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

text:
    Paulette Laubie, wife of/and Andre LAUBIE v. SONESTA INTERNATIONAL HOTEL CORPORATION et al.
    No. 80-CC-2646.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      E. Gordon Schaefer, Jr., New Orleans, for plaintiffs-appellants.
    Edward P. Lobman, Metairie and Victor J. Burnstein, of Sessions, Fishman, Rosen-son, Snellings & Boisfontaine, New Orleans, for defendants-appellees.
   DENNIS, Justice.

The United States Court of Appeals for the Fifth Circuit certified to us for our opinion certain questions of state law. Laubie v. Sonesta International Hotel Corp., 626 F.2d 1324 (5th Cir. 1980). We accepted certification. Rule 12 of the Supreme Court of Louisiana; La.R.S. 13:72.1. Before answering, we set forth from the Court of Appeals’ opinion its prefatory remarks, a statement of the case, and the questions certified.

Prefatory Section of Opinion by Court of Appeals, Fifth Circuit

“This appeal presents important issues of Louisiana state law that are particularly appropriate for resolution by the Louisiana Supreme Court. The plaintiffs, French nationals, allege that, while they were guests at the Royal Sonesta Hotel in New Orleans, Louisiana, burglars entered their room by severing a chain lock and stole their jewelry, valued at $50,000. Contending the defendants were negligent, they seek to recover the amount of their loss from the hotel and three of its executive officers and from the insurer that insured all of the defendants. The defendants invoke Article 2971, Louisiana Civil Code, which limits innkeepers’ liability to $100, and contend that the federal court lacks jurisdiction because its jurisdiction over diversity suits is limited to cases involving more than $1,000. 28 U.S.C. § 1332.

“The dismissal of the innkeeper is not contested; however, the plaintiffs-appellants contend that Article 2971 does not apply to the innkeeper’s employees. So far as we can determine, no Louisiana appellate court has decided whether the limitation of liability in Article 2971 extends not only to the innkeeper but also to its officers and employees.

“We defer decision on this question and certify the issues to the Supreme Court of Louisiana. Following our practice, we requested that the parties submit a proposed agreed certificate of issues for decision. Commendably, they have reached full agreement upon them. Since we also agree that these are the substantive issues presented, we submit the parties’ statement of facts and issues hereby, disclaiming, however, any intention or desire that the Supreme Court of Louisiana confine its reply in the precise form or scope of the question certified. See Allen v. Estate of Carmen, 446 F.2d 1276 (5th Cir. 1971).”

STATEMENT OF THE CASE

“On or about May 22, 1976, the Laubies were paying guests at the Royal Sonesta Hotel, which at all material times was under the management and control of Sones-ta. The Laubies are citizens of France and had occasion to be in the United States on the time in question as a part of the entourage accompanying the visit to New Orleans by the French President, Valery Gis-card d’Estaing.

“After a party in the French President’s honor on the evening of May 21, 1976, the Laubies retired to their hotel room at the Royal Sonesta Hotel when, in the early morning hours of May 22, 1976, a robbery took place in their room, causing them to have taken from them valuable jewelry and jewels, including a watch, rings, etc.

“At all material times, the individual defendants were officers, directors, agents and/or employees of defendant, Sonesta.

“Appropriate claim was made for the value of the jewelry to defendant, Sonesta, which claim was refused, and this suit followed.

“Plaintiffs took precautions prior to retiring, including the locking of the door and the securing of the chain lock, in the early morning hours of May 22, 1976, by locking their hotel room doors, windows and securing the chain lock. Nevertheless, a person or persons unknown obtained entry to the room of the Laubies by opening the door and severing the chain lock, and made off with the jewelry above-described.

“At all material times, the Royal Sonesta Hotel provided a safety deposit vault for the use of its patrons in accordance with the applicable Louisiana Civil Code Articles.”

QUESTIONS CERTIFIED

1. If the negligence of an officer or employee of an innkeeper results in a loss to the property of the innkeeper’s guests by theft while the guests are resident in the inn, is the liability of the negligent person limited to $100 by Article 2971, Louisiana Civil Code?

2. More particularly, the Louisiana intermediate courts have held that Article 2971 of the Civil Code, as reenacted by Act 231 of 1912, provides a limitation not only for the innkeeper’s strict liability as a depositary but also to his liability for loss occasioned through the theft or negligence of his employees. Zurich Insurance Co. v. Fairmont Roosevelt Hotel, Inc., 250 So.2d 94 (La.App. 4 Cir. 1971); Pfennig v. Roosevelt Hotel, 31 So.2d 31 (La.App.Orl.1947). If indeed this is so, but see Note, Innkeepers — Limitation of Liability for Loss of Guests’ Property, 22 Tul.L.Rev. 333 (1947), was the statutory intent of the 1912 amendment of Article 2971, in the light of the statutory scheme of Articles 2965-2971 with regard to an innkeeper’s liability, also to limit the liability of the innkeeper’s employees for loss occasioned through their own “fraud or negligence,” Article 2969?

Opinion of This Court

Careful consideration of the questions certified begins with an evaluation of the notion that Article 2971 of the Civil Code limits an innkeeper’s delictual liability, as well as his contractual liability as a depositary. Our examination of the Civil Code and doctrinal materials convinces us that the legislative aim of Article 2971, as amended by Act 231 of 1912, was only to limit the contractual liability of an innkeeper as depositary. Accordingly, since Article 2971 has no application to the question of an innkeeper’s delictual responsibility, the answer to each question certified is “no.”

Deposit is a contractual relationship created by the parties’ mutual consent, whether actual or implied. La.C.C. arts. 2926, 2929, 2932, 2933; Comment, Bailment and Deposit in Louisiana, 35 La.L.Rev. 825, 828 (1975); 2 M. Planiol, Civil Law Treatise, pt. 2, nos. 2204-05 (11th ed. La.St.L.Inst. transí.1959). The necessary deposit is that in which the depositor has not been able to choose freely the person of the depositary, because he acts under an exigency, such as fire, flood, pillage or other casualty. La. C.C. art. 2964; 2 M. Planiol, supra, pt. 2, no. 2216. In principle, the necessary deposit is subject to the same rules as the ordinary deposit. 2 M. Planiol, supra, pt. 2, no. 2217. The law does not derogate from them except in the method of proof: in consideration of the haste in which the necessary deposit is made, the deposition on oath, or affirmation of a single competent or credible witness, may be sufficient to prove a necessary deposit, even when the value of the thing deposited exceeds five hundred dollars. La.C.C. art. 2964. Cf. 2 M. Planiol, supra, pt. 2, no. 2217.

An innkeeper is responsible as depositary for the effects brought by travelers who lodge at his house; the deposit of such effects is assimilated to or considered as a necessary deposit. La.C.C. art. 2965; 2 M. Planiol, supra, pt. 2, no. 2218. An innkeeper’s liability as depositary, therefore, is governed by articles of the Civil Code applicable to deposit, and not by the precepts of delictual responsibility. Much of the confusion which has plagued our jurisprudence may be avoided by distinguishing between the contractual nature of deposit and delic-tual concepts. See Zurich Ins. Co. v. Fairmont Roosevelt Hotel, Inc., 259 La. 875, 253 So.2d 213 (1971) (Barham, J., dissenting); Segura v. United States Aircraft Ins. Group, 246 So.2d 880, 886 (La.App.3d Cir. 1971); Comment, 35 La.L.Rev. 831, 836 (1975).

The duty of a depositary is more onerous than that owed under a tortfeasor’s standard of care, particularly if the depositary is compensated or if article 2938 is otherwise applicable. Segura v. United States Aircraft Ins. Group, supra; Comment, 35 La.L.Rev. at 841 (1975). For example, he is obliged to act as a prudent administrator; proof that the deposited articles were not returned or were returned in a damaged condition raises a presumption that the depositary has not fulfilled his obligation. La.C.C. arts. 1908, 2937-38; Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973).

Initially, the Civil Code placed a particularly severe responsibility on an innkeeper as a depositary. He was responsible for the effects of travelers even though they were not delivered into his personal care. La. Digest of 1808, art. 31. He was, and still is, responsible if any of his guests’ effects are stolen or damaged, either by his servants or agents, or by strangers going and coming in the inn. La.C.C. art. 2967; La.C.C. of 1825, art. 2938; La. Digest of 1808, art. 32. The historical justification for making an innkeeper a virtual insurer of his guests’ effects stemmed from the unavoidable reliance travelers had to place on his honesty and diligence. See Profilet v. Hall & Holdreth, 14 La.Ann. 524 (1859).

In view of changing social and economic conditions, with the increasing number of travelers to be lodged and the importance of objects which people take with them, the Civil Code articles pertaining to necessary deposit have been amended repeatedly to diminish innkeepers’ exposure to liability as depositaries. See note, 12 Tul.L.Rev. 333 (1947); cf. 2 M. Planiol, supra, pt. 2, n. 2222. The 1825 Civil Code made an innkeeper’s liability as depositary contingent upon a traveler’s delivery of his effects to a servant or employee of the depositary. La.C.C. of 1825, art. 2937. The Civil Code of 1870 added articles providing that, except for items ordinarily worn about the person, an innkeeper cannot be held responsible for loss or damage to valuables which may be contained in small compass, if the innkeeper provides his guests with an iron safe or other safe deposit for valuables and posts notices that they are required to leave such articles with him for safe deposit, unless the loss occurs through the fraud or negligence of the innkeeper or his employee. La.C.C. arts. 2968 and 2969.

Article 2971 of the Civil Code of 1870 was amended and reenacted by Act No. 231 of 1912, to provide that an innkeeper shall not be “liable under the foregoing six articles” to guests or occupants for any loss or damage to their property in any sum exceeding one hundred dollars, if a copy of this article is conspicuously posted in the guest’s room, unless a greater liability has been contracted for in writing. La.C.C. art. 2971 (as amended by 1912 La.Acts, No. 231). The plain meaning of the text is that an innkeeper’s contractual liability as depositary is limited to $100 if he posts the notice properly and undertakes no greater contractual responsibility in writing. The words of the law specifically limit its application to an innkeeper’s liability under Articles 2965-70, which relate only to his contractual obligations as a depositary. Nothing in the words of the statute, their location in the code of their related codal provisions suggests a legislative intent to place innkeepers and their employees in a more favored position than ordinary members of the public who must respond fully for breach of a delictual duty imposed by general law. The legislative history of an innkeeper’s duty as depositary indicates that Article 2971, as amended, is merely another step to reduce his onerous contractual burden as a depositary. In view of its clarity, freedom from ambiguity and its historical development, we conclude that Article 2971, as amended, does not apply to an innkeeper’s liability in tort but limits only his contractual responsibility as depositary for loss or damage of the property of a guest or occupant.

Our interpretation of Article 2971 is consistent with French law from which the original articles regarding innkeeper’s liability in the Digest of 1808 were drawn. See Articles 2965-67, La.C.C.Comp.Ed., in 17 West’s L.S.A. — C.C. pp. 379-380 (1972); Note, 22 Tul.L.Rev., supra, at 334. Planiol commented that certain French legislation limited a guest’s recovery to 1,000 francs unless he succeeded in proving, without the benefit of any presumption, specifically a fault committed by the innkeeper or one of his agents. Thus, he noted that the innkeeper was not exonerated from the consequences of a proven real fault. 2 M. Planiol, supra, pt. 2, no. 2222 at 280-81. The limitation of liability found in Article 1953, of the French Civil Code is expressly inapplicable when the guest demonstrates his harm resulted from a fault of the innkeeper of his employees. French Civ.Code art. 1953 (J. Crabb transí. 1977).

Accordingly, any language to the contrary in previous opinions of this court or of the courts of appeal must be disregarded. E. g., see Pfennig v. Roosevelt Hotel, supra; Zurich Ins. Co. v. Fairmont Roosevelt Hotel, Inc., 250 So.2d 94 (La.App. 4th Cir.), writ denied, 259 La. 875, 253 So.2d 213 (1971).

Conclusion

Article 2971 of the Civil Code, as amended and reenacted by Act 231 of 1912, provides for a limitation of only the contractual liability of an innkeeper as depositary. It does not diminish the delictual responsibility of the innkeeper, his officers of his employees. Consequently, we answer the certified questions as follows:

Question 1. No.
Question 2. No.

Pursuant to Rule 12, Section 9, Louisiana Supreme Court Rules, the judgment rendered by this court upon the questions certified shall be sent by the clerk of this court under its seal to the United States Court of Appeals for the Fifth Circuit and to the parties.

CERTIFIED QUESTIONS ANSWERED.

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

MARCUS, Justice

(dissenting).

The certified questions raised the issue of whether the $100 limitation on liability of innkeepers provided for by art. 2971 is also applicable to officers and employees of innkeepers. In answering this question in the negative, the majority concluded that the limitation does not even apply to the innkeeper himself in the case of tort liability; thus, it did not specifically address the question of whether the limitation applies to officers and employees of the innkeeper. After reviewing the applicable articles of the Louisiana Civil Code and for reasons hereinafter stated, I conclude that La.Civ. Code art. 2971 limits the liability of an innkeeper to $100, even when the loss of a guest’s property is the result of the innkeeper’s negligence, so long as the innkeeper did not appropriate the property or enrich himself at the guest’s expense and that this limitation is likewise applicable to the officers and employees of an innkeeper.

The liability of innkeepers is covered in Louisiana Civil Code articles 2965-2971:

Art. 2965. Necessary deposit with innkeeper
Art. 2965. An innkeeper is responsible as depositary for the effects brought by travelers who lodge at his house; the deposit of such effects is considered as a necessary deposit.
Art. 2966. Innkeeper’s responsibility for traveler’s effects
Art. 2966. An innkeeper is responsible for the effects brought by travelers, even though they were not delivered into his personal care, provided however, they were delivered to a servant or person in his employment.
Art. 2967. Innkeepers’s liability for effects damaged or stolen
Art. 2967. He is responsible if any of the effects be stolen or damaged, either by his servants or agents, or by strangers going and coming in the inn.
Art. 2968. Innkeeper’s safe for deposit of valuables
Art. 2968. Every landlord or keeper of a public inn or hotel, shall be required to provide with an iron chest or other safe deposit for valuable articles belonging to his guests or customers, and each landlord or hotel keeper shall keep posted upon his doors and other public places in his house of entertainment, written or printed notices to his guests and customers that they must leave their valuables with the landlord, his agent or clerk, for safe keeping, that he may make safe deposit of the same in the place provided for that purpose.
Art. 2969. Loss of valuables not deposited in safe
Art. 2969. Every landlord, hotel or innkeeper who shall comply with the requirements of the preceding articles [article], shall not be liable for any money, jewelry, watches, plate, or other things made of gold or silver, or of rare and precious stones, or for other valuable articles of such description as may be contained in small compass, which may be abstracted or lost from any such public inn or hotel, if the same shall not be left with the landlord, his clerk or agent, for deposit, unless such loss shall occur through the fraud or negligence of the landlord, or some clerk or servant employed by him in such inn or hotel; provided, however, that the provisions of this article shall not apply to a wearing watch, or such other articles of jewelry as are ordinarily worn about the person. Art. 2970. Loss through theft by violence
Art. 2970. He is not responsible for what is stolen by force and arms, or with exterior breaking open of doors, or by any other extraordinary violence.
Art. 2971. Limitation on liability of landlords and innkeepers
Art. 2971. No landlord or innkeeper shall be liable under the provisions of the foregoing six articles to any guests or party of guests occupying the same apartments for any loss sustained by such guests or party of guests by theft or otherwise, in any sum exceeding one hundred dollars, unless by special agreement in writing with the proprietor, manager or lessee of the hotel or inn a greater liability has been contracted for.
Provided that no guest shall be held bound by the limitation of value established in this Article unless this Article is conspicuously posted in the guest room.

Under arts. 2965-2967, an innkeeper is responsible for the effects brought by travelers and delivered into his personal care or to a servant or person in his employment. He is liable if any of his guests’ effects are stolen or damaged by his servants or agents or by strangers entering the inn. Thus, these articles impose strict liability upon the innkeeper for the loss or damage of his guests’ belongings. The scope of this strict liability, however, is curtailed by art. 2969. If an innkeeper or landlord complies with art. 2968 by providing safe deposit for his guests’ valuable articles and posting written notice to his guests that they must leave their valuables with the landlord, his agent or clerk for safekeeping, then he shall not be liable for any valuable articles described in. art. 2969 that are abstracted or lost from his inn if the articles are not left with the landlord, his clerk or agent for deposit, unless the loss occurs through the fraud or negligence of the landlord, or some clerk or servant employed by him. Hence, unless a guest can prove fraud or negligence, an innkeeper who provides safe deposit and posts notice is not liable for the valuables of his guests that are not deposited for safekeeping with the inn.

Furthermore, if art. 2971 (limitation on liability of landlords and innkeepers) is conspicuously posted in the guests’ room and the guest fails to leave his valuables in safe deposit, the landlord’s or innkeeper’s liability for the loss of valuables sustained by “theft or otherwise” shall be limited to $100. The majority concludes that this article only applies to an innkeeper’s contractual liability as a depositary and thus does not apply to his liability in tort. I do not agree. There is nothing in the innkeeper’s liability articles to indicate that they are so limited. While the majority’s interpretation of art. 2971 is consistent with French law, this is of little relevance as it does not appear that art. 2971 was derived from any French law. Furthermore, an analysis of the innkeeper’s liability articles shows that the legislature could have intended to limit art. 2971 to cases of contractual liability. If an innkeeper fails to comply with art. 2968, then he is strictly liable for any loss incurred by his guest and accordingly the limitation of liability provided by art. 2971 would not apply. Under paragraph two of art. 2971, if an innkeeper fails to post the article in the guest’s room, the limitation does not apply. If a guest who fails to deposit his valuables for safekeeping loses his valuables without the occurrence of fraud or negligence and the innkeeper complies with art. 2968, then the limitation of liability provision is not necessary as the innkeeper is not liable. Therefore, the only possible circumstance for the applicability of the limitation of liability is when the guest has failed to deposit his valuables and the innkeeper has complied with arts. 2968 and 2971 but has not been found free from fraud or negligence. Hence, the limitation of liability provision of art. 2971 must apply in cases where the innkeeper is negligent, as to interpret otherwise would render art. 2971 useless.

The only exception to the limitation of liability of art. 2971 is provided in the article itself, wherein it is stated that the limitation does not apply if by special agreement in writing the proprietor, manager or lessee of the inn has contracted for a greater liability. Also, in the case of Pfennig v. Roosevelt Hotel, Inc., 31 So.2d 31 (La.App. Orl.1947), the court of appeal noted that the limitation of liability of art. 2971 would not be available to the innkeeper if the innkeeper, himself, had appropriated the articles or had enriched himself at the expense of the guest.

Because art. 2971 refers back to the “provisions of the foregoing six articles,” it is self-evident that it must be read in pari materia with those articles. Article 2966 creates liability for an innkeeper for effects delivered into his personal care or to a “servant or person in his employment.” He is responsible for effects stolen or damaged by “his servants or agents.” Article 2968 requires an innkeeper to post notice that valuables must be left with the “landlord, his agent or clerk.” Under art. 2969, an innkeeper is not liable for effects abstracted or lost if the guest fails to leave his valuables with the “landlord, his clerk or agent” unless the loss occurs through the fraud or negligence of the “landlord, or some clerk or servant employed by him in such inn or hotel.” Furthermore, art. 2971 itself allows a guest to contract with the “proprietor, manager or lessee of the hotel or inn” for a greater liability. Thus, it is clear that the articles on liability of an innkeeper cover both the innkeeper and his employees.

Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

The hotel posted a notice, as admitted by all parties, which was in compliance with the statute, advising hotel guests that a safe deposit box was available for its guests’ valuables. C.C. art. 2968. As to those deposits in the hotel safe, the innkeeper undoubtedly would be liable as a contractual depository.

In this writer’s opinion, a fair reading of the statutory scheme compels the following legal conclusions. As to the loss of those items not deposited in the safe, but left in the room where thieves may break in and steal, the statutory liability for such losses is governed by the provisions of C.C. art. 2971, which article limits the innkeeper’s liability to $100. The purpose of such legislation was not to permit one to avoid the consequences of his own negligence, but to recognize the fact that where there was involved a question as to the value of the articles belonging to a guest, that the innkeeper was at the mercy of an unscrupulous guest.

The writer believes that the legislative scheme to limit such liability is also applicable to the innkeeper’s agents and employees, who are also “innkeepers” within the meaning of this statute. In any event, an innkeeper would be hard pressed to act except through its agents and employees. To hold the innkeeper’s employees liable without restriction, and limit the innkeeper to $100, would certainly undermine the legislative policy of C.C. art. 2971.

As far as valuables not kept in the hotel safe are concerned, there is only one innkeeper and that includes the corporate entity and all of its employees and agents.

Clearly, if the Civil Code arts. 2965 through 2971 are construed in pari materia, the opposite result as that found in the majority opinion would obtain.

I respectfully dissent.


source: Caselaw Access Project

author:
JASPER E. JONES, Justice Ad Hoc.
     LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Curtis J. BROWN.
    No. 80-KA-2402.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander Perez, Jr., Dist. Atty., Frank Klein, Gilbert V. Andry, III, Asst. Dist. Attys., for plaintiff-appellee.
    George C. Ehmig, Gretna, for defendant-appellant.
   JASPER E. JONES, Justice Ad Hoc.

Curtis Wayne Brown was charged by a bill of information with attempted first degree murder of Gauthier, a deputy sheriff, in violation of LSA-R.S. 14:27, 30. He was tried by a jury of twelve on April 1, 1980 and found guilty as charged. The trial judge sentenced Brown to 40 years at hard labor. On appeal defendant relies upon three assignments of error as grounds for reversal of his conviction and sentence.

On the morning of March 27, 1978 the defendant and Tommy Williams went from their home in Algiers, La., in a 1974 Ford Thunderbird to Empire, La., looking for a job. Defendant was driving the automobile and Williams was riding on the right front seat. On their return trip to Algiers, in the vicinity of Belle Chase, La. Gauthier in a marked Plaquemines Parish Sheriff’s Office vehicle stopped defendant for speeding. Deputy Gauthier got out of his automobile and started walking towards the parked Thunderbird, and as he reached a point very close to the left rear of the Thunderbird he observed a shotgun sticking out of the driver’s window pointed at him and held by defendant. As he observed the gun it appeared to him that defendant was attempting to fire it but that it misfired, whereupon Gauthier turned and ran at which time he was shot in the right shoulder. He ran and jumped into a ditch which lay in the neutral ground between the double-laned highway, drew his revolver, and fired six times at the Thunderbird as it sped away. After the vehicle had traveled a short distance it stopped and defendant and Williams left the car and ran across the levee and soon thereafter were apprehended.

All three of defendant’s assignments of error are based upon events which occurred at trial that refer directly to crimes that defendant had committed other than the one for which he was being tried, which he contends was contrary to the provisions contained in the Louisiana Code of Criminal Procedure Article 770, which provides in pertinent part as follows:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

There are exceptions to the prohibition of reference to other crimes set forth in La.C.Cr.P. art. 770. Included among those exceptions are related offenses admissible as part of the res gestae, convictions admissible for impeachment purposes, evidence tending to show intent, knowledge, or system as authorized by LSA-R.S. 15:445-446. The evidence of other crimes is also admissible to establish motive for the commission of the crime charged. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Walker, 394 So.2d 1181 (La.1981). Reference to the crime of conspiracy may be made when a prima facie case of conspiracy has been established. LSA-R.S. 15:455.

ASSIGNMENT OF ERROR # 1

The State during their interrogation of Jim Churchman, a criminalist with the Louisiana State Police, asked Mr. Churchman if the shotgun used to shoot Gauthier was a standard 410 gauge shotgun. Churchman responded to the question stating the weapon had been rendered illegal by two features. Defense counsel at this point moved for a dismissal urging that the evidence of the illegality of the sawed-off shotgun was evidence of other crimes prohibited by La.C. Cr.P. Art. 770. Churchman testified that the barrel of the gun was only long and its overall length was only 20".

Possession of a shotgun with a barrel less than 18" in length or one with an overall length of less than 26" which has not been properly registered is prohibited by LSA-R.S. 40:1781 et seq.

LSA-R.S. 15:448 defines res gestae as follows:

“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

The use of the sawed-off shotgun was a necessary incident of the criminal act charged of attempted first degree murder. It was inseparably entwined in the criminal conduct charged, and therefore the evidence about the length of the barrel of the gun and the overall length of the gun which established that the possession of it was prohibited without proper registration, was admissible as part of the res gestae. See State v. Williams, 375 So.2d 364 (La.1979); State v. Tornabene, 337 So.2d 214 (La.1976).

ASSIGNMENT OF ERROR # 2

The defendant contends that the trial judge erred in denying his motion for mistrial based upon the prosecutor’s interrogation of Charles Isbel, a used car dealer, who testified that the vehicle driven by defendant at the time Gauthier was shot had been stolen from his used car lot. Defendant objected to this testimony and moved for a mistrial arguing that the inquiry called for evidence of another crime other than the one for which defendant was being tried. Theft of an automobile is prohibited by LSA-R.S. 14:67.

Evidence that defendant had stolen the Thunderbird which he was operating is admissible as an exception to La.C.Cr.P. art. 770 because it establishes motive on the part of defendant to commit the crime charged. Motive has been defined as a reason the accused has for committing the charged offense. Motive is the cause or reason that moves the will and induces action for definite result. State v. Abercrombie, 375 So.2d 1170 (La.1979).

Defendant, the admitted driver of the Thunderbird, under normal circumstances would have no reason to have shot at the officer who was stopping him on a speeding charge, the punishment for which would probably have only been a fine. Defendant denied shooting the officer. He testified the officer was shot by Williams. It therefore became important to the State’s case to establish a reason why defendant would have fired the shot. If defendant had stolen the automobile, a crime for which he could be sent to prison for many years, it was most important for him to avoid having the crime discovered, a very likely probability in the event he was arrested on the speeding charge. Proof that defendant had stolen the vehicle establishes a motive for defendant to fire upon the officer in order to avoid being arrested on the speeding charge.

In order for the evidence on the car theft to be admissible, the state must comply with the following requirements of State v. Prieur, 277 So.2d 126 (La.1973), which are (1) there must be clear and convincing evidence that the theft had been committed by defendant, (2) the other crime must be relevant for some other purpose than to show a probability that defendant committed the crime on trial because he is a man of criminal character, (3) the other crime does tend to prove a material fact genuinely at issue, (4) the probative value of the crime of theft of the vehicle outweighs its prejudicial effect. See State v. Walker, supra.

The testimony of the used car dealer to the effect that the Thunderbird in which defendant was riding at the time the officer was shot had been stolen from his lot, while proving theft, fails to prove defendant’s connection with the theft. However, defendant took the stand and his counsel elicited testimony from him that he had seen the Thunderbird parked under a bridge with the keys in it for three days and that he decided to take possession of the vehicle and take a joy-ride in it. The testimony of defendant, along with the evidence produced by the State of the theft, provides clear and convincing evidence that theft had been committed and defendant’s connection with it.

The fact that defendant denied he fired the gun at the officer creates a genuine issue as to whether he did in fact fire it and makes the requirement that the State establish a motive for his having fired it an important purpose for the introduction of the evidence of the crime of car theft. For these reasons the evidence of the other crime had a purpose other than establishing that defendant was a man of criminal character and was evidence tending to prove that defendant in fact did commit the crime charged.

While evidence that defendant committed the crime of car theft undoubtedly had some prejudicial effect upon the defendant before the jury, the probative value of the car theft crime for the purpose of establishing motive outweighed its prejudicial effect. The assignment of error is without merit.

ASSIGNMENT OF ERROR # 3

Defendant contends the trial judge erred in charging the jury with the law of conspiracy, over defendant’s objection, when defendant had not been charged with conspiracy. LSA-R.S. 14:26 defines the law of conspiracy as follows:

“A Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other. ...”

A criminal conspiracy to commit a crime is an inchoate crime separate and distinct from the completed criminal act. LSA-R.S. 15:455 provides:

“Each coeonspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

When the defendant is on trial for the completed offense the jury may be charged with the law of conspiracy if the State establishes a prima facie case of conspiracy. State v. Kaufman, 331 So.2d 16 (La.1976); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Clark, 387 So.2d 1124 (La.1980).

Proof of a conspiracy may be made with direct or circumstantial evidence. State v. Kaufman; State v. Sheppard; State v. Clark, supra.

When the only evidence offered to establish the conspiracy is that two people committed a crime and there is no evidence that the defendant committed the crime or conspired to commit the crime, no prima facie case of conspiracy has been established. The fact, alone, that two or more people have committed the crime charged is not sufficient to establish a pri-ma facie case of conspiracy. State v. Carter, 326 So.2d 848 (La.1975); State v. Clark, supra.

This court in the case of State v. McCoy, 395 So.2d 319 (La.1980), has defined prima facie evidence as evidence sufficient to establish a given fact which if not rebutted or contradicted will remain sufficient.

The undisputed facts are that the defendant and Tommy Williams were alone in the car together when a shot was fired from the driver’s window, where defendant was sitting, that struck Officer Gauthier. Defendant testified that Williams handed him the shotgun which belonged to Williams and told him to shoot the officer. Defendant stated he took the gun from Williams. The officer testified that as he walked to a point very close to the rear of defendant’s vehicle that defendant stuck the gun out the window alongside the car and pointed the barrel of the gun at him, and that it misfired. The officer then turned and ran at which time he was shot in the right shoulder. Defendant testified he was told by Williams to leave the scene as soon as the shot was fired and in response to this instruction he threw the vehicle into low gear and left the scene with the officer shooting at his side of the car.

These facts, circumstances and inferences from them, if unexplained, would establish that this defendant was told to commit the crime and acted upon this communication by taking the gun from Williams, sticking it out the window of the car, pointing it at the officer, and unsuccessfully attempting to fire it, and then firing it. The recited facts which were found in the testimony of defendant and the testimony of Gauthier provide a prima facie case that defendant and Tommy Williams by their words and actions agreed and combined to shoot the officer. There is also in the record the eyewitness testimony of Williams that defendant shot the officer.

The fact that defendant denies shooting the officer and stated that Williams took the gun and shot the officer, does not detract from the facts and circumstances above set forth, which, if unexplained, establish a prima facie case that defendant committed the crime and did so by the request and direction of Williams and in agreemeiit with him.

We find that a prima facie case of a conspiracy has been established. The judge is required to charge the jury on the law applicable to the case which would include the conspiracy charge if it was relevant. La.C.Cr.P. art. 802(1). It was here relevant because defendant denied shooting the gun and testified that the shot which struck the officer was fired by Williams. This assignment of error is without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Evidence of the illegality of the weapon possessed by defendant was not part of the res gestae. However, since the fact of illegality was somewhat relevant to show motive and was not unduly prejudicial, I cannot say that the trial court erred in admitting the evidence.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, and Harry T. Lemmon.

      . Prieur also required as a condition of admissibility of evidence of other crimes that the State give defendant notice of its intention to offer evidence of other crimes prior to trial and no notice was here given. Defendant in brief does not argue this as error and he made no objection to this failure at the time of trial and it is therefore waived. See State v. Baylis, 388 So.2d 713 (La.1980).


author: BLANCHE, Justice. MARCUS, Justice,

text:
    John M. SPAIN v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION.
    No. 80-C-2712.
    Supreme Court of Louisiana.
    May 18, 1981.

      W. Luther Wilson of Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-applicant.
    R. Bradley Lewis, Charles M. Hughes, Talley, Anthony, Hughes & Knight, Bogalu-sa, for defendant-respondent.
   BLANCHE, Justice.

The sole issue presented by this case is the applicability of the Louisiana Open Meetings Law to meetings of the Louisiana High School Athletic Association (LHSAA). R.S. 42:4.1 et. seq. Both the district court and the court of appeal resolved the issue in the negative. 393 So.2d 226. This Court issued a writ of certiorari to consider the correctness of their determinations. 395 So.2d 1354. We reverse.

Revised Statute 42:5(A) provides that every “meeting” of any “public body” shall be open to the public unless excepted by law. A “meeting” is an assembly of a quorum of the public body to deliberate or act on a matter within the body’s jurisdiction. R.S. 42:4.2(A)(1). “Public body” is defined, for purposes of the Open Meetings Law, as follows:

“ ‘Public body’ means village, town, and city governing authorities; parish governing authorities; school boards, and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this Paragraph. ‘Public body’ shall not include the legislature.” R.S. 42:4.2(A)(2).

The LHSAA contends that it cannot be categorized as any body deemed “public” by the act, and therefore, it is not subject to the legislation, while the plaintiff asserts, to the contrary, that the LHSAA is a committee or subcommittee of the several school boards of the state.

The LHSAA is a statewide association of approximately 450 public and private high schools. Each member school is represented by its principal. The primary governing body of the association between annual meetings is an executive committee, which consists of persons chosen by member schools, designated educational and athletic associations, and even the State Superintendent of Education and State Department of Education. The executive committee selects officers from its members and hires an administrative commissioner with broad regulatory powers. The commissioner in turn appoints a sportsmanship committee, of which he can also be a member, in order to investigate charges of poor sportsmanship and impose sanctions when necessary.

The cornerstones of the association are its constitution and by-laws. Article II of the LHSAA constitution states that the object of the association “... shall be to promote, regulate and direct the interscholastic athletic activities of the high schools of Louisiana ... ”, for the protection of the interests of the participants in those activities. More specifically, one purpose of the LHSAA is to “.. . assist, advise and aid schools in organizing and conducting interscholastic sports.” In effectuating the primary objective of the association, the constitution and by-laws provide mandatory regulations covering almost every aspect of high school interscholastic sports, including, but not limited to: membership eligibility; classification of member schools by size and location; rules for the games of football, basketball, baseball, track, golf, gymnastics, volleyball, tennis, swimming, soccer and wrestling; rules of eligibility and qualifications for individuals desiring to participate in sports, including scholastic course and grade point requirements for athletes; minimum qualifications for coaches; transfer of athlete rules; dues, fees and other services exacted by the association from members; and penalties and sanctions against individual athletes and member schools for rules violations.

Counsel for the LHSAA is quick to point out that the rules of the association are only mandatory to the extent that schools choose to become members and abide by them. He adds that the ultimate power of the association is expulsion of the member rather than compulsion exercised by a sovereign. However, this fails to give weight to the enormous de facto power exerted by the association. Frank Spruiell, who is listed in the 1979-80 LHSAA Official Handbook as the Commissioner and Secretary-Treasurer of the association, testified at trial that, to his knowledge, every accredited public high school engaged in athletic competition in this state is a member of the association. He also agreed that “a number” of private high schools belong to the association and collectively amount to about 20 percent of the association’s membership. This testimony alone underscores the devastating effect of failing to join or failing to abide by a regulation or sanction imposed by the association. Non-membership is almost tantamount to obscurity in athletics. Further, Thomas McCoin, the Director of Athletics for the East Baton Rouge Parish School System, testified that he felt that schools agreed by joining the association that they would abide by decisions handed down by the LHSAA. He also testified that he once abided by a decision of the LHSAA which required him to make available for a basketball game a school gym under his administrative control. At the very least, this testimony indicates that a public employee of one school system considers himself “morally obligated” to abide by the regulations of the association. When coupled with the accumulated clout of the schools that adhere to the association’s rules and the comprehensiveness of its regulations, the awesome power of the association over schools becomes evident.

The constitution of the LHSAA spells out the method by which the association is funded. The association is financed by membership dues, a percentage of gate receipts for certain specified events, and entry fees for participating in sports for championship honors. Regarding the entry fees, all checks are required to be school checks and made payable to the association, although Mr. Spruiell testified that “We’ll take any check that’s good.”

Aside from money flowing directly to the association by and in behalf of member schools, the secretary and staff of the LHSAA are legislatively defined as “teachers” for the purpose of inclusion in the Teachers’ Retirement System of Louisiana (TRSLA). R.S. 17:571(23), 591(A). Thus, those persons connected with the association reap the same tangible and intangible benefits extended to public employees of institutions under the control of the State Board of Elementary and Secondary Education.

Against the scenario created by the constitution and operation of the LHSAA, the function of government with regard to high school athletics must be examined in order to resolve the issue at hand.

The provision of education to the people of Louisiana is regarded as a governmental responsibility. The legislature must provide for education and is charged with establishing and maintaining a public educational system. La.Const. Art. VIII, § 1. The State Board of Elementary and Secondary Education (BESE) must supervise and control the public elementary and secondary schools and establish minimum requirements for private schools, while its administrative head, the State Superintendent of Education, must implement its policies. La.Const. Art. VIII, §§ 2-4. Local control and financing of the public schools is exercised by the parish school boards. La.Const. Art. VIII, §§ 3(A), 9; R.S. 17:81 et seq..

While the fielding of athletic teams is nowhere expressly designated as a responsibility of our public school system, this Court, to paraphrase our trial brother, is belaboring the obvious in stating that high school athletics serves a useful educational purpose as an adjunct to classroom instruction. See Dumez v. La. High School Athletic Assn., 334 So.2d 494 (La.App., 1st Cir. 1976). As such, it is within the regulatory scope of government. It is equally obvious that public schools are, in fact, fielding interscholastic athletic teams which represent their respective schools with at least the implied consent of state and local school governing bodies. School boards regularly pay coaches salaries and allow schools to dispose of earned gate receipts as they see fit as well as maintain stadia and other physical facilities. The legislature has enacted statutes allowing parish and city school boards to purchase school buses for school athletic departments and provide hospitalization and bodily injury insurance for members of school sponsored teams without regard to fault, as well as one including LHSAA staff members in the TRSLA, discussed earlier. R.S. 17:158.1, 169. Even the association recognizes its connection with the educational system by providing in its constitution that the executive committee include within its membership people appointed by the State Superintendent of Education, the State Department of Education, the Executive Committee of the State School Boards Association, and members of the State Superintendents’ Association.

Public school principals are employees of their respective school boards. The school boards are subject to state school laws and the regulations of the Board of Elementary and Secondary Education. R.S. 17:81. BESE is a “state board” within the definition of “public body” as stated in the Open Meetings Law, and school boards and their committees and subcommittees are expressly subject to the act. R.S. 42:4.2(A)(2), 5(A). Principals are not, most probably because their role is perceived as that of an individual administrator charged with the implementation of educational policies and regulations at a single institution. Yet, an assemblage of principals established as an official committee or subcommittee of a school board or BESE would be literally subject to the Open Meetings Law regardless of its function. The logical question flowing from this, however, is whether or not an assemblage of principals acting without formal composition as a committee or subcommittee can, for certain purposes, be considered as one.

Revised Statute 42:4.1, dealing with interpretation of the Open Meetings Law, provides:

“It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through R.S. 42:10 shall be construed liberally.”

While the term “public officials” is not defined in the Open Meetings Law, the term is an obvious reference to the term “public officers” found in R.S. 42:1, which term includes members of boards or commissions established by the constitution or laws of this state. Since BESE and school board members are public officers and the boards are public bodies, R.S. 42:4.1 is clearly designed to insure that citizens be permitted to observe their deliberations. Furthermore, R.S. 42:5 provides that each public body shall be prohibited from utilizing any means to circumvent the intent of the act. To protect these goals and follow the mandate of the legislature, this Court must construe the terms “committee” and “subcommittee” liberally for the purposes of this act.

The LHSAA performs a function which is, by law, entrusted to the various bodies established for the regulation of public education. It is funded by public money earned by state schools at athletic events. It has established a comprehensive set of rules and regulations governing how public schools and their students must conduct themselves with regard to athletic and academic endeavors, all with the acquiescence and implied blessing of the legislature, Board of Elementary and Secondary Education, Superintendent of Education, and local school boards. See Seghers v. Community Advancement, Inc., 357 So.2d 626 (La.App., 1st Cir. 1978). Equally important is the degree of connexity between the regulatory functions of the LHSAA and the regulatory functions of a particular “public body” found in R.S. 42:4.2(A)(2). Here the con-nexity is close, since LHSAA performs a major policy-making, advisory and administrative function in an area that is within the primary control of public bodies listed in the Open Meetings Law.

Viewed in this light, the LHSAA and its official committees and subcommittees in their present form do constitute collective committees or subcommittees of the parish school boards or State Board of Elementary and Secondary Education for the purposes of the Open Meetings Law.

The LHSAA has cited a plethora of cases in which courts have stated that the association is a private, voluntary association. It is important to note, however, that this body of law did not deal with a positive legislative pronouncement which defined the conditions under which an entity must be deemed “public” for a limited purpose. Since such a pronouncement is present in this case, the appellation “private, voluntary association” cannot preclude the application of the Open Meetings Law. See Seghers v. Community Advancement, Inc., supra.

Procedurally, this case arose when an individual was denied access without reason to a meeting of the LHSAA sportsmanship committee. Suit was brought for a mandatory injunction requiring the association to comply with the provisions of R.S. 42:4.1 et seq., Both lower courts denied relief since they were of the opinion that the LHSAA was not a “public body”. However, in light of the present decision of this Court, it was error for the lower courts to deny the plaintiff the relief sought. Accordingly, the Louisiana High School Athletic Association is ordered to comply with the provisions of the Louisiana Open Meetings Law, R.S. 42:4.1 et seq..

REVERSED AND RENDERED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice,

dissenting.

I consider the Louisiana High School Athletic Association (LHSAA) to be a private, unincorporated, voluntary association. As such, it is not a “Public body” as defined in the Open Meetings Law and therefore not subject to its provisions. Accordingly, I respectfully dissent.

      . Art. X, § 1.
      “The Money for Financing the Association Shall Be Derived From:
      “(1) Membership dues.
      “(2) Ten percent (10%) of the gross receipts from all football jamborees after the fees for officials have been deducted and ten percent (10%) of the gross receipts from all play-offs, beginning with the bi-district play and through the state championship football games, bowl games and post season games shall be paid to the Association.
      “(3) Five percent (5%) of the gross receipts from all approved invitational basketball tournaments after the fees for officials have been deducted, and five percent (5%) of the gross receipts from all basketball play-offs, beginning with the bi-district play on through the girls’ state basketball tournaments and boys’ quarter finals shall be paid to the Association.
      “(4) The entry fees for participation in the following sports for championship honors are as listed below: ALL CHECKS ARE TO BE SCHOOL CHECKS AND MADE PAYABLE TO THE LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION.”

      “(5) The receipts of the Top Twenty State Basketball Tournament, after expenses.
      “(6) Five percent (5%) of the gross receipts of the Sweet Sixteen State Basketball Tournament.
      “NOTE: Playoff games are defined as all games after the district champion has been decided.

      “A financial report, names of participating schools and outcome of games (completed brackets in case of basketball tournaments), must be submitted in the Commissioner’s office within 21 days of the contest accompanied by a check for the amount due the L.H.S.A.A.”
      The foregoing also serves as a representative illustration of the comprehensiveness of the 90 pages of regulations found in the 1979-80 Official Handbook of the LHSAA.

      . For example, Mr. McCoin testified that approximately 275 coaches in East Baton Rouge Parish are paid coaching salaries by the School Board in addition to their regular teaching salaries. He also testified that the athletic programs in the schools under his supervision are funded by gate receipts, and that the local school board had decided that each school could retain the gate receipts it earned.

      . See Bank of Winnfield v. Brumfield, 11 La. App. 647, 124 So. 628 (2nd Cir. 1929).

      . LHSAA has been recognized as a private, unincorporated, voluntary association in the following cases: Chabert v. Louisiana High School Athletic Association, 323 So.2d 774 (La. 1975); Marino v. Waters, 220 So.2d 802 (La. App., 1st Cir. 1969); Sanders v. Louisiana High School Athletic Association, 242 So.2d 19 (La. App., 3rd Cir. 1970); David v. Louisiana High School Athletic Association, 244 So.2d 292 (La. App., 1st Cir. 1971); Watkins v. Louisiana High School Athletic Association, 301 So.2d 695 (La. App., 3rd Cir. 1974); and Walsh v. Louisiana High School Athletic Association, 616 F.2d 152 (5th Cir. 1980), cert. den. - U.S. --, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981).
      We note, however, that the actions of „the organization have been deemed “state action” for purposes of compliance with the 14th Amendment of the United States Constitution. Dumez v. La. High School Athletic Association, supra; Walsh v. Louisiana High School Athletic Association, supra; Louisiana High School Athletic Association v. St. Augustine High School, 396 F.2d 224 (5th Cir. 1968).

      . R.S. 42:6.1 provides exceptions to the Open Meetings Law. In the present case, plaintiff was denied access to a meeting because the LHSAA asserted that it was not subject to the act. It is possible, however, that plaintiff still might have been properly denied access to the meeting in question if the association, pursuant to the act, had claimed an exception to the open meeting requirement.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Frank W. BROOKS and Fran-Car, Inc., d/b/a Ding-A-Ling Answering Service, Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY and Western Electric Co., Inc., Appellees.
    No. 78-2339.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Rehearing Denied June 29, 1981.
    Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellants.
    Reed A. Bryan, III, Davis W. Duke, Jr., and John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, and Earl R. Hadlow of Mahoney, Hadlow & Adams, Jacksonville, for appel-lees.
   PER CURIAM.

This is an appeal from a final judgment against appellants on a counterclaim. The case arose out of a disputed bill of approximately $2,100. Southern Bell billed appellant this amount for relocating equipment used by a telephone answering service. Mr. Brooks, the owner of the answering service, refused to pay the bill, and eventually Southern Bell sued and recovered a portion of its bill. Brooks, on behalf of the answering service, filed a counterclaim and third party action based on theories of (1) breach of contract, (2) fraudulent misrepresentation, (3) negligent misrepresentation, and (4) abuse of process. Eventually, a jury returned substantial verdicts against Southern Bell and Western Electric for compensatory and punitive damages. The trial court granted motions for directed verdicts and entered final judgment in favor of Southern Bell and Western Electric. We affirm.

We conclude that there was simply no evidence of damage and that the plaintiffs’ proof did not support any of the theories actually stated in the pleadings. A great deal of argument is made concerning an unpled cause of action based on the theory of tortious breach of a statutorily imposed duty. The answering service contends that Southern Bell violated State statutes, regulations, and internal tariffs and that this conduct subjected Southern Bell and Western Electric to separate tort liability. Appellants contend this theory was tried by consent. From the record it appears the trial court ruled to the contrary. We conclude the “breach of statute tort” was neither pled nor tried by consent.

The judgment below is affirmed.

AFFIRMED.

DOWNEY and BERANEK, JJ., concur.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge,

concurring in part and dissenting in part:

As the majority points out this litigation arose out of an agreement to transfer a telephone answering service from one location in Broward County to another in said county. A jury awarded Southern Bell $1200 on its complaint, but also awarded Brooks $200,000 in compensatory damages jointly and $1,000,000 in punitive damages, $500,000 severally, against Southern Bell and Western Electric on the second amended counterclaim and third party complaint, respectively. Following the trial the late Judge L. Clayton Nance entered an order, granting the motion of Southern Bell and Western Electric for judgment in accordance with their motions for directed verdict. The order said in pertinent part:

[W]here there is work properly done, service uninterrupted, no payment of any kind, no reliance or change of position, no loss of credit or reputation, no abuse of process, no actual damage of any kind shown by the testimony or evidence, an award of any kind cannot stand.

I commence my discussion of this matter by noting that this court has recognized:

It is too well known to require specific citations of authorities that the authority to direct a verdict should be exercised with caution because otherwise there is an invasion by the court of the province of the jury contrary to constitutional guarantee. Further, the trial judge may not pass upon witness credibility or weigh the evidence. And the movant in such case admits all of the facts shown in the evidence and every reasonable inference favorable to the adverse party. Without laboring these well known principles further, it is enough to say, see 32 Fla.Jur., Trial, § 83 et seq.

Lupoletti v. Miller, 269 So.2d 67, 68 (Fla. 4th DCA 1972).

Brooks’ position is that there was evidence of violation of duties prescribed by statutes, rules and tariffs, that proof of such violations entitled them to nominal damages, and that an award of nominal damages would support an award of punitive damages. First, they allege that there was evidence that Southern Bell overcharged them in the move, that the man-hours claimed by the utility were grossly excessive, and that transportation costs were padded. They point out that the move was to be based on Southern Bell’s actual cost — not estimated cost, and that the utility’s general manager in his letter to them dated December 8, 1972, expressly said, “It is my understanding that you have elected to proceed on a ‘keep cost’ or accrued charges basis rather than accept our estimate.” They further claim that Southern Bell’s Administrative Rate Practices Supplement as well as the General Exchange Tariff, Section 20, 14th revised sheet, effective January 21, 1972, and the General Exchange Tariff, Section 12, 4th revised sheet, effective September 7, 1960, provided that the move of answering systems be on a cost basis. Finally, they point to Sections 364.08 and 364.21, Florida Statutes (1971), as making it unlawful and felonious for any telephone company to charge rates other than those specified in the tariffs on file.

Second, Brooks alleges that there was evidence that Southern Bell never furnished them with an itemized bill for the move. They point out that Rule 25 — 4.107 of the Rules and Regulations of the Public Service Commission specifically provided that upon request of any customer “each company shall provide an explanation for the rates, charges and provisions applicable to the service furnished or to be furnished such customer,” and that Rule 25-4.110 made it the duty of the telephone company to comply with the customers’ reasonable request “for an itemized statement of charges.”

Florida courts consistently have held that a statute, ordinance or regulation creates a duty for the benefit of at least those members of the class of persons it was intended to protect, and a violation of said duty constitutes at least prima facie evidence of negligence. Although most cases that arise from a breach of the duty involve damages for personal injury or death, this does not preclude an action exclusively for pecuniary loss or for vindication of an invasion of a legal right. In fact, in Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964), the court held that a statute, which imposed criminal sanctions for the wrongful removal and disposal of mortgaged personalty, created a duty for the benefit of the mortgagee. A cause of action arose by virtue of an alleged violation of the statute. Further, in Girard Trust Company v. Tampashores Development Company, 95 Fla. 1010, 1015-16, 117 So. 786, 788 (1928), the supreme court said:

Where a statute requires an act to be done for the benefit of another or forbids the doing of an act which may be to his injury, though no action be given in express terms by the statute for the omission or commission, the general rule of law is that the party injured should have an action; for, where a statute gives a right, there, although in express terms it has not given a remedy, the remedy which by law is properly applicable to that right follows as an incident.

See also Mobile American Corp. v. Southern Bell Telephone & Telegraph Co., 282 So.2d 181 (Fla. 1st DCA 1973), aff’d as modified, 291 So.2d 199 (Fla.1974). Likewise, where no physical or financial injury has been inflicted, nominal damages are appropriate. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977); Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972); Tampa Electric Co. v. Ferguson, 96 Fla. 375, 118 So. 211 (1928); King v. Saucier, 356 So.2d 930 (Fla.2d DCA 1978).

Sub judice, the foregoing statutes, rules and tariffs did not impose a duty on Western Electric but did create a duty for the benefit of the telephone company’s customers. Upon Southern Bell’s alleged violation thereof a cause of action accrued to appellants.

The majority says that the “ ‘breach of statute tort’ was neither pled nor tried by consent.” I agree that it was never pled, but disagree that it was not tried by implied consent as provided by Florida Rule of Civil Procedure 1.190(b). At the charge conference counsel for Southern Bell did not object to proposed instructions for a recovery based on negligent violation of statute. In fact it appears that the objection for inadequate pleading was not raised until post trial motions.

The jury, after instruction on compensatory damages, both actual and nominal, chose to award what they believed to be the actual damages sustained. Since the record does not support a finding of actual compensatory damages and the jury did not make a finding of nominal damages, there is no compensatory damage basis in the record necessary to support the award of punitive damages. Tennant v. Vazquez, 389 So.2d 1183 (Fla.2d DCA 1980); American Motorcycle Institute v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980); Sonson v. Nelson, 357 So.2d 747 (Fla.3d DCA 1978), cert. denied, 364 So.2d 889 (Fla.1978), cert. denied, 364 So.2d 891 (Fla.1978). See Lassitter v. International Union of Operating Engineers, supra.

On the basis of the above, I would affirm the order and final judgment in all respects except as to Brooks’ claim for damages as a result of Southern Bell’s alleged violation of statutes, rules and tariffs. On said claim I would order a new trial on both liability and damages. See Section 59.35, Florida Statutes (1979). Had the majority agreed with me, on remand the trial court would have been able to consider any motions to amend the pleadings in accordance with Florida Rule of Civil Procedure 1.190. Grady v. Grady, 395 So.2d 643 (Fla. 4th DCA 1981); Florida Air Conditioners, Inc. v. Colonial Supply Co., 390 So.2d 174 (Fla. 5th DCA 1980).

Accordingly, I would affirm in part, reverse in part and remand.

      . Since both appellants will stand or fall on the same legal principles, hereinafter they will be referred to as “Brooks.”

      . deJesus v. Seaboard Coast Line R.R., 281 So.2d 198 (Fla.1973), is recognized as the leading authority in Florida for this proposition. That case held that based on the purpose of the statute, a violation thereof could result in strict liability, negligence per se, or prima facie evidence of negligence.

      . Counsel’s only objection was to the sufficiency of the evidence to support such a claim. By making that objection coupled with failing to object on the inadequacies of the pleadings, Southern Bell tacitly consented and recognized that this tort was being tried.

      .Contrary to the majority, I do not believe that the trial court’s silence on the trial by consent issue in the order granting post trial judgment for directed verdict can be construed as anything but its failure to rule on the issue.


author: COBB, Judge.

text:
    Susan Long BRUNER, Appellant, v. BOARD OF REAL ESTATE, DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 80-897.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Rehearing Denied June 5, 1981.

      Kenneth M. Meer and Thomas V. Infanti-no, Winter Park, for appellant.
    Frederick H. Wilsen and Salvatore A. Carpino, Tallahassee, for appellee.
   COBB, Judge.

On March 30,1979, Bruner applied to the Florida Real Estate Commission (FREC) for a broker’s license. Her application showed that she had pled guilty to grand theft, that adjudication had been withheld, and that she had been placed on five years probation.

On June 27,1979, FREC entered an order in which it stated that it had investigated the incident referred to on Bruner’s application and had found that it was in reference to an arrest that had occurred in Orange County on March 24, 1978. FREC went on to find that by Bruner’s own omissions she was guilty of a crime of this state involving moral turpitude, or fraudulent or dishonest dealings, and she therefore had failed to show that she was honest and of good character with a good reputation for fair dealing. FREC denied Bruner’s application.

At the time of Bruner’s application and FREC’s initial decision regarding that application, section 475.17, Florida Statutes (1979) provided that an applicant would be deemed not to be qualified if he had been guilty of conduct that would have been grounds for revoking or suspending a license, and section 475.25(l)(e), Florida Statutes (1979) provided that an individual can have his license revoked or suspended if he had “been guilty” of a crime involving moral turpitude or fraudulent or dishonest dealings. On July 1, 1979, section 475.-25(l)(e), Florida Statutes was renumbered as section 475.25(l)(f), Florida Statutes and the words “been found guilty regardless of whether adjudication was withheld” replaced the words “been guilty.”

On July 16, 1979, Bruner requested a formal hearing on her application. The hearing was held and the hearing officer filed his recommended order in which he recommended that Bruner’s application be denied. Bruner filed her own recommended order and exceptions to the hearing officer’s recommended order.

On July 9, 1980, the Department of Professional Regulation (Department) rejected Bruner’s exceptions and adopted the hearing officer’s recommended order. Appellant has raised three points on appeal. In her first and second points, Bruner questioned the procedure by the Department of Professional Regulation in dealing with Bruner’s proposed findings of fact and exceptions to the hearing officer’s recommended order. We do not find any reversible error. § 120.68(8), Fla.Stat. (1979); Parekh v. Career Service Commission, 346 So.2d 145 (Fla. 1st DCA 1977).

In her third point on appeal, Bruner contended that there was insufficient evidence to support the Department’s denial of her application. To support that contention, Bruner argues that the Department should have applied the licensing statute in effect at the time of Bruner’s application which would have required a finding that Bruner had “been guilty” of a crime in order to deny Bruner’s application, and since adjudication had been withheld on Bruner’s grand theft charge, she had not been guilty of the crime.

Bruner’s argument on this point fails in two respects. First, the Department should have applied the licensing statute in effect at the time that it made its decision. City Council of City of North Miami Beach v. Trebor Construction Corporation, 296 So.2d 490 (Fla.1974); Holladay v. City of Coral Gables, 382 So.2d 92 (Fla.3d DCA 1980); 51 Am.Jur.2d Licenses and Permits § 46 (1970); Annot., 169 A.L.R. 584 (1947). Second, Bruner had pled guilty so that even under the old statute she could have been deemed to have “been guilty.”

Since we find Bruner’s arguments to be without merit, we affirm the order of the Department of Professional Regulation which denied Bruner’s application for a broker’s license.

AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: WENTWORTH, Judge.

text:
    FLORIDA OPTOMETRIC ASSOCIATION, INC., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner. DEPARTMENT OF PROFESSIONAL REGULATION et al., Appellee, v. BOARD OF OPTICIANRY et al., Respondent.
    Nos. WW-427, XX-274.
    District Court of Appeal of Florida, First District.
    May 5, 1981.
    William L. Boyd, IV, of Hopping, Boyd, Green & Sams, Tallahassee, Fred Dudley of Aloia, Dudley & Roosa, Cape Coral, Wilson Jerry Foster, Tallahassee, for appellees.
    Robert W. Perkins of Perkins, Vickers & Collins, Tallahassee, amicus curiae.
    Fred R. Dudley of Aloia, Dudley & Roosa, Cape Coral, for appellant.
    Jim Smith, Atty. Gen., Chris D. Rolle, Asst. Atty. Gen., William L. Boyd, IV, Wilson Jerry Foster, Tina Hippie, Tallahassee, for appellees.
   WENTWORTH, Judge.

This is an appeal from appellee Board’s § 120.565 declaratory statement in response to a question propounded by two petitioning associations, “The Society of Ophthalmic Dispensers” and “Optical Dispensers of North Florida.” We find that the associations were not proper parties to petition for the declaratory statement in the circumstances of this case and reverse the order appealed.

The associations requested a declaratory statement as to the applicability of an agency rule upon a hypothetical set of circumstances which allegedly existed as to some association members. However, they did not establish or allege that the rule had any potential impact upon the associations’ interests as entities, or in any way applied to a particular set of circumstances involving the associations themselves. The individual association members who may be affected by the rule were not parties to the petition and the associations were not proper parties, as contemplated by § 120.565 and Rule 28-4.05, Florida Administrative Code, to obtain a declaratory statement on behalf of their individual members. Cf., Depart ment of Labor and Employment Security, Division of Labor, Florida Home Builders Association v. Florida Building Trades Council, 392 So.2d 21 (Fla. 1st DCA 1981); Florida Department of Education v. Florida Education Association/United AFT-AFL-CIO, 378 So.2d 893 (Fla. 1st DCA 1979).

The order appealed is reversed.

SHIVERS, J., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur.

      . We note, without deciding, that even if the associations had the requisite interest for § 120.565 purposes, the case would then present an issue as to these unincorporated associations’ legal capacity to institute such proceedings. See Phillips & Co. v. Hall, 99 Fla. 1206, 128 So. 635 (1930); cf., Walton-Okaloosa-Santa Rosa Medical Society v. Spires, 153 So.2d 325 (Fla. 1st DCA 1963).


author: ORFINGER, Judge.

text:
    STATE ex rel. Clarence Albert ZACKE, Petitioner, v. Honorable J. William WOODSON, Respondent.
    Nos. 81-287, 81-288 and 81-433.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.
    Joe M. Mitchell, Jr., Andrew A. Graham and Joan H. Bickerstaff, Melbourne, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for respondent.
   ORFINGER, Judge.

We have consolidated for disposition three separate petitions for writ of prohibition, all involving the same parties. Each involves an attempt by petitioner to disqualify the same trial judge in separate criminal proceedings pending in Brevard County.

Petitioner was charged with four separate criminal offenses. One has been disposed of in his favor, and warrants no further discussion. Two of the cases were initially assigned to respondent as the trial judge. The third case was initially assigned to Judge Conkling, who subsequently entered an order disqualifying himself after a motion was filed by petitioner alleging prejudice. By virtue of the random assignment process of the clerk’s office, No. 80-1819-CF was then assigned to respondent.

In the cases where respondent was the initially assigned judge, petitioner filed a motion to disqualify him, alleging respondent’s prejudice against him and alleging that petitioner could not receive a fair trial. Affidavits were attached which recited a series of events purporting to show respondent’s prejudice. Respondent declined to disqualify himself in those cases, ruling that he was not prejudiced.

Florida Rule of Criminal Procedure 3.230(d) says:

The judge presiding shall examine the motion and supporting affidavits to disqualify him for prejudice to determine their legal sufficiency only, but shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification. If the motion and affidavits are legally sufficient, the presiding judge shall enter an order disqualifying himself and proceed no further therein. Another judge shall be designated in a manner prescribed by applicable laws or rules for the substitution of judges for the trial of causes where the judge presiding is disqualified. (emphasis added).

This subdivision of the rule addresses itself only to the judge initially assigned to a case. If the motion and affidavits are le-gaily sufficient, the presiding judge shall enter an order disqualifying himself without passing on the truth of the facts alleged and without adjudicating the question of disqualification. This section of the rule limits the trial judge to a “bare determination of legal sufficiency” of the motion. Bundy v. Rudd, 366 So.2d 440 (Fla.1978).

In cases 80-2235-CF and 81-201-CF, where respondent was the initially assigned judge, the motions and affidavits were legally sufficient, so the judge was required by the rule to disqualify himself without regard to the truth of the allegations. Once the basis for disqualification has been established, prohibition is the appropriate remedy, Bundy, supra; Brown v. Rowe, 96 Fla. 289, 118 So. 9 (1929), but we assume that the formal issuance of the writ will be unnecessary.

Case No. 80-1819-CF, however, presents a different problem. There, Judge Conkling was the first assigned judge and respondent was assigned as the substitute judge after Judge Conkling entered the order of disqualification. When the motion to disqualify is addressed to the substitute judge, Florida Rule of Criminal Procedure 3.230(e) controls, and says:

... the judge so assigned shall not be disqualified on account of alleged prejudice against the party making the motion in the first instance ... unless the judge shall admit and hold that it is then a fact that he, the said judge, does not stand fair and impartial between the parties and if such judge shall hold, rule and adjudge that he does stand fair and impartial as between the parties and their respective interest, he shall cause such ruling to be entered on the minutes of the court, and shall proceed to preside as judge in the pending cause.
The ruling of such judge may be reviewed by the appellate court, as are other rulings of the trial court.

As successor judge, and as provided by subdivision (e) of the rule, respondent entered an order in which he did “hold, rule and adjudge that he does stand fair and impartial between the State of Florida, Clarence Albert Zacke and their respective interests ...” Under these circumstances, while “the ruling of [the trial] judge may be reviewed'by the appellate court as are other rulings of the trial court”, the entry of a writ of prohibition is not appropriate here.

Petitioner contends that it would be anomalous to permit respondent to preside in the third case if he is disqualified in the first two cases, but this argument does not withstand close scrutiny when we examine the reason for our ruling in the first two cases. Under subdivision (d) of the rule, the truth of the allegations of the motion and affidavit is not inquired into. No determination is made that the judge is in fact prejudiced and partial; rather, the motions and affidavits are taken at face value. This cannot be construed as any indication that the judge is prejudiced in fact Where the judge is a substitute or successor judge under subdivision (e) of the rule, and a motion for disqualification is filed, the judge then is required to hold either that he is not fair and impartial between the parties, or that the contrary is true, and if the judge holds and adjudges that he does stand fair and impartial between the parties “he ... shall proceed to preside as judge of the pending cause.” The rulings are thus not anomalous.

The petition for writ of prohibition in Case No. 80-1819-CF is denied.

Ordered accordingly.

DAUKSCH, C. J., and COWART, J., concur.

      . Nos. 80-2235-CF and 81-201-CF each charged petitioner with solicitation to murder a state witness in another case then pending against petitioner.

      . No 80-1819-CF, also charging petitioner with solicitation to murder a state witness.

      . This ruling is not one of the non-final orders reviewable under Florida Rule of Appellate Procedure 9.130.


text:
    CITIZENS OF the STATE of Florida, Appellants, v. FLORIDA PUBLIC SERVICE COMMISSION, et al., Appellees.
    No. XX-7.
    District Court of Appeal of Florida, First District.
    May 12, 1981.
    Rehearing Denied June 24, 1981.

      Jack Shreve, Public Counsel, and J. Roger Howe, Asst. Public Counsel, Tallahassee, for appellants.
    Arthur C. Canaday, Jr., Susan F. Clark, Virginia Daire Reber, and Raymond E. Ves-terby, Tallahassee, for appellee, Public Service Commission.
    James L. Ade and William A. Van Nort-wick, Jr., Jacksonville, for appellee, General Waterworks Corp.
   LILES, WOODIE A. (Retired), Associate Judge.

Pursuant to Article V, Section 3(b)(2), Florida Constitution (1980), the Public Counsel is before this Court urging that we disallow a rate base which includes “add back” of accumulated depreciation attributable to contributions-in-aid-of-construction (CIAC).

The Public Service Commission (PSC) granted General Waterworks Corporation d/b/a General Waterworks — Central Florida District (General Waterworks) a rate increase and in doing so allowed the accumulated depreciation on CIAC to be added back, and Public Counsel maintains that this is that type of “double-dipping” prohibited by the Supreme Court in Citizens of the State of Florida v. Hawkins (Holiday Lakes), 364 So.2d 723 (Fla.1978).

There, the Court said:

The process of setting public utility rates involves at least two essential elements: the utility’s rate base and the rate of return. Rate base represents the utility property which provides the services for which rates are charged. The rate of return is a percentage figure which is applied to the rate base in order to establish a reasonable return for the utility’s investors. When these two figures are multiplied the net operating income of the utility results. Operating expense and income taxes are then added to the net operating income to calculate gross revenue. The actual rates charged the customers are determined in such a way as to allow the utility to collect this gross revenue. Id., at 724.

Here, as in Holiday Lakes, a significant portion of the utility’s assets, or property, is attributable to CIAC, which is plant for which the utility’s investors have not paid. In calculating General Waterworks’ rate base, the PSC has allowed the utility to add back into its computation a figure which represents accumulated depreciation on CIAC. Stating its computation of rate base as a formula, PSC’s method defines rate base as follows:

RB = (X + Y)-[(A + B) + X] + A

First, and most importantly, Holiday Lakes is factually distinguishable because there the PSC, in addition to allowing the add-back into the rate base, also allowed the utility to treat that depreciation on CIAC as an operating expense. In this ease, however, the PSC did not allow depreciation on CIAC as an operating expense. This difference in treatment is important. The practice of allowing CIAC depreciation as an operating expense instead of allowing the add-back in the rate base would lead to a greater revenue requirement for the utility and, consequently, higher rates for the utility’s customers because a utility receives a dollar-for-dollar return on operating expenses, but only a percentage on its rate base. Further, while the practice of allowing depreciation on CIAC as an operating expense was not at issue in Holiday Lakes, the end result of that case disallowed the add-back in the rate base so as to prevent the utility from double-dipping. Accordingly, we think that the PSC’s present practice of disallowing depreciation on CIAC as an operating expense constitutes an offsetting factor “which would neutralize this practice (adding back accumulated depreciation on CIAC in the rate base) and the harmful effects that ensue from allowing utilities to earn a return on contributed capital.” Id., at 727.

The Supreme Court also specifically noted in Holiday Lakes that its decision in no way conflicted with its prior ruling in Westwood Lake, Inc. v. Dade County, 264 So.2d 7 (Fla.1972), and quoted approvingly from that case:

[T]o disregard arbitrarily that part of a utility’s equipment because it was “contributed” and to allow no recognition of its replacement ignores reality; it would only mean a raise in rates later on when it became necessary to replace it. A depreciation loss factor may be proper if necessary to prevent a resulting unfair rate, because its purpose is to save against loss and this must be anticipated. Id., at 11.

Holiday Lakes, 364 So.2d at 726. Stated differently, depreciation is not merely a measure of the recovery of investment; rather, it also reflects deterioration of equipment which, inevitably, will have to be replaced. Here, by utilizing the PSC’s formula for rate base the utility can make provisions today for the replacement of property as it is retired from service. The formula allows the utility to receive a fair return on its investment and in no way penalizes the rate payers who are paying for the cost of using up the equipment which provides them service.

Finally to the Public Counsel’s contentions, PSC’s allowance of the add-back does not reintroduce CIAC into the rate base. Rather, it completely eliminates its influence! If CIAC and accumulated depreciation on it are completely excised from the rate base formula described above, one ends up with the following formula for rate base:

RB = Y-B.

As noted earlier, the PSC’s formula for computing rate base is:

RB = (X + Y)-[(A + B) + X] + A.

As can be readily seen, these two formulas are equal:

Y-B = (X + Y)-[(A + B) + X] + A.
Y-B = (X + Y)-[(a + B) + x] + a.
Y-B = Y-B.

CIAC has thus been completely eliminated from the rate base. Hence, the actual accounting procedures used need not be scrutinized under the “end result” doctrine first enunciated in Jacksonville Gas Corporation v. Florida Railroad & Public Utilities Commission, 50 So.2d 887 (Fla.1951). See also, Westwood, supra; General Telephone Company of Florida v. Carter, 115 So.2d 554 (Fla.1959); Federal Power Commission v. Hope Natural Gas Company, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944).

We have considered the other points on appeal and cross-appeal and find them to be without merit. Accordingly, PSC’s order is

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.

      . X represents CIAC; Y represents invested capital in utility; (X + Y) represents the total assets of the utility; A represents accumulated depreciation on CIAC; B represents accumulated depreciation on invested capital; (A + B) represents accumulated depreciation on total assets.


author: PER CURIAM.

text:
    SOUTHERN PAVING COMPANY and Taft Asphalt Company, Appellants, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. YY-166.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Rehearing Denied June 24, 1981.

      Daniel J. Wiser of Roberts, Miller, Bag-gett, LaFace, Richard & Wiser, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Linda C. Procta, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant Southern Paving Company appeals from an agency order to pay additional sales tax on asphalt, based on an invoiced amount from Taft Asphalt, a wholly owned subsidiary. Southern claims that it paid the correct sales tax under § 212.06(l)(b), Florida Statutes, regarding manufacturing within a company for its own use. The Department of Revenue asserts that tax is due under § 212.05 because asphalt was sold from Taft to Southern as separate entities. We agree with the appellant that no additional sales tax is owed.

Southern incorporated its asphalt division under the name of Taft Asphalt and sold shares to Sloane Construction Company who agreed to provide outside management for the plant. This operation was not successful, and in 1974/75 Southern regained the stock and sole control of Taft. Southern’s comptroller maintained separate books for Taft, and whenever Taft provided asphalt to Southern, an invoice was made for the transfer with two figures. One figure was the “fabricated cost” which was the cost of materials used to make the asphalt; Southern paid a sales tax based on this amount. The other figure was the “inter-company transfer charge,” upon which Department’s auditor based his tax assessment. This figure was set arbitrarily by Southern’s comptroller for employees to use when pricing jobs in order to get a profit margin.

In November, 1977, the Taft books were merged into Southern’s records. The auditor approved of tax payment based on the fabricated cost from that time. It is unre-futed that the only change in November, 1977, was a merger of books and not a merger of the companies as the hearing officer stated in his recommended order. This mere change in the form of bookkeeping was the only basis for the auditor's distinction between the taxable amounts. This emphasis on revised bookkeeping form instead of the unchanging substance of the asphalt transfers is erroneous. Since the transfers were made in exactly the same way before the books were merged that the Department agrees was taxable under § 212.06(l)(b) after the merger, we find that Southern properly paid tax on the fabricated cost of materials prior to November, 1977, and no additional tax is due.

The Department argued that the transfers were taxable under § 212.05 as sales, and the hearing officer found that Taft received payment from Southern for the asphalt transferred. We find no evidence of any consideration paid for the asphalt so as to constitute a sale as defined by § 212.02(2)(a).

Although we find that no additional tax is due based on the intercompany transfer charge, other tax assessments were made which were not subject to this appeal. We find it necessary, therefore, to address the issue of penalty tax assessment. This tax is discretionary, and we do not find that the Department abused its discretion. The auditor suggested a reduced penalty, and the hearing officer recommended that the entire penalty be withdrawn because “the assessment stems from honest and differing opinions.” The Department assessed the maximum 25% penalty under § 212.12(2). Modification is allowed by § 212.12(5) if the penalty would be too severe or unjust, but it is not mandated either by the statute or by the facts of this case.

We reverse the order assessing taxes based on the intercompany transfer charge, but affirm the penalty tax on other assessments.

MILLS, C. J., and SHAW, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: PER CURIAM. ERVIN, Judge,

text:
    In the Interest of M. L. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. TT-2.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    Rehearing Denied June 9, 1981.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, a juvenile, appeals his adjudication of guilt and commitment to HRS, arguing that the trial judge erred in denying his motion to suppress certain incriminating statements made to Officer Crum-mit. We agree and reverse.

Appellant was arrested in connection with a burglary by Officer Crummit. During questioning, appellant made certain incriminating oral statements and gave what was purported to be a written statement. Appellant challenges the voluntariness of the confession, arguing that Officer Crum-mit did not comply with Rule of Juvenile Procedure 8.290(d)(4). The rule states:

(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary execution thereof.

Officer Crummit was the only person to witness appellant’s signature on the waiver of rights form.

The state argues that noncompliance with the rule of juvenile procedure is a mere technicality which should not invalidate an otherwise voluntary statement. The state urges a “totality of the circumstances” standard in judging the voluntariness of juvenile confessions similar to that used in adult criminal cases. See Jordan v. State, 334 So.2d 589 (Fla.1976) which held: “[T]here is no constitutional requirement that a waiver is valid only if written and signed in the presence of two witnesses .... ” See also State v. Francois, 197 So.2d 492 (Fla.1967); Postell v. State, 383 So.2d 1159 (Fla.3d DCA 1980); and T. B. v. State, 306 So.2d 183 (Fla.2d DCA 1975), pertaining to the totality of the circumstances standard in juvenile cases.

In the case before us, appellant can neither read nor write except to sign his name. His purported written statement is completely unintelligible. There is no way one can decipher its meaning. At the suppression hearing Officer Crummit testified he could not understand the written statement since it was not in sentence form. Appellant testified he told Crummit he could not read or write. Crummit could not remember whether appellant told him this or not.

Regarding the oral statement, Crummit testified he read appellant his rights from a Miranda warning form, but he did not read the waiver of rights section. The officer stated that he explained the waiver section to appellant and gave him the form to read and sign.

Giving an illiterate juvenile a waiver of rights form to read and sign is, to say the least, a totally useless act. A more thorough inquiry as to appellant’s ability to read and comprehend the waiver would have revealed the futility of the act. To safeguard the rights of the accused and to assist the state in showing the voluntariness of waivers of counsel, the supreme court has mandated by rule that two witnesses attest to the voluntary execution of a juvenile’s waiver of his right to counsel. We are convinced under the facts of this case that the failure to comply with the rules of juvenile procedure in conjunction with appellant’s inability to read or write invalidates his confession. In juvenile cases the state bears a heavy burden in establishing that the waiver was intelligently made. T. B. v. State, supra. We conclude that the state did not carry its burden of proving that appellant voluntarily and intelligently waived his right to counsel.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings.

SHAW and WENTWORTH, JJ., concur.

ERVIN, J., dissenting with opinion.

ERVIN, Judge,

dissenting.

Doerr v. State, 383 So.2d 905 (Fla.1980), recognizes that an arresting officer’s failure to notify the parents of a minor child immediately after taking him into custody does not per se invalidate a confession, but rather is a factor which the court may consider in determining the voluntariness of the confession. The same standard governs the facts in the present case. The failure of the custodial authorities to obtain two persons to sign a waiver of rights form as attesting witnesses is only one factor to be considered in determining whether the statement was voluntarily given. By analogy, Florida Rule of Criminal Procedure 3.111(d)(4), the counterpart of Florida Rule of Juvenile Procedure 8.290(d)(4), has been interpreted by the Florida Supreme Court as not requiring the suppression of a statement which is otherwise shown to be voluntary simply because the waiver form was not executed by two witnesses. See Jordan v. State, 334 So.2d 589 (Fla.1976). The court held there that a defendant need not expressly waive his rights and that “[t]here was an implicit waiver in the act of the appellant in proceeding to give the statement after he had been given an explanation of his rights and had indicated comprehension of that explanation.” Id. at 592. In my view the same conclusion should also be reached here.

In the case at bar, the interrogating officer stated that before he obtained the statement, he read to appellant, who was nearly 17 years of age at the time of the offense, his constitutional rights which were just above the waiver portion of the form. The form was the customary type which advised the defendant, among other things, that he did not have to make a statement; that he had the right to an attorney, and that he had the right to stop answering questions at anytime and consult with either an appointed or privately employed attorney. When asked if he understood his rights, the appellant replied that he did, and signed the form. The officer also denied threatening appellant in any way, denied that appellant appeared intoxicated, and finally denied that any promises were made to appellant in exchange for his statement. Although the officer stated that he could not remember whether appellant had told him he could not read, I do not think that this one circumstance, when weighed against all others, militates against a finding that the confession was knowingly and voluntarily given.

I would affirm.

      . Indeed, Florida Rule of Juvenile Procedure 8.290(d)(3) supports the conclusion that waiver can only be determined after considering the totality of all the circumstances, including mental condition, age, educational experience, etc.