author: LEMMON, Justice. BLANCHE, Justice MARCUS, Justice DENNIS, Justice,

text:
    Jimmy HARPER v. BROWN & ROOT, INC., et al.
    No. 80-C-1479.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      Kramer & Laird, James M. Buck, Alexandria, for plaintiff-applicant.
    Trimble, Randow, Smith & Wilson, Lon P. Wilson, Gist, Methvin, Hughes & Mun-sterman, John W. Munsterman, Provosty, Sadler & deLaunay, Alvin A. Provosty, III, Alexandria, for defendants-respondents.
   LEMMON, Justice.

Plaintiff, a mechanic employed by Brown & Root, Inc., filed this suit against his employer to recover the damages he sustained when his tools were stolen after working hours. The trial court denied recovery, and the court of appeal affirmed. 383 So.2d 1079. We granted plaintiff’s application for certiorari to review these rulings which held that no relationship of depositor-depositary had been established between the parties. 389 So.2d 1129.

Brown & Root contracted with Central Louisiana Electric Company (CLECO) to construct a power plant on CLECO’s property, which already contained an existing power plant and attendant offices. The construction area for the power plant bordered on a lake and was separated by a fence from the remaining property. Within this fenced area Brown & Root conducted its construction operations and stored machines and materials. Access to the construction area was through gates controlled by security guards (provided by CLECO), who were on duty around the clock seven days a week. Parking was provided for employees’ cars in a lot near the gates, and employees were not allowed to bring cars into the construction area.

As a condition of plaintiff’s employment he was required to furnish his own tools on the job site. His employment duties required numerous tools which filled two chests, weighing a total of about 175 pounds. Regular working hours were 7:00 a. m. to 5:00 p. m., Monday through Saturday. During working hours the tools were transported around the construction area on a company truck, which was parked near the guard shack after working hours. Employees could remove their tools from the construction area at the end of the day (if they obtained a permit), or could leave their tools within the fenced area. However, the number of gang boxes and sheds for storage was limited, and the mechanics in fact left their tools on the company truck. After working hours all Brown & Root employees left the construction area, and the gates were locked until the next day of work.

When plaintiff began his employment, he asked Jack Bigger, Brown & Root’s foreman, about storing his valuable tools or taking them home, and Bigger told him to keep the tools on the truck until construction of a shop was completed. Bigger pointed out there were guards on duty 24 hours a day.

When plaintiff reported to work on the morning of Monday, August 1, 1978, all of his tools were missing. The tools of the other mechanics, however, were on the truck. This suit followed Brown & Root’s rejection of plaintiff’s claim for the value of his tools.

Deposit is an act by which a person receives movable property from another and binds himself, expressly or implicitly, to preserve the property and to return it in kind. C.C. art. 2926; M. Rubin, Bailment and Deposit in Louisiana, 35 La.L.Rev. 825 (1975). The principal requisites for the formation of a depositor-depositary relationship are the mutual consent of the parties and the delivery of the property. C.C. art. 2930 and 2932. If the depositor surrenders possession and control in some degree, although not completely, this may be sufficient delivery to establish the relationship, when the parties have otherwise demonstrated their consent and intent to form such a relationship. Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973).

In the present case the consent of the parties to a deposit is implicit from the facts and circumstances. The employer required the employee to furnish (deliver) a large quantity of tools, and the employer received delivery of these tools and transported them around the construction site on the employer’s truck during working hours. The employee removed a tool from the truck only as needed to perform employment duties and returned the tools to the truck when he completed the work in which the tool was needed. At the end of the working day neither party realistically expected that the employee was to reassume complete possession and control of the 175 pounds of tools, when the employee could not bring a car into the construction area and needed a special security clearance pass from defendant in order to take any items out. Moreover, both parties relied on the fact that CLECO provided security guards as eliminating the need for the employee to regain complete possession and control of the tools each evening and take them home.

Under these circumstances the employee as a practical matter was virtually required to leave his tools at the construction site and cannot reasonably be viewed as having done so for his own convenience as a matter of choice. We hold that when the employee initially furnished the tools on the job site, the parties implicitly intended that the employer would preserve the tools and return them to the employee, partially during each working day and completely at the termination of his employment. The fact that both parties exercised some degree of possession and control each day does not necessarily exclude a finding of receipt and delivery necessary to constitute a deposit, when the parties by their words and action clearly intended the creation of this relationship.

Once the depositor establishes the existence of a deposit and the loss of the property while deposited, it is presumed that the loss resulted from the depositary’s lack of care, and the depositary has the burden to exonerate himself from fault. Brown & Blackwood v. Ricou-Brewster Building Co., 239 La. 1037, 121 So.2d 70 (1960).

Defendant did not meet its burden of proving the loss did not result from its fault, and plaintiff is entitled to recover his damages resulting from the loss. The matter will be remanded to the court of appeal for the determination of the quantum of damages.

DECREE

The judgment of the court of appeal is reversed, and the matter is remanded to the court of appeal for determination of the amount of damages. The costs in all courts, attributable to the plaintiffs demand, are assessed against defendant.

BLANCHE, MARCUS and DENNIS, JJ., dissent and assign reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The court of appeal opinion is correct. “The very basic essentials for the formation of a contract of deposit, i. e., delivery and receipt, are lacking.” 383 So.2d 1079, 1082 (3rd Cir. 1980).

MARCUS, Justice

(dissenting).

I agree with the courts below that no deposit relationship existed between plaintiff and Brown & Root. The very basic essentials for the formation of a contract of deposit, that is, delivery and receipt, were lacking. Accordingly, I respectfully dissent.

DENNIS, Justice,

dissenting.

I respectfully dissent from the majority’s holding that a contract of deposit existed between the plaintiff and his employer. The trial court found that no depositor-depositary relationship was presented under the facts in this case. I agree with the court of appeal that this finding is not manifestly erroneous. The majority, applying the same legal principles as both lower courts, has reinterpreted the facts to reach a different, and in my opinion, unjustified result. The fact that both parties expected the plaintiff’s tools to be left at the construction site, or even that both considered such practice safe, is insufficient to support a finding that the defendant-employer implicitly consented to become a depositary and “received” the tools in that capacity.

Secondly, ■ since the majority saw fit to reverse the lower courts’ decisions that the defendant was not a depositary, it was incumbent upon the majority to outline the duty of the depositary and how that duty was breached. The majority does not adequately categorize the defendant as a compensated depositary upon which the duty to preserve is rigorously enforced. La.C.C. art. 2938. A depositary is only required to use the same diligence in preserving the deposit that he uses in preserving his own property. La.C.C. art. 2937. Although a presumption is available to the plaintiff that the loss resulted from the depositary’s failure to act as a prudent administrator, this presumption is not irrebuttable. E. g., La.C.C. art. 2939; Sonnier Oldsmobile Inc. v. Southeastern Fidelity Ins. Co., 377 So.2d 572 (La.App. 3d Cir. 1979). And in no sense is the depositary properly considered an insurer. See, Zurich Ins. Co. v. Daigle Pontiac-Buick, Inc., 292 So.2d 282 (La.App. 1st Cir. 1974); Travelers Ins. Co. v. Coleman E. Adler, Inc., 285 So.2d 381 (La.App. 4th Cir. 1973); Segura v. United States Aircraft Ins. Group, 246 So.2d 880 (La.App. 3d Cir. 1971).

      . At the time of trial there were storage buildings in which tools were kept on the site.

      . The decision of the intermediate court turned on a finding that there was no delivery and receipt since plaintiff maintained possession and control.

      .In the Coe Oil case the depositor purchased fuel from the depositary and left his locked airplane overnight in a tie-down spot on the depositary’s leased premises. This court held that the fact the airplane was locked does not militate against a finding of delivery and receipt of the dé'posit, when the essential element of mutual intent is present.

      . The finding of a deposit is generally inappropriate in an employer-employee relationship. However, when an employer requires employment conditions which actually constitute a deposit, the existence of the employer-employee relationship does not exclude the finding of a deposit.

      . Although defendant may not have intended to assume the obligations imposed by law on a depositary, it is the intent to establish the relationship that is determinative. A lessor, for example, may not intend to assume every obligation attendant to that relationship, but the law imposes the obligations when the parties by their words and actions enter into a lease.


source: Caselaw Access Project

author: DENNIS, Justice. WATSON, Justice, MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Mancel CLARK.
    No. 80-KA-1609.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      Frank T. Salter, Jr., Steven W. Hale, Salter, Streete & Hale, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Mancel Clark, was convicted by a jury of theft of livestock, La.R.S. 14:67.1, and sentenced to thirty months at hard labor. Defendant appeals from his sentence, arguing two assignments of error: (1) The trial court failed to comply with the sentencing guidelines of Louisiana Code of Criminal Procedure Article 894.1; (2) The trial court imposed as excessive sentence in violation of Article 1, Section 20 of the Louisiana Constitution. Finding merit in these assignments, we vacate the sentence and remand for re-sentencing.

Defendant, a forty-two year old father of three minor children, committed his first criminal offense, theft of a calf, on August 29, 1979. Defendant gave a statement to law officers that he shot the calf with the intent to store the meat in his freezer. However, when his crime was discovered, defendant attempted to conceal evidence by throwing his rifle in the Sabine River and dumping the carcass in an isolated area. Defendant pleaded not guilty to the charge, but was found guilty by a jury.

In his assignments of error defendant argues that the trial judge failed to comply with the sentencing guidelines of Article 894.1 in that he failed to take into account the recent amendment of 14:67.1, which lessened the penalty for first offense theft of livestock, and two recent opinions of this Court. At the time of the offense the penalty for first offense theft of livestock was imprisonment at hard labor for not less than one nor more than ten years. La.R.S. 14:67.1 as amended by Acts 1978, No. 222 § 1. By act number 184 of 1979 the legislature amended the penalty for first offense theft of livestock by providing that the offender shall be imprisoned for not more than one year in jail and fined no more than one thousand dollars or both. Defendant committed his offense nine days before the effective date of the statute which reduced the maximum penalty for livestock theft. In State v. Wright, 384 So.2d 399 (La.1980) and State v. Doxey, 384 So.2d 402 (La.1980) this Court held, in cases involving livestock thefts occurring shortly after the statutory penalty reduction, that the trial judge should have considered the legislative amendment before imposing sentence on the defendant. In this case the record does not indicate that the judge took cognizance of the amending legislation in making his determination that a thirty-month sentence was warranted. However, after the judge pronounced sentence, defense counsel objected to it as excessive, pointing out that “the maximum penalty that could be imposed on today’s market would be one year in jail.” The trial judge responded only by saying, “Let the objection made by counsel be noted in the record.”

Where there has been an ameliorative change in the penalty provision of a statute that takes effect after the date of the offense, but before trial or final judgment, it is the rule in this state that the penalty provision in effect at the time of the offense is the applicable provision. State v. Dreaux, 205 La. 387, 17 So.2d 559 (1944). See also State v. Wright, supra; State v. Paciera, 290 So.2d 681, 687-88 (La. 1974). However, as pointed out in Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874 (1976) (Opinion of Justices Stewart, Powell and Stevens) “an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application” of the Eighth Amendment’s ban against cruel and unusual punishment. It is no less relevant to the inquiry of whether a particular penalty is excessive. And it has been acknowledged that legislative enactments provide an important means of ascertaining contemporary values. Id. at n. 19. Inherent in mitigatory changes in penalty provisions of an offense is a legislative determination that the present law is inappropriate, Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation: 121 U.Pa.L.Rev. 120, 138 (1972), and that the lesser penalty is sufficient to meet the legitimate ends of the criminal law. In re Estrada, 63 Cal.2d 740, 408 P.2d 948, 952, 48 Cal.Rptr. 172 (1965); People v. Oliver, 1 N.Y.2d 152, 134 N.E.2d 197, 201-02, 151 N.Y.S.2d 367, 373-74 (1956).

We conclude that the trial judge erred by not giving the legislative change of penalties any weight in his sentence determination. Moreover, we find that on the facts of this case a sentence of thirty months at hard labor is clearly excessive. In State v. Sepulvado, 367 So.2d 762 (La.1979), this Court held that the guidelines of Code of Criminal Procedure Article 894.1 provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives. Applying these criteria we conclude that a sentence of more than one year would be excessive on the facts of this case.

Our review of the record discloses salient facts about the defendant to which the trial judge attached too little importance in deciding upon the sentence. The record reflects that the defendant was a man of forty-two years of age with no prior criminal record. The defendant at the time of sentencing was married to a woman who was not in good health, he was contributing to the support of his three minor children, and he was gainfully employed.

In finding that a sentence of thirty months imprisonment at hard labor was appropriate, the trial judge stated that a suspended sentence would “depreciate [sic] the seriousness of [the] crime.” The trial judge could not have reached these conclusions had he given due weight to the legislative revision of the penalty which became effective just nine days after this offense, providing for a maximum sentence of one year in jail.

In determining whether the defendant would respond affirmatively to probationary treatment, see Article 894.1(B)(10), the trial judge seemed to assume that only very young offenders should receive probation. The trial judge said:

“Nor can I say that you are particularly likely to respond to probationary treatment. If you were a very young man, I might could view this in a more compassionate fashion from the standpoint of probation, but we think in terms of probation from a rehabilitation standpoint. You are a man 42 or 43 years old. Presumably putting you on probation wouldn’t — we are not going to educate you or give you any new job skills — you have been making a living at one thing or another for many years. You are not going to go back to school. So rehabilitation in your case, it seems to me, Mr. Clark, probably will have to result from your being incarcerated and the rehabilitation coming about as a result of your seeing that this kind of conduct is not approved by society, will not be tolerated, and if it is done it will be at the price of imprisonment.”

The primary purpose of probation is to promote the rehabilitation of the criminal by allowing him to reintegrate into society as a constructive individual, without being confined for the term of a prison sentence. State v. Davis, 375 So.2d 69 (La.1979). The trial judge related defendant’s chances of rehabilitation only to whether he could be taught new job skills. As we stated in Davis, however, probation serves a broader purpose. Age and job skills are pertinent to the inquiry only insofar as they aid in a determination of whether the offender once again can be brought back into society as a productive member. Gainful employment for many years before his first criminal offense at age forty-two presages his rehabilitation and reintegration as much as the educability of a youthful offender.

When the sentence imposed by the trial judge is measured by the other criteria in Article 894.1 it appears to be clearly excessive. According to the record, defendant had no previous criminal convictions or history of criminal proclivity. Thus, there was no basis for finding an undue risk that during a period of suspended sentence or probation the defendant would commit another crime or that defendant was in need of a custodial environment. See Article 894.1(A)(1) and (2). In addition the lack of a criminal record is expressly recognized as one of the mitigating factors that a judge should accord weight in determining suspension of sentence or probation. See Article 894.1(B)(7). Finally, given the plight of Clark’s family, his lengthy imprisonment will entail excessive hardship to his dependents. See Article 894.1(B)(11).

In light of the recent legislative determination that a year in jail is the maximum sentence that may be imposed for livestock theft and in view of the personal history of the defendant, we conclude that any incarceration for more than one year would be excessive for the crime in this case, which occurred just nine days before the effective date of the legislature’s moderation of the penalty. Furthermore, whether the defendant should receive a suspended sentence or probation must be re-determined on remand in light of Code of Criminal Procedure Article 894.1 and this opinion.

For the reasons assigned, the sentence of the trial court is vacated and this case is remanded for resentencing in a manner not inconsistent with this opinion.

SENTENCE VACATED. REMANDED.

LEMMON, J., concurs.

WATSON, J., concurs in part and dissents in part for reasons assigned.

BLANCHE, J., dissents, being of the opinion that the sentence is not excessive.

MARCUS, J., dissents and assigns reasons.

WATSON, Justice,

concurring in part and dissenting in part.

I agree with the majority that this case should be remanded for a further articulation under the guidelines of Art. 894.1; however, I do not agree with the holding that the sentence of thirty months at hard labor is clearly excessive.

Therefore, I respectfully concur in part and dissent in part.

MARCUS, Justice

(dissenting).

This court recently held that where the crime of theft of livestock was committed prior to the effective date of the amendment which greatly reduced the penalty for said crime, the preamendment penalty provision would apply to defendant; however, the trial judge should consider the amendment in imposing sentence. State v. Wright, 384 So.2d 339 (La.1980); State v. Doxey, 384 So.2d 402 (La.1980). In the instant case, the trial judge failed to consider the amendment reducing the penalty for theft of livestock and accordingly failed to follow proper sentencing guidelines. Although I agree with the majority’s conclusion that the sentence is excessive and that the sentence should be vacated and the case remanded for resentencing, I dissent because the majority has concluded that a sentence of more than one year (which happens to be the maximum sentence under the amendment) would be excessive. The law in this state is that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Wright, supra. An amendment reducing the penalty for a crime is merely a factor to be considered by the trial judge upon imposing sentence.

      . This rule is not followed in all jurisdictions. See, e. g., Belt v. Turner, 25 Utah 2d 380, 479 P.2d 791, aff'd on rehearing, 25 Utah 2d 380, 483 P.2d 425; In re Estrada, 63 Cal.2d 740, 408 P.2d 948, 48 Cal.Rptr. 172 (1965); People v. Oliver, 1 N.Y.2d 152, 134 N.E.2d 197, 151 N.Y.S.2d 367 (1956); see also, Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 131-139. Of mitigatory changes in punishment it has been observed that inherent in the change is a legislative determination that the former penalty provision was inappropriate. Comment, supra, at 138. Moreover, it has been held that the inevitable inference to be drawn from such a change in penalties is that the legislative must have intended that the new statute imposing the lighter penalty apply to every case to which it could constitutionally apply. In re Estrada, supra, 408 P.2d at 951. To hold otherwise would be to hold that the legislature was motivated only by an illegitimate desire for vengeance, according to the highest courts of California and New York. They reason that the mitigation of the penalty represents a legislative judgment that the lesser penalty is sufficient to meet the legitimate ends of the criminal law. In re Estrada, supra; People v. Oliver, supra.

      The fact that a general savings clause similar to our La.R.S. 24:171 exists is not necessarily an obstacle to application of the lesser penalty provision. General savings statutes were addressed to the problem of “technical” abatement. Under the common law doctrine of abatement a repeal of a criminal statute followed by a re-enactment with different penalties precluded prosecution under the repealed statute, and prosecution under the re-enacted statute was not possible because it was not in effect at the time of the crime. See Hamm v. City of Rick Hill, 379 U.S. 306, 314, 85 S.Ct. 384, 390, 13 L.Ed.2d 300, 306 (1964); Comment, supra, 123-27. See also State v. Henderson, 13 La.Ann. 489 (1858) (no savings clause; conviction reversed); State v. King, 12 La.Ann. 593 (1857) (verbatim re-enactment without savings clause, conviction reversed). It was to do away with these so-called “legislative pardons” that general savings statutes were passed. See State v. Bowie, 221 La. 41, 58 So. 415 (1952); Comment, supra, at 127. Savings statutes “were not designed to negate the intention of the legislature when it mitigates the punishment for an act, and it is evident that the current use of the general savings statutes by the courts abuses that intent.” Comment, supra, at 138-139. Thus, the California Supreme Court in Estrada, looking to legislative intent, held that California’s general savings clause was not applicable, and applied the mitigatory penalty provision. The court in Estrada also held a provision against retroactivity, similar to our La.R.S. 1:3, to be only a rule of construction that could not negate more probative indi-cia of legislative intent. 408 P.2d at 952.


author: WATSON, Justice. DENNIS, Justice,

text:
    TIBER PETROLEUM, INC. and B. P. Louisiana, Inc. v. The PARISH OF JEFFERSON, Joseph Yenni, President, Jefferson Parish Council, Robert Evans, Chairman, and the Jefferson Parish Department of Inspection and Code Enforcement, Rene Chehardy, Director.
    No. 80-CA-2021.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      Marion F. Edwards, David C. Loeb, Edwards, Cullen & Loeb, Gretna, for plaintiffs-appellees.
    Hubert Vondenstein, Ronald J. Gillen, Parish Attys., for defendants-appellants.
   WATSON, Justice.

This is a zoning dispute in which the defendant Parish of Jefferson has appealed from a trial court judgment declaring Ordinance No. 14068 unconstitutional and granting plaintiffs a writ of mandamus to compel issuance of a building permit for the construction of a crude oil processing unit.

Plaintiff, Tiber Petroleum, Inc., leases from plaintiff, B. P. La., Inc., property known as the NOLA Terminal in Harvey, Jefferson Parish, Louisiana.» The leased property is located in an M-2, Heavy Industrial District. According to Jefferson Parish Ordinance No. 14068, the permitted uses in an M-2 area include “Petroleum products, refining or wholesale storage of petroleum Provided an ordinance of no objection is approved by the Jefferson Parish Council.” (Tr. 10) The governing body of the Parish, the Jefferson Parish Council, refused to issue an ordinance of no objection to the construction of a crude oil processing unit by Tiber on the land leased from B. P. Plaintiffs filed this suit, contending that the failure to adopt the ordinance of no objection was unreasonable, arbitrary and capricious. It was argued that Ordinance No. 14068, which amended the Comprehensive Zoning Ordinance to require that an ordinance of no objection be obtained prior to storage or refining of petroleum products in an M-2 area, is unconstitutional for lack of objective standards.

This court has original appellate jurisdiction because the ordinance was declared unconstitutional. Article 5, Section 5(D)(1), Louisiana Constitution of 1974. The issue on appeal is whether the ordinance is constitutional.

Article 6, Section 17 of the Louisiana Constitution of 1974 deals with “Land Use; Zoning; Historic Preservation” and states:

“Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained.”

No uniform procedures have been established by the Legislature for zoning by parish governments since adoption of the 1974 Constitution. The Jefferson Parish Council acted under its prior enabling legislation, Act 537 of 1954.

The intention behind Ordinance No. 14068 is not reflected in the minutes of its adoption. The Parish contends that it was designed to safeguard the public against unsafe refineries. That goal ranks high on the scale of zoning objectives. A legislative body has greater discretion in zoning to protect the public safety than it does in pursuing less compelling purposes. However, this ordinance provides an exception for a particular category of heavy industry for no apparent reason. It is devoid of any guidelines for its application. No policy is stated in the enactment. The Council did not even indicate a minimal standard: that an ordinance of no objection would be approved if the proposed use did not present a hazard to the public. In the absence of any criteria for one petroleum facility to be approved and another disapproved, the ordinance is unconstitutional. Summerell v. Phillips, 282 So.2d 450 (La., 1973).

For the foregoing reasons, the judgment of the trial court herein is affirmed.

AFFIRMED.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Many courts have held that where the legislative authority reserves itself the power to issue or withhold permits, it need not articulate the standards which will guide or limit the exercise of such a power. Zellinger v. CRC Development Corp., 281 Md. 614, 380 A.2d 1064 (1977); Lemp v. Town Board of Islip, 90 Misc.2d 360, 394 N.Y.S.2d 517 (1977); American Nat. Bank & Trust Co. v. Rockford, 55 Ill.App.3d 806, 13 Ill.Dec. 620, 371 N.E.2d 337 (1977); Bollinger v. Board of Supervisors, 227 S.E.2d 682 (Va.1976); Marquis v. Waterloo, 210 Iowa 439, 228 N.W. 870 (1930); 3 R. Anderson, American Law of Zoning § 19.10 (2d ed. 1977). This precept provides the wiser course in situations such as presented in this case where the parish council has reserved to itself the power to decide whether to permit a potentially dangerous activity in a highly populous metropolitan area.

Furthermore, even if the ordinance is deemed to be unconstitutional, it should at lease be accorded respect as an expression of the legislative intent to repeal the former ordinance which would allow unrestricted usage of property for petroleum refineries.


author: PER CURIAM.

text:
    STATE of Louisiana v. Albert BERNARD.
    No. 66551.
    Supreme Court of Louisiana.
    Dec. 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Fred Harper, J. Bassett, Louise S. Korns, Lance Africk, Asst. Dist. Attys., for plaintiff-appellee.
    Orleans Indigent Defender Program, Thomas Ford, Clyde Merritt, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant Albert Bernard was charged by bill of information with simple burglary, a violation of La.R.S. 14:62. On January 24, 1979, he was tried before a six person jury and convicted by a vote of five to one. Thereafter, defendant was sentenced as a second felony offender under the provisions of La.R.S. 15:529.1 to serve six years at hard labor. On appeal he urges six assignments of error, one of which relates to the less than unanimous verdict.

Supplemental Assignment of Error No. 4

By this assignment defendant contends that the 5-1 verdict returned in this case was unlawful.

In Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), the Supreme Court concluded that conviction by only five members of a six-member jury raised such doubts as to the jury’s representation of the true sense of the community as to violate the Sixth Amendment guarantee of trial by jury. In Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980), the Court determined that the rule of Burch was fundamental to the integrity of the fact-finding process, and thus required retroactive application, at least to cases still pending on direct review. (See, Powell, J., concurring opinion).

Accordingly, defendant’s conviction and sentence are reversed, and the case is remanded for further proceedings.


text:
    Ethel Bergeron PONS, wife of/and Francis Anthony Pons, Sr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Sentry Insurance Company, Loretta Tarto, wife of/and Jack Tarto, In Solido.
    No. 80-C-1982.
    Supreme Court of Louisiana.
    Jan. 6, 1981.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, New Orleans by Harvey L. Strayhan, New Orleans, for Loretta Tarto, wife of/and Jack Tarto.
   MOTION TO DISMISS WRIT OF CERTIORARI AND REVIEW

Now into Court, through undersigned counsel, come Loretta Tarto, wife of/and Jack Tarto, who move the Court to dismiss their writ of certiorari and review in the above entitled and numbered cause of action due to the fact the judgment rendered in favor of Sentry Insurance Company, which is the subject of the above entitled and numbered writ of certiorari and review, has been compromised and settled. Therefore, the issues presented in movers’ application for writ of certiorari and review have been rendered moot by said compromise settlement and the writ should, therefore, be dismissed as of this time.

Considering the above,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the writ of certiorari and review granted by the Supreme Court for the State of Louisiana in the above entitled and numbered cause of action is hereby dismissed.


author: SARTAIN, Judge.

text:
    Edward J. LaGRAIZE, Jr. v. Artis BICKHAM, Lonnie Bickham, State Farm Mutual Automobile Insurance Company, Interstate Fire & Casualty Company, American Southern Insurance Company and Commercial Union Insurance Company.
    No. 11004.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    On Rehearing Nov. 25, 1980.
    Rehearing Denied Jan. 19, 1981.

      Lambert, Nowalsky & Lambert, John D. Lambert, Jr., New Orleans, for plaintiff-appellant.
    David M. Packard, Metairie, for defendant-appellee, Continental Insurance Co.
    Bienvenu, Foster, Ryan & O’Bannon, Leonard A. Young, New Orleans, for defendants-appellees, Lonnie Bickham and State Farm Mutual Automobile Insurance Co.

      Drury & Lozes, James H. Drury, New Orleans, for defendants-appellees, Carlo Ditta, Inc. and Commercial Union Insurance Co.
    Weigand & Siegrist, Joseph J. Weigand, Jr., Houma, for defendant-appellee, Argonaut Southwest Insurance Co.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   SARTAIN, Judge.

. In this case, Edward J. LaGraize, Jr. appeals the inadequacy of a civil jury award for personal injuries and special damages. We affirm.

LaGraize allegedly received serious bodily injuries on January 6, 1975, when the vehicle he was driving was hit from the rear by a truck driven by Artis Bickham and owned by his brother, Lonnie Bickham. He named as defendants both Bickhams and State Farm Mutual Automobile Insurance Company, the liability insurer of the Bickham truck; Carlo Ditta, Inc., the Bickhams’ employer and Commercial Union Insurance Company, the liability insurer of Ditta. At the time of the accident LaGraize was driving a vehicle owned by his employer, New Orleans Armature Works. He joined as an additional defendant his employer’s uninsured motorist carrier, Argonaut Southwest Insurance Company. Argonaut also intervened to recover the amounts it had paid under a workmen’s compensation insurance policy under the provisions of R.S. 23:1103. The personal injury claim was tried to the jury and the workmen’s compensation carrier’s intervention was tried to the trial judge.

The jury returned a general verdict in favor of plaintiff in the amount of $15,-000.00. Judgment was entered in this amount in favor of the plaintiff and against the aforementioned defendants on the main demand. State Farm’s liability was limited to $4,400.00, the balance remaining under its liability coverage. The trial judge also entered judgment in favor of the workmen’s compensation intervenor, Argonaut, in the amount of $235.00 for medical payments paid on behalf of plaintiff and for such other amounts as may be paid to the plaintiff in the future under the latter’s workmen’s compensation suit. Plaintiff’s motions for an additur and a new trial were overruled. This appeal followed.

Intermediate appellate review in quantum cases is now governed by the recent case of Reck v. Stevens, 373 So.2d 498 (La.1979). In Reck the court reemphasized previous decisions interpreting C.C. art. 1934(3) and the “much discretion” accorded the trier of fact under the article. Before an award may be considered as either excessive or inadequate, there must be an analysis of all of the facts and circumstances peculiar to the case at hand, including the individual claimant, and an initial determination based on such an analysis that there has been a clear abuse of the “much discretion” by the trier of fact. Only then may previous awards be resorted to as an aid in determining an appropriate award in the case under review. The quantum then may be reduced (or raised) to the highest (or the lowest) amount that is reasonably within the discretion of the trial court (judge or jury). Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). With these principles in mind, we look to the pertinent facts and circumstances in the instant matter.

On the day of the accident (January 6, 1975) plaintiff was seen by Dr. Truman Kerr, an orthopedic specialist. X-rays at the time of the upper and lower regions of the back evidenced no abnormalities. Plaintiff was given an injection of tetanus toxoid for an abrasion of the arm, a muscle relaxant, and Tylenol for his back complaints. Besides the abrasions of the left arm, Dr. Kerr was of the opinion that plaintiff sustained a muscle strain of the lumbo-sacral region. Dr. Kerr continued to treat plaintiff for a lumbosacral strain until March 24,1975, at which time he discharged him. In the meantime, plaintiff complained of pain in the neck and arm and after prolonged sitting of pain in the back. Dr. Kerr attributed these latter complaints to an arthritic condition which was evidenced by the previous X-rays and prescribed an anti-inflammatory medicine known as Motrin. On a following visit he changed the prescription to another arthritic medicine known as Indocin. When this latter medicine proved ineffective, he had plaintiff return to Motrin. Dr. Kerr continued to treat plaintiff for an arthritic condition from September 11, 1975 until June 17, 1977. On a substantial number of these visits, plaintiffs major complaint was of pain in the cervical region, although admittedly on some of these occasions he did complain of low back pain. It also appeared that the Motrin prescription gave him some relief and on at least five visits to Dr. Kerr he expressed no complaints concerning his lower back. Repeated orthopedic examinations on these occasions revealed no disc-related problems. However, on the visit of June 17, 1977 plaintiff complained of pain in the left arm and buttock. This buttock complaint was the first indication to Dr. Kerr of a possible disc disorder, albeit subjective. Dr. Kerr then recommended that plaintiff see Dr. J. Carlos Pisarello, a neurosurgeon.

Conservative treatment administered by Dr. Pisarello was unsuccessful. Following a myelogram which proved positive, he performed a laminectomy on plaintiff at the L-4 level. This operation was performed on August 9, 1977. He last examined plaintiff on February 13, 1978, and considered the operation successful.

Both Dr. Kerr and Dr. Pisarello were of the opinion that the accident of January 6, 1975 resulted in disc injury.

There is, however, a serious factual dispute relative to the issue of causation. Neither of the above specialists were informed, or at least they made no note of it, of an incident that occurred in early February, 1977, when plaintiff experienced severe pain in his right arm and leg as he applied the brakes on his vehicle. He was in such discomfort that he returned home and did not go to work for the remainder of the day. Plaintiff stated that he called Dr. Kerr immediately for an appointment. Dr. Kerr’s notes of that visit (February 1,1977) and of the next visit (April 5,1977) make no reference to the incident. While Dr. Kerr’s notes of the February 1 visit indicate some back pain, the notes refer to “some tingling sensation in the arm and this lasted two days” and has presented “no problems since”. Dr. Kerr’s notes of the April 5 visit indicated some low back pain but nothing involving leg or buttock discomfort. X-rays taken in this later visit evidenced only the previously noted arthritic condition. Neurological examination by Dr. Kerr on both of these visits were normal.

On March 29, 1977 plaintiff, on his counsel’s request, was seen by Dr. E. J. Dabez-ies, an orthopedic surgeon. This doctor, however, was called as a witness for the defendants. His testimony is to the effect that he could not associate the accident in January, 1975 to the herniated disc in June 1977. He stated in fact “to weigh this properly I think that the time interval is definitely a little bit too long.” His conclusion was that the accident aggravated a previously existing dormant arthritic condition.

Mr. LaGraize, who was 57 years of age at the time of the accident, testified that he had experienced no back trouble prior to the accident. He was employed as a supervisor and was then earning a salary of approximately $15,000.00 per year. His employer continued his salary, including the week he was off work following the accident and during the periods of hospitalization in 1977. At the time of the trial plaintiff was earning a salary- of $19,700.00 per year. While his supervisory position did not require it, plaintiff continued to assist in the moving of heavy machinery. He acknowledged that he performed the same duties for his employer from the date of the accident until the date of his surgery. However, he strongly contends that he was never relatively free of back pain throughout this period of time and still had similar pain and discomfort as of the date of the trial on the merits, March 5, 1979. His testimony relative to back pain is corroborated by that of his wife and a co-worker.

Germane to the issue of quantum, plaintiff introduced medical bills totaling the sum of $6,146.23. As stated above, the jury rendered a general verdict in the amount of $15,000.00.

Plaintiff contends that the award is grossly inadequate for two reasons: (1) the amount of medical expenses, if deducted, allows only approximately $9,000.00 for pain and suffering and residual disability; and (2) the jury award may be reduced even further by virtue of the judgment in favor of the workmen’s compensation insurer-in-tervenor. We shall address these contentions in reverse order.

R.S. 23:1103 provides:

“In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.
“No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him. As amended Acts 1958, No. 109, § 1.”

With respect to the apportionment of the jury award as between plaintiff and Argonaut, it may be helpful to particularize certain facts relative thereto. Prior to the trial on the merits in the instant matter, plaintiff was successful in his workmen’s compensation suit against Argonaut. In that litigation he was awarded judgment (under the old Act) at the maximum rate of $65.00 per week for a total of 500 weeks and medical expenses of $5,882.08. This matter is now before this court on a suspen-sive appeal. The only medical payments made by Argonaut in the present tort suit were in the sum of $235.50 and judgment was awarded to it against plaintiff’s award in this amount and for such other sums as Argonaut may be cast in the workmen’s compensation suit.

Plaintiff contends that inasmuch as he has continued to receive his salary from his employer he was precluded from claiming loss of wages in the present litigation. However, he now argues that it was error for the trial judge to refuse to permit him to acquaint the jury with the fact that any award it made to him would be subject to and burdened with a possible claim by the workmen’s compensation carrier. We find this contention to be without merit and concur in the ruling of the trial judge. What plaintiff is in essence urging is that the jury might have been influenced thereby to award him a larger sum for pain and suffering.

The claim of plaintiff in tort for whatever items he is permitted in law to urge is one matter. The rights to reimbursement by either his employer or the latter’s insurer is another matter. To accede to plaintiff’s wishes in the instant case, as it relates to these rights, would tend to submit the tort-feasor to double exposure. The fact remains that for whatever reason he may have had, plaintiff chose not to make loss of wages an element of damages in his tort claim. Having made this decision he is bound by it.

The second contention of error, namely the inadequacy of the jury award when viewed in the light of extensive medical expenses, directs itself to the question of sufficiency of the general verdict.

As in all jury verdicts neither the presiding judge nor the appellate court has the benefit of findings of fact. If the jury concluded that the herniated intervertebral disc suffered by the plaintiff in June, 1977 resulted from the trauma in January, 1975, the total sum of $6,000.00 for medical expenses is attributable to the accident. If instead the jury believed plaintiff sustained only a lumbosacral strain in January, 1975, which aggravated a preexisting arthritic condition, only a small portion of the medical expenses would be related to the accident. If the first determination were made by the jury we would frankly conclude the award to be inadequate. If the second conclusion was reached by the jury, we would deem the award to be well within its discretion. There is substantial conflicting credible evidence, which we have noted above, in support of either conclusion. It is for this reason that we find no manifest error in the result reached by the jury. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); Reck v. Stevens, above.

This brings us to the final issue. Shortly after the judgment was signed, the defendants on April 5, 1979 deposited the sum of $18,788.14 in the registry of the court. This sum purportedly represented the face amount of the jury award, court costs, and accrued interest. Subsequently (June 8, 1979) the defendants deposited the additional sum of $576.00, representing jury fees. The court order permitting the deposit, in pertinent part, provided that the sum “shall rest in the Registry of the Court for the account of Edward J. LaGraize, Jr., and Argonaut Southwest Insurance Company, as their interests may appear, to be withdrawn by the said plaintiff and intervenor at all (sic) and without prejudice upon their filing of appropriate motions and the giving of proper receipt therefor.”

Plaintiff filed two pleadings directed to the deposit. The first pleading was an objection on the grounds that C.C.P. art. 4652 required that defendants-insurers deposit the full limits of their respective policy coverage. The second pleading, in the alternative, was a request to withdraw the funds without prejudice under the authority of State Farm Mutual Automobile Insurance Co. v. Ray, 161 So.2d 148 (La.App. 3rd Cir. 1964); writ refused, May 4, 1964.

C.C.P. art. 4652 relates to concur-sus proceedings and it does require that before an insurance company can provoke the same it must admit liability and deposit the full amount of its policy limits. However, we do not find the article applicable under the present circumstances because this is not a concursas matter. The question is whether any defendant, once cast in judgment, may deposit in the registry of the court the full amount of the judgment, together with accrued costs and interest and thereby be relieved of added costs and interest in the event of an appeal by the plaintiff.

Plaintiff contends that there is no authority for such a procedure. This we concede but we know of no statute or codal provision that prohibits such a procedure and sanction the same under the following conditions: There first must be a tender to and refusal to accept by the judgment creditor. The tender and/or the deposit must be for the full amount of the judgment, including costs and interest. It must be unconditional and constitute a complete waiver of any future defense as to liability on the part of the judgment debtor. Acceptance of the tender and/or withdrawal of the funds by the judgment creditor(s) is without prejudice to any of its (their) rights to appeal as to quantum. In the event of an increase in quantum on appeal, the judgment debtor is liable for all additional costs together with legal interest on the amount of the increase from date of judicial demand until paid. Under the above, the advantages to both the judgment creditor and debtor are apparent. The former has the benefit of his money and the latter is relieved of certain additional costs and neither is harmed.

The evidence in the trial court on the appropriateness of the deposit procedure invoked by the defendants and plaintiff’s request to withdraw the funds was not transcribed. We can only assume that the same objections raised in the briefs submitted to us and in oral argument before us were also presented to the trial judge.

Plaintiff contends that neither the judgment in response to the jury verdict nor the order relating to the deposit should contain any reference to Argonaut for the primary reason that Argonaut has taken a suspensive appeal in the compensation suit and the judgment rendered therein is not final. He also contends that just the offering of the compensation judgment in the record is insufficient to prove intervenor’s claim. Argonaut responds that when plaintiff’s request to withdraw the deposited funds without restriction as to its (Argonaut’s) rights was denied by the trial judge, plaintiff declined to take the money.

We think that plaintiff has misconstrued the purpose and intent of R.S. 23:1103, above.

The rights accorded an intervening compensation insurer under the statute and the jurisprudence interpreting the same are both retrospective and prospective. Such rights are retrospective in the sense that at the time of the finality of the tort judgment, the intervenor is entitled to immediate reimbursement of all sums actually paid as compensation benefits. In the instant case that is the $235.00, stipulated as medical expenses. The rights are prospective in the sense that the intervenor is entitled to a credit against future payments of compensation benefits, i. e., pro tanto release, until the amounts of such compensation benefits equal the balance remaining from the tort judgment. In the instant case, the interve-nor has paid no weekly benefits and no other medical and is not required to do so until those amounts equal the presently remaining balance in the tort fund. The fact that the compensation suit is not final is of no consequence at this juncture. The actual accounting as between plaintiff and Argonaut vis a vis the tort suit and the compensation suit of necessity must await the final outcome of the latter litigation. In the meantime, the only claim Argonaut has to the tort award is the sum of $235.00. Billedeaux v. Adams, 360 So.2d 637 (La. App. 3rd Cir. 1978); Lachney v. Motor Parts & Bearing Supply, 357 So.2d 1277 (La.App. 3rd Cir. 1978); and Billeaud v. United States Fidelity & Guar. Co., 349 So.2d 1379 (La.App. 3rd Cir. 1977). See also Malone & Johnson, Workers’ Compensation, 14 Louisiana Civil Law Treatise, Sec. 370.

Returning to the question of the deposit, we find the same to be without legal effect for two reasons. First, there is no showing whatsoever that any tender was made to the plaintiff prior to the deposit. Second, the deposit itself was inadequate. It did not initially include $576.00 jury cost. When this sum was added to the deposit on June 6, 1979, additional interest for the intervening month and a day was not included.

For the above reasons the judgment of the district court is affirmed. All costs relating to this appeal are to be borne by appellant. All other costs are assessed against defendants-appellees.

AFFIRMED.

ON REHEARING

We granted a general rehearing in this cause to reconsider our conclusion relative to quantum and in particular the claim of the intervenor (workers’ compensation insurer) in light of the recent decision of the Supreme Court in Fontenot v. Hanover Ins. Co., 385 So.2d 238 (La.1980).

We reaffirm our determination as to quantum for the reasons stated in the original opinion. In short, we concluded that the jury’s general award of $15,0,00.00 was based on its determination that plaintiff sustained a lumbosacral strain which aggravated a preexisting arthritic condition and not the herniated disc with attending medical expenses as plaintiff had urged. We found no manifest error and that the award itself was within the jury’s discretion.

The workers’ comensation suit referred to in footnote 1 of our original opinion has now been heard and affirmed by another panel of this court. It is cited at 387 So.2d 687 (La.App. 4th Cir. 1980) and as of this writing writs are pending before the Supreme Court. In the compensation suit judgment in favor of plaintiff was based on the determination that he sustained a lumbar disc herniation and incurred medical expenses therefor in the amount of $5,882.08, a conclusion rejected by the jury in the instant (tort) action.

In Fontenot v. Hanover Ins. Co., above, the Supreme Court held that an intervening workers’ compensation insurer could not claim reimbursement for medical expenses paid an injured employee under the act where that employee was unsuccessful in recovering these expenses from the third party tortfeasor. The court reasoned: “The underlying policy of the workers’ compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee’s double recovery for his injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tortfeasor.” 385 So.2d 238, 239.

The judgment in the instant case awarded the intervening workers’ compensation insurer the sum of $235.00 as reimbursement for medical expenses and “for the amounts awarded against it” (Argonaut) in the compensation suit. This latter sum, as noted above, was in the amount of $5,882.08. Applying Fontenot to the facts in the cause now before us, we hold that intervenor, Argonaut Southwest Insurance Company, is only entitled to receive out of plaintiff’s award as reimbursement for medical expenses the sum of $235.00. In-tervenor is not entitled to a credit of $5,882.08 for the medical expenses denoted in the compensation suit for the reason that plaintiff’s claim for these expenses was rejected by the jury.

Intervenor has paid plaintiff no weekly compensation benefits as he has continued to work for and receive his salary from his employer. The judgment in the compensation suit, however, in pertinent part awarded “plaintiff 500 weeks of workman’s compensation at the rate of $65.00 per week beginning January 13, 1975. Said defendant is to receive one week’s credit of compensation paid for each week’s wages paid to plaintiff in lieu of compensation.”

Plaintiff claims that under the wording of the compensation judgment Argonaut is now entitled to either insist on reimbursement of $65.00 per week since January 13, 1975 which will consume his entire judgment or plaintiff must wait a commensurate number of weeks before he is entitled to weekly benefits in the event he seeks the same. Argonaut on the other hand takes the position that plaintiff has misconstrued the statute and jurisprudence noted in our original opinion. It states that when the time comes that plaintiff is entitled to weekly compensation benefits it is entitled to a credit equal to the balance remaining in the tort fund before it is obligated to pay the same. We think Fontenot has rendered both of these contentions moot.

While Fontenot admittedly dealt with reimbursement for medical expenses, its rationale clearly contemplates reimbursement for weekly compensation benefits. To paraphrase (385 So.2d at 239), the compensation statute “does not require an employee to reimburse out of his award for pain and suffering [the weekly benefits for wage-replacement] which [wage-replacement] he failed to recover from a third party tort-feasor.” Accordingly, Argonaut’s right as an intervening compensation insurer is limited to reimbursement for expended medical expenses in the sum of $235.00, and the judgment of the district court will be amended to reflect the same.

With respect to the funds on deposit the defendants again urge that they be relieved of the additional costs and legal interest incurred after the deposit. In essence, they contend that the dispute between plaintiff and intervenor concerning these latter parties’ rights should not redound to their (defendants’) detriment. It is also conceded that the jury cost ($576.00) was not reflected in the clerk’s cost sheet and when it was called to defendants’ attention the deposit was immediately supplemented. We can sympathize with defendants’ argument but the fact remains that total tender was not made. While the dispute between plaintiff and intervenor did place defendants in a difficult position, they must take the proceedings as they find them and where, as here, the dispute is not an arbitrary or capricious one, tender and release isn’t possible. We hold the registry-deposit to be invalid. The funds on deposit now should be immediately released to the defendants-depositors. The plaintiff is entitled to collect on his judgment when the same becomes final as though the deposit was never made.

For these reasons the judgment of the district court relating to Argonaut’s intervention is amended to read as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Argonaut Southwest Insurance Company’s rights under this judgment and against the named defendants is limited to the sum of $235.00 and judgment is therefore rendered in favor of Argonaut Southwest Insurance Company in this amount and against defendants, Artis Bickham, Lonnie Bickham, State Farm Mutual Insurance Company, Carlo Ditta, Inc., Commercial Union Insurance Company, and Edward J. LaGraize, Jr., together with legal interest thereon until paid.”

The judgment of the district court is further amended to declare the registry-deposit made by defendants on April 5, 1979 and June 8, 1979 to be void and without legal effect.

Accordingly, for reasons stated in our original decree the judgment of the district court is amended as hereinabove provided and, as amended, is affirmed. The cost of this appeal is to be divided equally between plaintiff and intervenor.

AMENDED AND AFFIRMED.

      . Placed in the record was a copy of the judgment rendered in suit No. 77-10121 from the Civil District Court for the Parish of Orleans, Division I, entitled Edward J. LaGraize, Jr. v. New Orleans Armature Works, a Division of Electrical Industries, Inc. and Argonaut Southwest Insurance Company.

      . Ibid. The actual wording of the judgment in the workmen’s compensation suit is:
      “Said defendant is to receive one week’s credit of compensation paid for each week’s wages paid to plaintiff in lieu of compensation.”

      . Cf. C.C. arts. 2167 and 2168.

      . For example: January 13, 1975 to December 13, 1980 = 308 weeks X $65.00 = $20,020.00.


author: BARRY, Judge. PER CURIAM.

text:
    Beulah Strother KENNEDY v. Thomas J. KENNEDY.
    No. 11222.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 12, 1980.
    Rehearing Denied Nov. 17, 1980.
    Writ Refused Jan. 16, 1981.

      Calvin J. Laiche, Westwego, for plaintiff-appellee.
    Parlongue & Riegel, Phillip R. Riegel, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   BARRY, Judge.

This matter began with a petition for partition of community property. The spouses were legally separated in July, 1968, which terminated the community, and divorced in January, 1971. The family home was not sold until November, 1977, and sale proceeds were deposited in the registry of the court pending the partition. Each party made various claims against the community for reimbursement. The trial judge rendered judgment (twice amended) granting claims to each separate estate for reimbursement against the community funds on deposit, as follows:

To Mr. Kennedy:
Attorney’s fees $1,100.00
Premarital investment in home 2,000.00
Funds from boat sale in home 1,200.00
Recovery on auto insurance 200.00
Mortgage payments and repairs 1,594.31
TOTAL $6,094.31
To Mrs. Kennedy:
Mortgage payments $12,913.95
House repairs 4,118.68
TOTAL $17,032.63

Defendant husband raises four issues on appeal.

(1) Should the full amount of mortgage payments on the family home be reimbursed to a spouse occupying the home following dissolution of the community?
(2) and (3) Should repairs to the family home be reimbursed to a spouse occupying the home following dissolution of the community? Were the amounts for repairs reasonable?
(4) What equity, if any, does the community of acquets and gains have in a public pension fund where payments are made with community assets?

I.

The primary community asset was the matrimonial domicile which the wife occupied following the legal separation until its sale in November, 1977. Following the legal separation Mr. Kennedy made monthly payments for a brief time. Thereafter Mrs. Kennedy made the mortgage payments during her occupancy of approximately eight years.

The District Court awarded $12,913.95 which represents full reimbursement to Mrs. Kennedy for every mortgage payment she made following dissolution of the community while she occupied the former marital domicile up to the time of its sale. The trial judge cited deMonte v. McManus, 294 So.2d 605 (La.App. 4th Cir., 1974), as authority to award full reimbursement. In McManus, the community home was occupied at the time of trial by one of the spouses who was making monthly mortgage payments. The court deferred a determination of the amount due as reimbursement until mortgage payments ended when the property was sold. Judge Boutall adopted the language in Butler v. Butler, 228 So.2d 339 (La.App. 1st Cir., 1969) (similarly deferring judgment on amount owed pending sale and final payments) at page 343:

“’He (referring to Mr. Butler) is entitled to credit for whatever he pays out in the way of payments and maintenance, ...” (emphasis added).

Admittedly, McManus and Butler do not specify the dollar amount of reimbursement to a spouse who has made monthly payments on behalf of property held jointly. But the language clearly indicates that full reimbursement would be made from community funds to the separate estate of a spouse who makes the mortgage payments.

Once the community of acquets and gains was terminated by the legal separation, and the husband and wife became co-owners, each had an obligation to maintain and preserve the property. Further, we have recognized that a co-owner has the right to use the common property without the obligation to pay rent. Arcemont v. Arcemont, 162 So.2d 813 (La.App. 4th Cir., 1964).

The husband was cognizant a mortgage existed on the community property. He made some payments and was awarded reimbursement. Unless timely payments continued then both spouses as co-owners would have been subject to financial loss by executory process. Monthly mortgage payments are certainly necessary expenditures when considering the preservation of the property. Either spouse herein, or any co-owner of realty, who is dissatisfied with the arrangement by which each has the right to use the common property without payment of rent is entitled to a partition. C.C.Art. 1289; Arcemont, supra; Loret v. Fugler, 71 So.2d 384 (La.App. 1st Cir., 1954).

We therefore conclude that the decision of the District Court was correct in awarding appellee wife full reimbursement for mortgage payments made after dissolution of the community of acquets and gains even though the wife occupied the property.

We do have difficulty in reconciling how the trial judge awarded reimbursement of $12,913.95. Our review of the voluminous exhibits (checks, temporary receipts, et cet-era) in evidence provides the following breakdown:

Checks payable to homestead $ 8,244.72
Temporary homestead payment receipts 1,570.37
Oral testimony - missing checks 2,026.52
Cash payments - temporary receipts unavailable 414.28
$12,255.89

We cannot explain the variance between our total and the calculations of the District Court. But obviously the trial judge was satisfied with the testimony of the appellee and intended to give her full credit for all payments. There is no evidence that the appellant made payments during this time and the wife’s testimony that she made all payments is reasonable. We are limited to the record which reflects reimbursement for mortgage payments should be reduced to $12,255.89.

II. and III.

Mr. Kennedy challenges repairs of $4,118.68 made by his former wife during her occupancy. Appellant’s opposition is grounded on the same argument set forth in his opposition to the mortgage payment reimbursement. He further argues that because the repairs were incurred subsequent to the dissolution of the community that they must either enhance the property value or were necessary for maintenance and were reasonable.

Apparently, the bulk of the repairs were made during the months preceding sale of the property. The right of the joint owner in possession to be reimbursed necessary expenses for the preservation of the community property is well settled. Ar-cemont, supra.

The trial judge heard all of the evidence pertaining to the necessity and reasonableness of the various repairs and he concluded that Mrs. Kennedy is entitled to full reimbursement. There is no convincing evidence the work performed was unnecessary or unreasonable. We find no abuse in the reimbursement to Mrs. Kennedy of $4,118.68 for the repairs.

IV.

The last issue before us concerns the divorced wife’s interest in her former husband’s pension rights which accrued through his employment during the existence of the community.

The trial court held that the wife’s interest in the husband’s pension rights was limited to “one-half the value of any benefits which may be due to Mr. Kennedy in proportion to that amount of benefits which may become due and which are attributable to the contributions made by the employer or employee-husband during the community, said benefits being as a result of a retirement plan formerly entered into between her former husband and his former employer.”

During the marriage Mr. Kennedy was a member of the Firefighter’s Pension and Relief Fund created by LSA-R.S. 33:2101. He contends that his equity in the plan is his separate property and relies upon LSA-R.S. 33:2120 which provides:

“The right of a person to a pension, an annuity, a retirement allowance, or to the return of contributions; the pension, annuity or retirement allowance itself; any optional benefit or any other right accrued or accruing to any person under the provisions of this Subpart; and the moneys in the various funds created by this Subpart are exempt from any state or municipal tax, all state income tax, and exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as otherwise specifically provided in this Subpart. The fund shall be sacredly held, kept, and secured and distributed for the purpose of pensioning the persons named in this Subpart and for the payment of death benefits and for no other purpose whatsoever.”

A review of the statutes governing the Firefighter’s Pension and Relief Fund leaves the inescapable conclusion that the benefits conferred upon Mr. Kennedy are his separate and paraphernal property. Scott v. Scott, 179 So.2d 656 (La.App. 2nd Cir., 1965 (State Teachers’ Retirement System)); Roberts v. Roberts, 325 So.2d 674 (La.App. 2nd Cir., 1976 (Louisiana State Employees’ Retirement System)). Membership in these plans are necessarily restricted to a specific type of employment. Rights of members in these plans created by statute are exempted from judicial process, are unassignable, and not subject to any other process. LSA-R.S. 42:545.

Payments to Mr. Kennedy’s pension plan were made with community funds and we hold that he is indebted to the community for all of the contributions made during the existence of the community. Scott v. Scott, supra; Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir., 1968); Moore v. Moore, 187 So.2d 145 (La.App. 2nd Cir., 1966), Writ denied, 249 La. 451, 187 So.2d 438 (1966).

This record does not reflect if contributions to the pension plan were made by the employer, but for further clarification, we hold that the husband’s contributions and the matching contributions by his employer, if any, represent an asset acquired during the community. Sims v. Sims, 358 So.2d 919 (La.1978); T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976). Finally, we recognize the wife’s right to claim one-half of the value of the increase to her husband’s separate property if it be proved the increase occurred during the existence of the community. The community interest is not limited to the refund of community funds paid which generally are far less in monetary value than the pension rights acquired as a result of the employment of one spouse of the community. Our courts have uniformly held, except in a few isolated decisions, that at the dissolution of the community, the non-employed spouse is entitled to judgment recognizing that spouse’s interest in proceeds from a retirement annuity, or profit sharing plan or contract, if and when they become payable. The spouse’s interest is recognized as one-half of any payments to be made, insofar as they are attributable to the other spouse’s contributions or employment during the existence of the community. Sims v. Sims, supra; T. L. James & Co., Inc. v. Montgomery, supra; Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956).

The record does not reflect the amount of contributions made to the pension plan during the existence of the community nor are we certain of Mr. Kennedy’s current employment. This matter should be determined by the District Court and benefits, as specified above, calculated and an award made to the former spouse under the guidelines set out in Sims v. Sims, supra.

The District Court judgment is amended to reduce mortgage payments reimbursement to plaintiff-appellee to the amount of $12,255.89, and in all other respects affirmed. This matter is remanded to the District Court for a determination of Mrs. Kennedy’s interest in any annuities, lump sum payments, or any other benefits paid or accrued from the Firefighter’s Pension and Relief Fund to or for her husband, Thomas J. Kennedy. Defendant-appellant to pay all costs of this appeal.

AFFIRMED in part, AMENDED in part, and REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Relator, Thomas J. Kennedy, has applied for a rehearing seeking a clarification relative to the community’s claim for reimbursement of money paid to his Fire Fighter’s Pension and Relief Fund. He contends the part of the decree directing the lower court on remand to follow the guidelines of Sims v. Sims, 358 So.2d 919 (La.1978), in determining the amount of reimbursement owed, contradicts our holding that the pension funds are his separate property.

Our opinion held that under our jurisprudence Mr. Kennedy’s equity in the pension fund is his separate property, citing Scott v. Scott, 179 So.2d 656 (La.App. 2nd Cir. 1965); Roberts v. Roberts, 325 So.2d 674 (La.App. 2nd Cir. 1976). We affirm this conclusion.

However, the community is owed reimbursement for the contributions made to the fund during the marriage plus any increase in value which accrued on Mr. Kennedy’s equity in the pension fund during the existence of the community: one-half of this total value is owed by Mr. Kennedy to Mrs. Kennedy. LSA-C.C. Art. 2408; Blalock v. Blalock, 259 So.2d 367 (La.App. 2nd Cir. 1972).

Though the issue of reimbursement was not before the Second Circuit in either the Scott or Roberts decisions, the Court did recognize, in dicta, the spouse’s right to one-half the value of the increase, i. e., one-half of the amount on deposit which can be attributed to performance with the company during the community. Blalock, supra.

The Sims guidelines referred to in our decree provide a method to compute the non-member spouse’s right to his/her one-half of the amount owed. This does not render the pension equity a community asset. The non-member spouse is entitled to reimbursement for contributions made to the fund from the community, plus reimbursement for any increase in value, including interest or contributions that may come from other sources, e. g., the employer. The community’s equity in the pension fund should be reimbursable now as an offset in the pending partition.

REHEARING DENIED.


author: CHIASSON, Judge.

text:
    LEON McQUEEN LUMBER COMPANY, INC. v. Michael S. BAER, Jr. et al.
    No. 13523.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 8, 1980.
    Rehearing Denied Sept. 8, 1980.

      France W. Watts, III, Franklinton, and Ray M. Stewart, Picayune, Miss., for plaintiff.
    Michael S. Baer, III, and Dan E. Melichar & John DiGiulio, of Gravel, Roy & Burns, Alexandria, for Michael S. Baer, Jr.
    Joseph A. Perrault, Jr., of Foil, Perrault & Uter, and Arthur H. Andrews of Franklin, Moore & Walsh, Baton Rouge, for Bennett & Peters, Inc. and Foremost Insurance Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is a suit brought by Leon McQueen Lumber Company, Inc. (McQueen) for damages allegedly arising out of a breach of contract.

In May of 1973, Michael S. Baer, Jr. sold McQueen the timber he owned on certain property. This timber deed was not recorded. Thereafter, in January of 1974 Baer sold the property, on which the timber was located, to Crown Zellerbach Corporation without excepting the timber therefrom. Subsequently, Crown Zellerbach evicted McQueen from the property, thus preventing it from fully harvesting the timber.

Both vendees (McQueen and Crown Zel-lerbach) were procured by Bennett & Peters, Inc., professional foresters, whose services had been enrolled by Baer.

Suit was initiated by McQueen against Baer, Bennett & Peters, Inc. and Foremost Insurance Company, the errors and omissions carrier for Bennett & Peters, Inc. Defendant Baer filed a third party demand against Bennett and Peters, Inc. and Foremost Insurance Company.

After trial the judge who originally heard the case rendered judgment for McQueen against Baer in the amount of $96,932.32. This award represented the purchase price of the timber and damages resulting from lost profits. The demands against Bennett and Peters, Inc. were dismissed.

Thereafter, a new trial was granted by a new judge. After the second trial, judgment was rendered for McQueen against Baer for $36,769.80 with interest therefrom from date of judicial demand. This award represented the purchase price of the timber minus $9,430.20 that McQueen had paid on the loan from the portion of the timber harvested. The judgment further found Bennett & Peters and its insurer jointly liable to Baer for Baer’s liability to McQueen.

All parties seek review of the latter judgment. The following issues are presented on appeal:

1. Whether the trial judge erred in granting a new trial;
2. Whether Baer is liable to McQueen;
3. Whether Bennett & Peters, Inc. is liable to Baer and/or McQueen;
4. Whether the quantum awarded by the trial judge was proper; and
5. Whether the trial judge erred in granting interest on the award from the date of judicial demand.

As to issue number one, the granting of a new trial, we find no merit in the contention that the trial judge erred in granting a new trial. Even if it could be successfully contended that there existed no peremptory grounds for the mandatory allowance of a new trial under the provisions of La.CCP art. 1972, the trial court is given wide discretion in granting or denying the motion for a new trial. La.CCP art. 1973. Hardy v. Kidder, 292 So.2d 575 (La.1974); State Board of Education v. Anthony, 289 So.2d 279 (La.App. 1st Cir. 1973).

In his reasons for granting the new trial the trial judge was concerned about the award to plaintiff of lost profits in a case based upon warranty and the consequences of plaintiff’s failure to record its timber deed upon the damages recoverable.

We consider these to be good grounds for ordering a new trial and find no abuse of discretion by the trial judge.

As to issue number two, Baers’ liability to McQueen, Civil Code Article 2475 provides:

“The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.”
Civil Code Article 2476 further provides: “The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.”

It is apparent from these articles that Baer as vendor of the property sold to McQueen, owed McQueen the obligation of maintaining it in peaceable possession. Baer failed to meet this obligation when McQueen was evicted. McQueen thus acquired specific remedies against Baer as set forth in La.CC art. 2506. Therefore, Baer’s liability to McQueen cannot be successfully disputed.

As to issue number three, Bennett & Peters’ liability to Baer and/or McQueen, we conclude that Bennett & Peters should not be held liable to Baer and/or McQueen. Bennett & Peters was procured by Baer to find a buyer for ■ the timber. It is not disputed that Bennett & Peters provided these services and that when McQueen purchased the timber there were no impediments to McQueen’s ownership. It was not Bennett & Peters’ duty to record the timber deed for McQueen’s protection. Furthermore, the later salé of land to Crown Zeller-bach, without a reservation of timber rights, is not attributable to Bennett & Peters. Bennett, as a real estate agent, agreed to advertise and try to secure a purchaser for some of Baer’s properties. A total of nine tracts of land was advertised of which only three tracts were sold. The choice as to which tracts were to be sold was made by Baer. After a purchaser had been located, Baer took the papers from Bennett and turned them over to his attorney for preparation of the act of sale and the execution thereof. In the advertisement, Bennett did not mention or except therefrom any of the timber. Baer therefore collected for the timber twice, once from McQueen and once from Crown Zeller-bach. Bennett did not prepare the act of sale and cannot be charged with knowledge of the specifics thereof. Under these circumstances, Bennett & Peters did not warrant title to the timber deed and did not have any continuing duty to McQueen subsequent to McQueen’s acquisition of the timber. Nor did they breach any duty to Baer entitling Baer to indemnification on his third party demand.

Even assuming arguendo that Bennett owed some duty to Baer which he violated and would therefore make him liable, the only damages sustained by Baer was $2,022.00 which he has to pay to McQueen as damages, not the total value of the timber on the tract of land sold. Baer had no right to collect for the timber twice. As vendor, Baer knew or should have known what properties he was selling in both conveyances. It was his duty to exempt in the sale of the property the timber which he had previously sold to McQueen.

As to issue number four, the quantum awarded by the trial judge, the rights of a buyer against the seller in a case of eviction are set forth in La.CC art. 2506 which provides:

“When there is a promise of warranty, or when no stipulation was made on that subject, if the buyer be evicted, he has a right to claim against the seller:
1. The restitution of the price.
2. That of the fruits or revenues, when he is obliged to return them to the owner who evicts him.
3. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff.
4. The damages, when he has suffered any, besides the price that he has paid.”

We are of the opinion that the trial court did not err in awarding damages for eviction under this article rather than damages for breach of contract under La.CC art. 1934. Through oversight only, Baer failed to exempt the timber previously sold from the subsequent sale of the land. Even this would not have affected McQueen if it had recorded its timber deed. However, in an eviction action, the failure to record one’s deed may not be asserted as a defense by a vendor seeking to avoid the obligations of a seller. Voss v. Roach, 35 So.2d 142 (La.App. 2nd Cir. 1948).

We now turn to the amount which McQueen is entitled to. Though there was conflicting testimony, the trial judge accepted the figures of McQueen in determining its award. We find no manifest error in giving more credibility to this witness. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, we do find that the trial judge applied an incorrect formula in arriving at his award.

McQueen bought 1,458,000 board feet for $46,200.00. This averages out to be a price of $31.56 per thousand feet. Before being evicted, McQueen harvested 249,000 feet. This left 1,209,000 board feet at $31.56 per thousand unharvested. The total value of this unharvested portion equals $38,156.04. To this amount we add $2,022.00 which represents the total amount that McQueen spent for the acquisition of a right-of-way to the property. Based on these figures we find the proper award to be $40,178.04.

McQueen argues that it is entitled to damages for the profit it could have made had the eviction not occurred. It presented evidence as to its costs of harvesting the standing timber and the price it could have received for the harvested timber. By subtracting the cost from the price, it arrived at a figure of $54,332.32 for loss of profit it could have made.

This is not the type of damages to which section (4) of La.CC art. 2506 refers. We choose to follow the rule for damages under the applicable codal article as set forth in the case of Burrows v. Peirce, 6 La.Ann. 297 (1851). The only item of damages suffered by McQueen within the meaning of this article was its cost of acquiring a right-of-way in order to remove the timber and for which an allowance has already been made. Therefore, the trial court did not err in denying recovery for lost profits.

As to issue number five, Bennett & Peters and Baer contend that the trial judge erred in granting legal interest from the date of judicial demand. However, after a careful review of the jurisprudence and relevant codal article, we conclude that interest on a contract claim should commence to run from the date that the debt becomes due. La.CC art. 1938. Pease v. Gatti, 18 So.2d 511 (La.1944); Wurzlow v. Placid Oil Company, 279 So.2d 749 (La.App. 1st Cir. 1973); Friede v. Myles Salt Co., 177 So.2d 105 (La.App.Orleans, 1937). The allowance therefore of interest from date of judicial demand (as prayed for by McQueen), being a shorter period than would be an award of interest from the date that the debt became due (the date of eviction), cannot be complained of by the debtors.

For these reasons the judgment of the trial court in favor of McQueen as against Baer is amended to the sum of $40,178.04, and as thus amended, is affirmed in all other respects. The judgment in favor of Michael S. Baer, Jr. against Bennett & Peters, Inc. and Foremost Insurance Company is reversed and judgment is rendered herein in favor of Bennett & Peters, Inc. and Foremost Insurance Company dismissing the third party demand against them.

All costs are assessed against Michael S. Baer, Jr.

AMENDED IN PART AND AFFIRMED; REVERSED IN PART AND RENDERED.

      . La.CC art. 1938 provides:
      “All debts shall bear interest at the rate of seven per centum per annum from the time they become due, unless otherwise stipulated.”


text:
    William Gordon HINES v. DIXIE ELECTRIC MEMBERSHIP CORPORATION and Northern Insurance Company of New York.
    No. 13564.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.

      J. A. Delafield and G. Michael Bourgeois, Lake Charles, for plaintiff-appellant William Gordon Hines.
    John S. White, Jr., Baton Rouge, for defendant-appellee Dixie Elec. Membership Corp. and Northern Ins. Co. of New York.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is an action for damages caused by an electric overcurrent at the Admiral Ben-bow Motel in Baton Rouge, Louisiana.

William Gordon Hines, plaintiff-appellant, as owner of the motel, seeks damages for replacement of 85 compressor motors in the air conditioning units, loss of revenue for nonuse of the rooms and loss of food and beverage revenues. Judgment was rendered in favor of defendant Dixie Electric Membership Corporation (Dixie) denying recovery to plaintiff. Plaintiff appealed alleging the trial court erred: 1) in not holding that defendant was strictly liable for the damages; 2) in not finding that the contract between the parties was ambiguous; and 3) in not finding the defendant negligent.

Dixie is a corporation owned by the customers who subscribe to it. A membership contract is entered into between the customer and Dixie which provides for certain responsibilities on the part of both parties. In addition, a set of bylaws governs the relationship between the two parties. Both of these documents were introduced into evidence and form the contractual relationship for this suit.

Plaintiff agreed to be bound by Dixie Consumer Handbook and Bylaws in his application for membership in Dixie. The application provides that Dixie is not liable for service interruptions caused by accidents, breakdowns, Acts of God or other acts or conditions reasonably beyond the control of Dixie. The handbook requires the consumer (Hines) “to provide adequate overcurrent protection in each phase of all motor installations.”

The overcurrent condition was precipitated by a green tree limb falling across the wires of a three phase electrical transmission system belonging to Dixie. This resulted in a short circuit which burned out a jumper some three miles from the fallen tree limb, which in turn caused a single phase outage at plaintiff’s motel resulting in the loss of 85 compressors located on the consumer’s side of the service. A “jumper” is a piece of electrical wire manufactured by a third party which is used to tie in one wire terminating at a pole to another wire originating at the same pole.

In advancing the strict liability theory, counsel for plaintiff directs the court’s attention to Civil Code Article 2317 and the case of Loescher v. Parr, 324 So.2d 441 (La.1975). Plaintiff argues that since the juniper was in the control or custody of Dixie, it should be liable for the damages incurred by the plaintiff. Article 2317 of the Civil Code reads in part as follows:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody....”

Our Supreme Court in the Loescher case, supra, pointed out three methods of a defendant escaping this liability.

“This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” Loescher, supra, pp. 446-447.

Both parties during the course of this litigation entered into the following written stipulation:

“IT IS STIPULATED by and between counsel for the parties that on May 26, 1976, a green limb fell from a tree located on Lot 144, Camelot Subdivision, Second Filing, East Baton Rouge Parish, Louisiana, privately owned by one not a party to this suit but on a servitude of Dixie Electric Membership Corporation, and came in contact with a three phase, four wire electric distribution line owned by Dixie Electric Membership Corporation.”

Plaintiff contends that the burning of the “jumper” in Dixie’s care, custody or “garde” caused the damages he sustained. However, as found by the trial court, there is no evidence of record which would indicate that the “jumper” contained any vice or was faulty in any manner. To the contrary, the evidence establishes that an outside source, a green tree limb from a tree not owned or reasonably controlled by Dixie, caused the short circuit condition which created an overload resulting in the burnt “jumper.” Plaintiff’s failure to prove a vice or defect in the “jumper” is fatal to his claim under the strict liability theory. Additionally, the damages were not caused by the “jumper” but by the tree limb which was not in the custody of Dixie.

In regards to plaintiff’s contention that portions of the Membership Contract and Bylaws were ambiguous, the trial court was correct in construing the entire document in finding no ambiguities. Texaco, Inc. v. Vermilion Parish School Board, 244 La. 408, 152 So.2d 541 (1963) and Solomon v. Hickman, 219 So.2d 330 (La.App. 1st Cir. 1969). The plaintiff is arguing that the word “adequate” is ambiguous in one provision of the contract relating to providing adequate overcurrent protection. From a reading of the entire contract, the trial court reached the conclusion that “it is apparent that the whole thrust of the agreement is that the consumer is responsible for its electrical equipment on its side of the service.” We agree with the trial court’s conclusion.

The final argument that plaintiff makes is a twofold negligence theory on the part of Dixie: first, that Dixie was negligent in failing to warn its customers of possible damages to motors caused by single phasing; secondly, the jumper was defective, thus constituting a dangerous instrumentality, which required Dixie to instruct its users of the hazards of its use.

With the vast different needs of each customer, the duty of an electric company to warn of every possible type of condition would be insurmountable. The different effects of an outage were well demonstrated in the instant ease by the failure of the single phase motors and the lack of damage to the three phase motors. Besides, the customer under the Membership Contract and Bylaws with Dixie Electric is responsible for all of the electric equipment on its side of the line. It is incumbent on the customer, by terms of this membership contract, (in this case Hines) to ascertain whether his equipment meets the conditions imposed upon him by the agreement.

The second aspect of the plaintiff’s negligence theory is that Dixie’s “jumper” was defective because it burned during “normal use” and it was therefore a potentially dangerous instrumentality requiring Dixie, as its manufacturer, to instruct reasonably foreseeable users of the product with regard to its safe use, or to warn against hazards of use, citing Amco Und. of Audubon Ins. Co. v. American R. & S. Corp., 329 So.2d 501 (La.App. 1st Cir. 1976); Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971). This argument is tenuous at best for a number of reasons: the “jumper” was not defective; the “jumper” burned during an overload condition, not under “normal use”; Dixie was not the manufacturer of the “jumper”; and plaintiff was not using the “jumper” as a product when the damages occurred. All of these circumstances distinguish this case from the cases relied on by the plaintiff.

As earlier stated, the plaintiff’s negligence theory is based on the premise that the failure of the “jumper” caused the damages complained of. As has been pointed out, the cause of the overcurrent was the limb falling on the lines which Dixie had no control over. The trial court held that “. . . negligence was not proved by a preponderance of the evidence in this case.” We agree.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.