from suing for even a reasonable fee unless necessary to prevent fraud or gross imposition by the client. Civil courts should abstain from hearing and refer to The Florida Bar, as the only proper forum, a substantial claim that an attorney has charged fees that are ‘clearly excessive.’ ”

The first point does not present any showing of a departure from the essential requirements of law because it is not the function of a court of law in the dispute between this attorney and the defendant/former client to determine the ethical standing of the plaintiff/attorney. To hold, as the defendant urges, that the court must, in every case of a disputed fee, determine whether the suit was necessary under the ethical standards applicable to attorneys would be an imposition upon trial courts of a new and unnecessary task in the disposition of this type of litigation.

The second point also presents no showing of a departure from the essential requirements of law because the existence of a disciplinary remedy for claimed unethical conduct by an attorney does not oust the courts of jurisdiction to settle legal rights involved in a dispute between an attorney and his former client. The expeditious settlement of misunderstandings and controversies between attorneys and clients is for the benefit not only of the parties litigant but also of the general public as is the disposition of any business controversy. The fact that disciplinary proceedings are separate and apart from the legal right of an attorney and his client has been fully set forth by the Supreme Court of Florida in The Florida Bar v. Winn, 208 So.2d 809 (Fla.1968). We find nothing in the Supreme Court’s holding in the case of The Florida Bar v. Moriber, 314 So.2d 145 (Fla.1975) to change this holding.

Certiorari denied.


author: BOYER, Chief Judge.

text:
    L. E. WALLACE, Appellant, v. RALPH PILLOW MOTORS, INC., Appellee.
    No. BB-33.
    District Court of Appeal of Florida, First District.
    April 22, 1977.
    Rehearing Denied May 12, 1977.
    Thomas S. Recicar of Arnold, Matheny & Egan, Orlando, for appellant.
    Theodore F. Zentner of Clayton, Clayton & Zentner, DeLand, for appellee.
   BOYER, Chief Judge.

In its final judgment, the trial court determined that appellant was entitled to certain shares of Intervest Management Company common stock, but failed to award a judgment for the balance owed by appellee on its promissory note in favor of appellant. In so failing, he erred.

On May 21, 1971, the parties met at the offices of Intervest, Inc. in Orlando and signed an agreement by which appellant agreed to sell and appellee agreed to buy 32,500 shares of Intervest Management Company stock at a total price of $91,000, with $15,000 cash to be paid immediately and the balance of $76,000 to be paid in 40 equal monthly payments of $1,900 a month. Appellee executed a promissory note payable to appellant in that amount. The note was secured by the pledge of 27,120 shares of the stock which was to be delivered, along with the note, to the First National Bank of DeBary acting as escrow agent and collection agent for the parties. Upon debiting appellee’s account in an amount of $1,900 each month the bank was to relinquish a proportionate amount of stock to appellee. At the time the agreement was signed, the 32,500 shares of stock were transferred on the books of that company from appellant’s name to that of appellee. At the time the initial cash payment was made, appellant delivered 5,000 shares of the stock to appellee. The remaining 27,120 shares were “signed over” to appellee and appellee simultaneously executed stock powers to appellant.

With the exception of the Florida Bank at DeLand being substituted as the escrow and collection agent rather than the Bank at DeBary, the terms of the agreement were fully complied with until April of 1974 at which time the Florida Bank at DeLand was notified by appellee that no further payments would be made on the note. Appellant, on advice of counsel, elected to sue on the note and seek recovery of the balance, $9,500. However, the trial court found that appellant failed to establish his claim by the greater weight of the evidence.

At trial, appellee successfully contended that there was a failure of consideration for the promissory note by virtue of nondelivery of the stock. In Florida, consideration may be valuable or in the nature of a gratuity. 7 Fla.Jur., “Contracts”, § 36. Failure of consideration is the neglect, refusal, or failure of one of the parties to perform or furnish the consideration agreed upon. Holm v. Woodworth, 271 So.2d 167 (Fla. 4th DCA 1972). Want or failure of consideration is a defense under the Uniform Commercial Code. Section 673.408, Florida Statutes (1975).

Under the factual circumstances outlined above, there were more than sufficient acts and promises made by appellant at the time the note was executed to constitute consideration. The only evidence of failure of consideration contained in the record was the unilateral action on the part of appellee in refusing to make any further payments under the note. Appellant fully complied with the terms of the agreement entered into by the parties, and should not be penalized for appellee’s refusal to abide by the terms of that agreement.

Accordingly, the final judgment is reversed and remanded with directions that judgment be entered in favor of appellant in the amount of $9,500, the balance owed on the promissory note, plus such interest and costs as shall be in accordance with said note and law.

REVERSED.

RAWLS and McCORD, JJ., concur.


text:
    Grace DURLAND and Gene Durland, her husband, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. CC-317.
    District Court of Appeal of Florida, First District.
    April 22, 1977.
    J. Richard Boehm of Gosney, Cameron & Parsons, Daytona Beach, for appellants.
    Edwin C. Cluster and J. Chris Meffert of Ayres, Cluster, Curry, Meffert & McCall, P.A., Ocala, for appellee.
   PER CURIAM.

AFFIRMED. Ragle v. Firemen’s Fund Ins. Co., 336 So.2d 1197 (Fla. 1st DCA 1976); Lange v. State Farm Mut. Ins. Co., 300 So.2d 68 (Fla. 1st DCA 1974); Summers v. Jackson, 307 So.2d 235 (Fla. 4th DCA 1975); American Fire & Cas. Co. v. Dawson, 320 So.2d 38 (Fla. 2d DCA 1975).

RAWLS, Acting G. J., and McCORD and SMITH, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    Stephen H. GROFF and Gebena C. Groff, Appellants, v. Paula MOSES, formerly Paula Nichols, et al., Appellees.
    No. 76-1145.
    District Court of Appeal of Florida, Second District.
    April 22, 1977.
    Robert H. Carlton, Tampa, for appellants.
    Marvin Solomon, of Solomon & Kass, Tampa, for appellees Paula Moses, William L. Moses, Roger Marvin Nichols, Paul W. Harris and Myrtis S. Harris.
   BOARDMAN, Chief Judge.

Appellants/defendants appeal the final judgment entered in favor of appel-lees/plaintiffs in an action to enjoin interference with a 25-foot easement along the eastern and southern boundaries of appellants’ real property. Appellants filed an answer and cross-claim. Appellees answered and asserted affirmative defenses to the cross-claim. At the final hearing held February 4, 1974, the attorneys for the parties announced that a settlement had been reached which provided appellees a more direct route to their properties which were adjacent to that of appellants. The stipulation was not reduced to writing but was dictated into the record by the attorney representing appellants at that time.

No further legal action of record was taken until appellees filed a motion for modification of the stipulation on June 6, 1975. The court found that it lacked jurisdiction to modify in that only the parties to an agreement could modify, and it denied the motion. However, the court set a hearing for November 12 on appellants’ motion that the court enter an order approving the provisions of the February 4, 1974, stipulation. A final judgment was subsequently entered based on the stipulation. The stipulation provided in pertinent part that

the parties all agree that that easement of twenty-five feet . . . will be abandoned by all parties and interests, and in lieu thereof on the west boundary of the Groff’s property running in a southerly direction from Vandevort Road, there would be an uninterrupted fifteen foot easement. That there will be no gates in any way interfering with egress or ingress of that easement or anywhere along the fifteen feet, nor along the western boundary of that easement, so that Dr. Ortwein, Mr. Harris and Mrs. Moses will have unrestricted use of that easement.

The court ruled that an opening was to be made in the fence then standing on the western boundary of appellants’ property to provide access to the new easement for appellees. A new fence was to be constructed 15 feet to the east of the original fence. Appellants are particularly attacking that part of the final judgment which states that

[tjhere shall be no openings in said new fence at any point along the easement created by this Final Judgment. .

Appellants contend that the trial court erroneously concluded that the stipulation had the effect of prohibiting their right of access to the easement. We agree and reverse.

The burden on appellants’ property created by the easement which provides for a right of way through that property cannot be increased beyond that reasonably contemplated by the parties at the time of its creation. E. g., Crutchfield v. F. A. Sebring Realty Co., 69 So.2d 328 (Fla.1954). We are unable to find in this stipulation any explicit or implicit prohibition of access to the easement from the east boundary. The language used by the parties merely prohibits the erection or maintenance of gates which would interfere with egress or ingress through the 15-foot wide easement or along the western boundary of the easement. Furthermore, since appellants as owners of the realty are responsible for the property taxes and as provided by the final judgment are liable for one-fourth of the maintenance fees and other costs attributable to the easement, they should have reasonable access to the easement.

Accordingly, we reverse the final judgment of the trial court and remand the cause for entry of an amended final judgment which shall include a provision allowing appellants reasonable access to the easement from the eastern boundary of the easement. The provision for such access, however, shall not impede the unrestricted use of the easement by the other parties.

REVERSED and REMANDED for proceedings consistent with this opinion.

SCHEB and OTT, JJ., concur.


author: DENNIS, Justice.

text:
    Joseph A. OGEA v. Joseph C. JACOBS et al.
    No. 58364.
    Supreme Court of Louisiana.
    April 11, 1977.

      Jacque B. Pucheu, Jr., Pucheu & Pucheu, Eunice, for plaintiff-relator.
    V. Parley Sonnier, Davidson, Meaux, On-ebane, Donohoe, Bernard, Torian & Diaz, Lafayette, for defendants-respondents.
   DENNIS, Justice.

This is a discovery dispute. It involves litigation arising from an oil drilling rig accident in which plaintiff, Joseph A. Ogea, was injured by a metal floor plate which fell upon him as he worked on the ground beneath the rig. Ogea sued his employer’s insurer, Highlands Insurance Company, his employer’s toolpusher and jobsite executive, Gordon E. Davis, as well as another employee and an officer of his employer. The accident occurred on February 21,1974, and suit was filed on February 19, 1975.

As plaintiff’s attorney was taking the deposition of Mr. Davis on October 23,1975, Mr. Davis, who was on the jobsite at the time of the mishap, had several lapses of memory regarding events he may have observed and facts reported to him by other witnesses. He testified, however, that within a few days after the incident he prepared a written accident report containing data obtained from other employees and including his own opinion as to the basic cause of the accident. When asked what he had reported as the basic cause, Mr. Davis suffered another lapse of memory. Plaintiff’s attorney then asked Mr. Davis for his present opinion of the accident’s cause, but defense counsel instructed him not to answer.

After determining that the accident report was in Highlands’ possession plaintiff filed a motion for its production on March 26, 1976. In support of his motion the plaintiff annexed pertinent portions of the deposition of Mr. Davis. Subsequent to arguments on the motion the trial judge refused to compel production of the accident report. In his written reasons for judgment, the trial judge found that the report had been prepared in anticipation of litigation and stated: “the accident report is privileged, until ‘good cause’ is shown. Other than a general argument, no solid ‘evidence’ of good cause has been adduced by Plaintiff.”

The court of appeal denied plaintiff’s application for supervisory relief, finding no error or abuse of discretion in the trial court’s ruling. We granted writs because the holdings below appear to reflect a misapprehension of the rules of discovery. For the reasons hereinafter assigned, we reverse.

The record presented for our review contains the full deposition of Mr. Davis. Apparently no additional evidence was introduced by either party at the hearing on the motion to produce. The deposition contains no direct evidence that Mr. Davis prepared the accident report in anticipation of litigation. He was never asked why he prepared the report. A party seeking to avoid production of a writing otherwise discoverable bears the burden of proving that it was prepared or obtained in anticipation of litigation or in preparation for trial. E. g., Sonier v. La. Power and Light Co., 272 So.2d 32 (La.App. 1st Cir. 1973). Cf. Commonwealth of Puerto Rico v. S.S. Zoe Colocotroni, 61 F.R.D. 653 (D.Puerto Rico, 1974); Technograph, Inc. v. Texas Instruments, Inc., 43 F.R.D. 416 (S.D.N.Y.1967).

Accordingly, the trial judge was in error in finding that the accident report was prepared in anticipation of litigation, unless this fact was established by stipulation at oral argument upon the motion to produce. Because no transcript of that proceeding appears in the record and a resolution of the issue is not essential to our review of the dispute, we will assume this was the case and base our decision on other grounds.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, and it is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. La.C.C.P. art. 1422 (Acts 1976, No. 574, § l). The defendants here can not contend that the accident report contains attorney-client communications, the mental impressions of an attorney or expert, or other privileged matter. See La.C.C.P. arts. 1422 and 1424 (Acts 1976, No. 574 § 1). Instead, they claim it is not subject to discovery because it was prepared in anticipation of litigation.

A writing obtained or prepared by an adverse party, his attorney, surety, underwriter, expert or agent in anticipation of litigation or in preparation for trial is immune from discovery unless the party seeking production or inspection shows that denial thereof will unfairly prejudice him in the preparation of his case or will cause him undue hardship or injustice. La.C.C.P. art. 1424 (Acts 1976, No. 574 § l). In the instant case the trial judge’s determination that plaintiff failed to adduce “solid evidence” showing “good cause” for production of the report was tantamount to a finding that plaintiff failed to introduce real evidence that denial of discovery would cause unfair prejudice, undue hardship or injustice.

The words “unfair prejudice,” “undue hardship,” and “injustice,” of course, are not terms of precision. They represent concepts which evolved in the federal rules of discovery from numerous judicial decisions rendered in the context of widely varying factual situations. Louisiana’s discovery law is derived from the federal discovery rules. See, Preliminary Statement, Book 2, Title 3, Chapter 3, Louisiana Code of Civil Procedure of 1960. Likewise, most of the 1976 amendments to Louisiana’s discovery provisions were patterned after the 1970 revision of the federal rules of discovery. Maraist, Recent Changes in Louisiana Discovery Law: An Analysis of Act No. 574 of 1976, XXIV La.BJ. 161 (December, 1976). Consequently, Louisiana courts construing the Louisiana discovery provisions have frequently relied on federal jurisprudence under analogous federal provisions as persuasive authority on questions involving the discoverability of documents. Madison v. Travelers Insurance Co., 308 So.2d 784 (La.1975); Cousins v. State Farm Mutual Automobile Insurance Co., 258 So.2d 629 (La.App. 1st Cir. 1972); American Mark Distributing Corp. v. Louisville & Nashville R.R. Co., supra; Geolograph Service Corp. v. Southern Pacific Co., supra; Self v. Employers Mutual Liability Insurance Co. of Wisconsin, 90 So.2d 547 (La.App. 2d Cir. 1956).

To discover written statements under Federal Rule 26(b)(3) it must be shown that a party “has substantial need of the materials in the preparation of his ease” and that “he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” We discern no substantial difference between this burden and that which must be borne by a party seeking discovery of statements prepared in anticipation of litigation under the Louisiana Code of Civil Procedure article 1424.

The notes of the Advisory Committee to Federal Rule 26 set forth the factors which federal courts have considered relevant in determining whether this type discovery should be allowed:

“ * * * The court in Southern Ry. v. Lanham, 403 F.2d 119 (5th Cir. 1968), while it naturally addressed itself to the ‘good cause’ requirements of Rule 34, set forth as controlling considerations the factors contained in the language of this subdivision. The analysis of the court suggests circumstances under which witness statements will be discoverable. The witness may have given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter. Lanham, supra at 127-128; Guilford [Guilford National Bank v. Southern Ry., 297 F.2d 921 (4th Cir.)], supra at 926. Or he may be reluctant or hostile. Lanham, supra at 128-129; Brookshire v. Pennsylvania RR, 14 F.R.D. 154 (N.D. Ohio 1953); Diamond v. Mohawk Rubber Co., 33 F.R.D. 264 (D.Colo.1963). Or he may have a lapse of memory. Tannenbaum v. Walker, 16 F.R.D. 570 (E.D.Pa.1954). Or he may probably be deviating from his prior statement. Cf. Hauger v. Chicago, R.I. & Pac. RR, 216 F.2d 501 (7th Cir. 1954). On the other hand, a much stronger showing is needed to obtain evaluative materials in an investigator’s reports. Lanham, supra at 131-133; Pickett v. L. R. Ryan, Inc., 237 F.Supp. 198 (E.D.S.C.1965).” Advisory Committee’s Note, 48 F.R.D. 501; Fed. Rules Civ.Proc. rule 26, U.S.C.A., Notes of Advisory Committee on Federal Rules, at 158.

In a recent analysis of the federal decisions, Moore observes:

“Under the Rule [26(b)(3)] as presently worded the factors to be taken into account in the exercise of the district court’s discretion [include] the importance of the information sought in the preparation of the case of the party seeking it, and the difficulty it will face in obtaining substantially equivalent information from other sources if production is denied. The latter factor finds illustration in many circumstances. Statements contemporaneous with the occurrence are in a sense unique and cannot be duplicated by later interviews or depositions. * * Statements of witnesses who since the statements were taken have become unavailable afford another example. Hostility of a witness, deviation from a prior statement, or lapse of memory are also factors to be considered.” (Footnotes omitted; emphasis supplied.) 4 Moore’s Federal Practice, ¶ 26.64[3] at 26-419-432.

Plaintiff contends that he lacks independent recollection of the events and facts surrounding the accident. He was injured by an object which fell on him from a height of ten to fifteen feet. There being no evidence in the record to refute his reasonably contended lack of knowledge, we accept it as an established circumstance under which he seeks discovery of the accident report. Plaintiff argues that information substantially equivalent to that contained in the accident report, reflecting the results of an investigation conducted within days of the accident, and constituting a unique and immediate impression of the circumstances surrounding the accident, is unavailable to him despite his present ability to depose those persons present during the accident. He argues that there can be no realistically equivalent discovery of such facts through depositions relying solely on the memory of the witnesses.

The merit of plaintiff’s argument is amply demonstrated by the testimony of Mr. Gordon Davis in his deposition. He was present and apparently looking directly at the plaintiff when the accident occurred. He gathered facts about the mishap from employee-witnesses under his supervision, which he set forth in the accident report along with his opinion of the cause of the accident. Yet when he was questioned about these facts and his opinion some twenty months after the accident his memory failed repeatedly regarding crucial portions of the data he recorded shortly after plaintiff’s injury.

There is persuasive authority for the notion that statements taken shortly after the accident are of unique value for discovery purposes and should be made available to parties merely because of the passage of time in itself:

“ * * * Indeed, though there are cases to the contrary, there is now substantial authority for the proposition that statements taken from witnesses close to the time of the occurrence are unique, in that they provide an immediate impression of the facts. On this view, mere lapse of time is in itself enough to justify discovery. * * * The notion that the statement taken nearest to the event will most accurately reflect the perception the witness had of the event is amply supported by psychological studies, as well as by common sense. This fact lends strong support to the argument that lapse of time in itself creates necessity or justification for the production of statements taken near the time of the event.” Wright, Law of Federal Courts, § 82 at p. 367 (2d ed. 1971) (footnotes omitted).

See, e. g., McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972); Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1968); Southern Railway Co. v. Campbell, 309 F.2d 569 (5th Cir. 1962). See also, Wright & Miller, Federal Practice and Procedure: Civil, § 2025 at 220-21 and cases cited therein.

We cannot conclude that in every case, because of the lapse of time in itself, a party denied production of a statement taken near the time of the event will be unfairly prejudiced in the preparation of his case or caused undue hardship or injustice. However, this circumstance combined with other factors, e. g., a witness’ unavailability, reluctance, hostility, lapse of memory or apparent deviation from his prior statement, may produce a substantial likelihood that a litigant will be forced to trial without information in possession of his adverse party which appears reasonably calculated to lead to admissible evidence. In such a case the risk of prejudice to his case, undue hardship or injustice would warrant an order for the production and inspection of the writing.

That the party seeking discovery was responsible for the delay in taking statements or depositions of witnesses, thereby enhancing the hardship likely to result from a denial of access to the earlier, almost contemporaneous, statements and reports, should not prevent him from discovering those documents. In Southern Railway Company v. Lanham, 403 F.2d 119 (5th Cir. 1968), the court aptly expressed the reasons for this conclusion:

“Discovery would not appear to prejudice appellant unduly though it is true that appellees will derive the benefit of appellant’s diligence in securing statements from the crew. Our role in administering the discovery rules, however, is not to reward diligence or to penalize laziness. A lawsuit is not a contest in concealment, and the discovery process was established so that ‘either party may compel the other to disgorge whatever facts he has in his possession.’ Hickman v. Taylor, 1947, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451. Moreover, the fact that one party acts swiftly and first obtains the facts by the taking of statements or otherwise, gives that party no inherent right to secrete those facts and withhold them from the adverse party. If the adverse party can demonstrate good cause for the production of these facts, the Court should order the facts to be produced.” 403 F.2d at 130.

Applying the principles set forth above, we find that denial of plaintiff’s request for production of the accident report, containing as it does the results of Davis’ almost contemporaneous investigation into the causes, facts and circumstances surrounding the plaintiff’s injury, would unfairly prejudice the plaintiff in the preparation of his case, in view of his present inability, because of the passage of time and Davis’ lapses of memory, to obtain equivalent data equally likely to lead to the discovery of admissible evidence.

Defendants’ primary objection in this Court to production of the accident report is that it contains an expression of Gordon Davis’ opinion as to the ultimate cause of the accident. In fact, defendants offer to disclose all of the report except Davis’ opinion, but they urge that this Court first rule that the opinion is immune from discovery. Arguing that Davis’ opinion would be inadmissible at trial as lay opinion testimony, and, that if Davis is regarded as an expert, his opinion is entitled to an unqualified immunity from discovery under La.C.C.P. art. 1424, defendants further assert that Davis’ opinion as to the accident’s ultimate cause would not be likely to aid the plaintiff in obtaining admissible evidence.

We need not consider the merit of the contention that Davis’ opinion would be inadmissible at trial. But see, McCormick on Evidence, §§ 263, 264, at pp. 632-33 (Cleary ed. 1972). It is immaterial that the expression of opinion contained in the accident report might itself be inadmissible at trial. As is made abundantly clear in Article 1422 of the Louisiana Code of Civil Procedure, the test of discoverability is not the admissibility of the particular information sought, but whether the information appears reasonably calculated to lead to the discovery of admissible evidence. See, e. g., Fox v. Argonaut Southwest Insurance Co., 230 So.2d 400 (La.App. 4th Cir. 1970). Cf. 4 Moore’s Federal Practice, ¶ 26.56[4]. We do not regard as serious the contention that Gordon Davis prepared the report as an expert, because there is no evidence to support such a finding.

Nevertheless, defendants cite several federal cases in which opinions were deleted from otherwise discoverable documents prepared in anticipation of litigation. Southern Railway Co. v. Lanham, supra, (the court-ordered the deletion of the opinion of an investigating claim agent as to the cause of an accident from an accident report ordered produced); Holmes v. Gardler, 62 F.R.D. 70 (E.D.Pa.1974); Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973). These cases are inapposite because of the difference between the Louisiana discovery provisions and the federal rule under which they were decided.

Federal Rule of Civil Procedure 26(b)(3) in part provides:

“ * * * [W]hen the required showing [for production of documents, etc.] has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis supplied.)

Thus, the federal rule affords protection to opinions of a broader class of individuals than that found in Louisiana Code of Civil Procedure Article 1424, which prohibits discovery of the written opinions, conclusions, mental impressions and theories of experts and attorneys only.

The written opinion of Gordon Davis, neither an attorney nor an expert, but a party to the present litigation, as to the ultimate cause of the accident giving rise to plaintiff’s injuries is not a mental impression protected from discovery under the Louisiana discovery rules. Both Davis’ opinion as to the cause of the accident and the data he gathered from'the other employee-witnesses appear reasonably calculated to lead to the discovery of admissible evidence.

Ordinarily the trial judge’s finding on such issues is entitled to much weight. In a case such as this, however, where the plaintiff adduced abundant evidence in support of his motion, and yet the trial court found “no evidence” of good cause for discovery or unfair prejudice to the plaintiff’s case, we conclude that the finding below must have been produced by a misunderstanding or error of law.

Accordingly, the order of-the trial judge denying production of the accident report is set aside, and its production for inspection by the plaintiff is hereby ordered.

MARCUS, J., concurs.

SUMMERS, J., dissents finding no error in the judgments of the trial and appeal court judgments.

      . During the deposition Davis indicated that he could not remember who had told him that the floor plate had fallen and struck the plaintiff; he could not remember if he saw the floor plate fall; he could not remember whether Mr. Jacobs, a co-defendant, had been able to maneuver the floor plate to the end of the rig platform before the accident; he did not recall who had aided him in going to plaintiffs assistance immediately after the accident; he could not remember whether he had seen a floor plate lying around in the vicinity after the accident; he did not recall the persons with whom he had discussed the accident; he could not remember what others had told him about the accident; and, he could not remember what conclusions he had reached respecting the ultimate cause of the accident at the close of his investigation.

      . On recommendation of the Louisiana State Law Institute the legislature, by Act No. 574 of 1976, enacted a comprehensive revision of the civil discovery provisions of the Louisiana Code of Civil Procedure, which became effective on October 1, 1976. Being procedural only, and not operating to affect contractual or vested property rights, these provisions became applicable in the present case as of their effective date. Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940). Nevertheless, because the new discovery rules which govern here are basically similar to the former ones, we would have reached the same result by applying them.

      . The limitations on discovery of information gathered in anticipation of litigation contained in former La.C.C.P. art. 1452 now appear in La.C.C.P. art. 1424, which, in pertinent part, provides:
      “The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, in-demnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.”

      . Under the discovery provisions existing before the effective date of La. Acts of 1976, No. 574, Article 1492 required a preliminary showing of “good cause” as a prerequisite for obtaining an order compelling production of documents, regardless of whether they were prepared in anticipation of litigation, or merely prepared in the ordinary course of business. La.C.C.P. art. 1492, repealed by La. Acts 1976, No. 574; e. g., Tibbs v. Housing Authority of New Orleans, 204 So.2d 70 (La.App. 4th Cir. 1967). The mere fact that a document might be discoverable within the broad terms of La.C. C.P. art. 1436—i. e., relevant, not privileged and likely to lead to the discovery of admissible evidence — was not automatically regarded as establishing “good cause” for its production. E. g., Geolograph Service Corp. v. Southern Pacific Co., 172 So.2d 128 (La.App. 1st Cir. 1965). Although it was recognized that in some instances, as where the relevancy of the document sought was apparent, and where its usefulness in the preparation of the case of the party seeking production was obvious, “good cause” could be inferred from the motion for production itself. American Mark Distributing Corp. v. Louisville & Nashville R.R. Co., 180 So.2d 869 (La.App. 4th Cir. 1965).
      Once the preliminary showing of “good cause” was made, if it appeared that the document sought had been prepared in anticipation of litigation, then, under the terms of La.C.C.P. art. 1452 (superseded by La.C.C.P. art. 1424), an additional showing of unfair prejudice, undue hardship or injustice was required to justify an order compelling its production. Documents prepared in anticipation of litigation and reflecting the mental impressions, conclusions, opinions, or theories of attorneys and experts were accorded an absolute immunity against discovery. State, through Department of Highways v. Spruell, 243 La. 202, 142 So.2d 396 (1962). It seems clear that a showing which would have satisfied the requirements of La.C.C.P. art. 1452 (superseded by La.C.C.P. art. 1424) would have been sufficient to establish “good cause” under La.C.C.P. art. 1492 (superseded by La.C.C.P. art. 1461). In fact, courts have often equated a showing of good cause with a demonstration that denial of discovery would unduly prejudice the preparation of petitioner’s case or cause him hardship or injustice. See, Geolograph Service Corp. v. Southern Pacific Co., supra, and federal cases quoted therein.
      Before the 1970 amendments to the Federal Rules of Civil Procedure governing discovery, Rule 34, which was the source of former Article 1492 of the Code of Civil Procedure, provided inter alia:
      “Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control; * (Emphasis supplied.)
      Thus, as in Louisiana, a preliminary showing of “good cause” was necessary for an order compelling discovery of any document — regardless of whether it was prepared in anticipation of litigation, or merely prepared in the ordinary course of business.
      The federal courts applying this rule came to use a dual standard for determining whether “good cause” was established: being satisfied that mere relevancy of the document sought was enough when it was not prepared in anticipation of litigation. Connecticut Mutual Life Insurance Co. v. Shields, 17 F.R.D. 273 (S.D.N.Y.1955); Houdry Process Corp. v. Commonwealth Oil Refining Co., 24 F.R.D. 58 (S.D.N.Y.1959); Bell v. Commercial Insurance Co. of Newark, N.J., 280 F.2d 514 (3d Cir. 1960); but requiring much more than mere relevancy — i. e., the courts would look to the importance of the materials to the preparation of the case of the party seeking discovery, the necessity for the materials, and the alternative sources for securing reasonably equivalent information— where the materials sought were prepared in anticipation of litigation. E. g., Brown v. New York, New Haven & Hartford Railroad Co., 17 F.R.D. 324 (S.D.N.Y.1955); Guilford National Bank of Greensboro v. Southern Railway Co., 297 F.2d 921 (4th Cir. 1962); Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958).
      The 1970 amendments to the federal discovery provisions eliminated the requirement of a preliminary showing of “good cause” for discovery of documents and tangible things under Rule 34, but retained the requirement of a special showing of necessity for production of trial preparation materials by expanding the scope of Rule 26(b).
      Thus, the showing of special necessity to obtain production of materials prepared in anticipation of litigation under present Rule 26(b)(3) is substantially identical to that previously required under the stricter “good cause” standard applied to questions of discovery of those materials under former Rule 34. See generally, Notes of the Advisory Committee on Federal Rules 26 and 34, 48 F.R.D. 492, 497-508, 525, 526-27 (1970); see also, 4 Moore’s Federal Practice, ¶ 26.64 at 26-412 through 26-457.
      The 1976 amendments to the Louisiana discovery articles deleted the requirement for production of documents that a party seeking discovery make a preliminary showing of “good cause,” see La.C.C.P. art. 1461 (enacted by La.Acts.1976, No. 574), as well as the requirement that a litigant always obtain a court order compelling production of documents and tangible things. See, La.C.C.P. art. 1462 (enacted by La.Acts 1976, No. 574). Documents falling within the scope of La.Code of Civil Procedure Article 1422 are now discoverable of right, unless they were prepared in anticipation of litigation. In that event they are discoverable only upon a showing by the party seeking discovery that he will be unfairly prejudiced in the preparation of his claim or will be subjected to undue hardship or injustice by the failure of the court to order their production. La.C.C.P. art. 1424 (enacted by La.Acts 1976, No. 574).

      . Federal Rule of Civil Procedure 26(b)(3) provides inter alia:
      “* * * a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. * * *”


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Roy JACKSON.
    No. 58612.
    Supreme Court of Louisiana.
    April 11, 1977.

      John B. Whitaker, Makar & Whitaker, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric R. Harrington, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Roy Jackson with being an accessory after the fact to a simple burglary, a violation of LSA-R.S. 14:25. After a jury trial, the defendant was found guilty. The court sentenced him to two years imprisonment. He appeals his conviction and sentence, relying upon a single assignment of error: that there was no evidence he harbored, concealed, or aided the offenders, an essential element of the offense.

The undisputed facts are as follows:

Just before midnight on September 22, 1974, Jackson approached three acquaintances standing in front of Alfred Coutee’s Place, a bar and pool hall located in Natchi-toches on Pavie Street. Upon Jackson’s approach, the three men ran around the side of the establishment, which was closed for the night. Jackson pursued them and asked what they were doing. They told him that they were planning to break into the building and take the money from the coin boxes on the pool tables. After learning their plans, Jackson departed.

The next day, Jackson returned to Pavie Street where he learned that Alfred Cou-tee’s Place, as well as three other nearby establishments, had been burglarized during the night. Later that day, Jackson encountered the same three men, took them aside, and told them that he knew that they had burglarized the four establishments. They agreed that if Jackson would not report them, he would be given a “cut of the money.” The burglars then gave defendant $87.00 in quarters and seven packages of cigarettes. For his own use, Jackson later exchanged the quarters for bills at several business establishments.

After Jackson’s arrest, he gave two voluntary statements detailing the above facts. At trial, he confirmed these statements.

Defendant asserts that there is no evidence supporting the essential elements of an accessory-after-the-fact conviction. Defendant raised this issue twice by a motion for a directed verdict: once after the State’s opening statement and then at the close of the State’s evidence. The trial court denied the motions for a directed verdict.

The 1975 amendment to Louisiana Code of Criminal Procedure Article 778 deprives the trial judge of the right to direct a verdict of acquittal in jury cases. In State v. Marmillion, La., 339 So.2d 788 (La.1976), we specifically held this amendment procedural in nature and applicable to trials held after its effective date. Since the present trial occurred after the effective date of the amendment, the court correctly denied defendant’s motion for a directed verdict.

The defendant raised the issue for the third time in a “motion for a judgment non obstante veredicto,” that is, a motion for an acquittal notwithstanding the jury verdict. The Louisiana Code of Criminal Procedure contains no provision for such a motion, though it is commonly used in the United States district courts. See Federal Rules of Civil Procedure 50. We know of no compelling reason, however, why the motion should not be treated as a motion for a new trial. A motion for a new trial is the proper procedural vehicle for asserting a complete lack of evidence of the essential elements of a crime. See State v. Celestine, La., 320 So.2d 161 (1975).

LSA-R.S. 14:25 defines an accessory after the fact as follows:

“An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.”

The Reporter’s comment following that article states:

“Generally speaking, virtually any sort of aid given to a fugitive felon, to hinder his being arrested, tried or punished, will make the person assisting an accessory after the fact—as furnishing a car, food, shelter or money to help him escape or elude the lawful authorities, or using force or threats to rescue or protect him.”

Under its terms, the article requires evidence that the defendant harbored, concealed, or aided the felon personally with the specific intent of preventing his apprehension and punishment. The article cannot be extended by analogy to cover other crimes outside its provisions. See LSA-C.Cr.P. Art. 3.

The defendant contends that there was no evidence that he committed an overt act to prevent the felons’ arrests, but only evidence that he failed to report a felony. The failure to report a felony, he asserts, falls short of the requirements for an accessory after the fact. In our opinion, this contention has merit.

Under Section 856 of the Louisiana Revised Statutes of 1870, the failure to report a known crime, usually termed misprision, was a criminal offense. In 1942, the Legislature repealed that statute, and no general misprision article was retained in the Louisiana Criminal Code (1942). See Act 43 of 1942; Reporter’s Comments, LSA-R.S. 14:131.

As we have noted, the Louisiana Criminal Code did retain an article, LSA-R.S. 14:25, relating to accessoriés after the fact. The code also contains two other articles germane to the present case: LSA-R.S. 14:131 (compounding a felony) and LSA-R.S. 14:69 (receiving stolen things).

LSA-R.S. 14:131 provides in pertinent part:

“Compounding a felony is the accepting of anything of apparent present or prospective value which belongs to another, or of any promise thereof, by a person having knowledge of the commission of a felony, upon an agreement, express or implied, to conceal such offense, or not to prosecute the same, or not to reveal or give evidence thereof.”

LSA-R.S. 14:69 provides in pertinent part:

“Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.”

The defendant’s conduct in the present case falls at the confluence of the articles defining accessory after the fact, compounding a felony, and receiving stolen things. However, since defendant was charged only with being an accessory after the fact to a simple burglary, the conviction can be sustained only if all the elements of that offense are present.

In State v. Graham, 190 La. 669, 182 So. 711 (1938), in dicta, this Court stated that “misprision of a felony is almost if not identically the same offense as that of an accessory after the fact.” Although the similarity was strongly expressed, the statement leaves room for the well-accepted technical distinctions that are apparent in the present case.

It is well established that the mere failure to report a known crime to law enforcement authorities does not render one an accessory after the fact. Maddox v. Commonwealth, Ky., 349 S.W.2d 686 (1960); McClain v. State, 10 Md.App. 106, 268 A.2d 572 (1970); Levering v. Commonwealth, 132 Ky. 666, 117 S.W. 253 (1909); 22 C.J.S. Criminal Law § 99d., p. 278; W. LaFavre and A. Scott, Criminal Law, § 66, p. 523 (1972); R. Perkins, Criminal Law, § 8(4), pp. 667-668 (2d ed. 1969).

Here, however, the legal issue is complicated by the added circumstance that the defendant accepted remuneration for his non-disclosure. The remuneration was in the form of money and cigarettes taken in the burglaries.

Unquestionably, taking something of value for an agreement not to reveal the felony compounded the felony. Under the circumstances, defendant also received stolen property.

Although punishable as such, compounding a felony under these circumstances does not render one an accessory after the fact. The gist of the offense is receiving compensation for an agreement not to reveal the felony. No aid is given to the fugitive felon personally to prevent his arrest, an essential of the crime charged here. Chenault v. State, Tex., 46 Tex.Cr. 351, 81 S.W. 971 (1904); 22 C.J.S. Criminal Law, § 99f p. 279; W. Clark and W. Marshall, A Treatise on the Law of Crimes, § 8.07, p. 528 (7th ed. 1967); R. Perkins, Criminal Law, § 8, p. 668 (2d ed. 1969).

In Chenault v. State, supra, the Texas Court stated:

“Nor does the fact that one agrees for money not to give evidence against a felon, or knows of the felony and does not disclose it, make the party an accessory after the fact.”

It is equally well established that receiving stolen property does not render one an accessory after the fact. In such a case, the offender receives the stolen property but does not harbor, conceal, or help the felon personally. State v. Sims, 99 Ariz. 302, 409 P.2d 17, cert. denied, 384 U.S. 980, 86 S.Ct. 1880, 16 L.Ed.2d 691 (1966); Smith v. State, Ind., 229 Ind. 546, 99 N.E.2d 417 (1951); 22 C.J.S. Criminal Law § 99h, p. 279; W. Clark and W. Marshall, A Treatise on the Law of Crimes, § 8.07, p. 526 (7th ed. 1967); W. LaFavre and A. Scott, Criminal Law, § 66, p. 523 (1972).

We conclude that there is no evidence of the crime charged. Hence, we must reverse the conviction and grant a new trial.

For the reasons assigned, the conviction and sentence are reversed and set aside, and the case is remanded to the district court for a new trial.

      . The Louisiana Criminal Code did retain a special article on misprision of treason. See LSA-R.S. 14:114.