author: BLANCHE, Justice.

text:
    Sheila B. CRESCIONNE, as Tutrix for Jean Claude Crescionne, Jr. and Michelle Crescionne v. LOUISIANA STATE POLICE RETIREMENT BOARD.
    Nos. 84-C-0510, 84-C-0631.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      Michael I. Murphy, Natchitoches, for plaintiff-applicant.
    Floyd J. Falcon, Jr., Daniel L. Avant, Avant & Falcon, Baton Rouge; William J. Guste, Jr., Atty. Gen., William C. Toadvin, Asst. Atty. Gen., for defendants-respondents.
    William J. Guste, Jr., Atty. Gen., William C. Toadvin, Asst. Atty. Gen., for defendant-applicant.
    Michael I. Murphy, Natchitoches, Floyd J. Falcon, Jr., Daniel L. Avant, Avant & Falcon, Baton Rouge, for plaintiff-respondent.
   BLANCHE, Justice.

Jean Claude Crescionne, Sr., was a Louisiana State Police Trooper when he was killed in the line of duty on April 20, 1982. Prior to his death, Crescionne had been married three times. His first marriage was to Sheila B. Crescionne, who has filed this action as tutrix for and on behalf of her two minor children born of this marriage before it ended in divo'rce. The second marriage was childless and also ended in divorce. The third marriage was to the intervenor in this case, Sara G. Crescionne, and one child was born of that marriage. Sara Crescionne and the deceased obtained a judgment of separation from bed and board on October 29, 1981.

Upon Trooper Crescionne’s death, the Louisiana State Police Retirement Board, defendant herein, awarded survivor’s benefits to Sara G. Crescionne pursuant to La. R.S. 40:1431, which provides:

The surviving spouse of any police employee whose death results from injury received in line of duty shall be pensioned at seventy-five percent of the salary being received by the employee at the time of the injury. This pension shall be paid only so long as the surviving spouse is eligible under the provisions of this Subpart.

Thereafter, the Board denied plaintiffs application for survivor’s benefits on behalf of her two minor children. This suit was then filed seeking survivor benefits for the minors under La.R.S. 40:1432. Sara G. Crescionne intervened and, along with the defendant, filed peremptory exceptions of no right of action. A hearing was held and the trial court sustained the exceptions and dismissed the suit. On appeal, the First Circuit reversed the decision of the trial court. Both the intervenor and the Board sought writs from this court, and we granted them to consider the sole question of the meaning of the term “surviving spouse” in R.S. 40:1431.

The First Circuit ruled that all of the statutes governing the State Police Retirement System must be read in pari mate-ria and that though the term “surviving spouse” is not defined in § 1431, it must refer to one “married to and living with the deceased as per the requirements of La. R.S. 40:1436.” 447 So.2d 20 at 22 (La.App. 1st Cir.1984). We disagree.

While it is true that the Civil Code directs that laws on the same subject matter should be construed with reference to one another, it is also true that it is only when one statute is unclear that another on the same subject should be called in aid to explain it. La.C.C. art. 17. Otherwise, where there is no ambiguity, the words of a statute are to be read in their most usual significance, that is, according to their general and popular use. La.C.C. art. 14. The term “surviving spouse” is used without qualification not only in § 1431 of Title 40, but also in §§ 1432, 1434, 1435, and 1436.

The ordinary meaning of the word “spouse” is one’s husband or wife, and marriage is dissolved only by death, divorce, judicial decree of nullity, or the contracting of another marriage on account of absence when authorized by law. La.C.C. art. 136. Had the legislature intended that a use of the term other than the one usually and generally understood, it could have given the words “surviving spouse” a legal definition for use in the Subpart of Title 40 concerning the State Police Retirement System, as it did for several other terms in § 1421. We note especially that the legislature amended § 1421 in 1981 in order to specifically define “minor child” and “student” for the purposes of this Subpart.

La.R.S. 40:1436, which the appellate court relied upon, deals not with survivor’s benefits to a dependent of an active duty trooper, but with continued retirement benefits to a spouse or minor child of a trooper who had retired before his death. In such a ease, the survivor benefits are awarded to the surviving spouse who 1) had been married to the retiree for at least two years prior to his death, and 2) was living with the deceased at the time of death.

A careful reading of § 1436 makes it clear that the statute does not define “surviving spouse,” but merely imposes two conditions which must be met for the surviving spouse to be eligible to receive the pension benefits. In imposing these prerequisites, the legislature sought to serve the policy interest of protecting against the death-bed marriage of a retired trooper for no reason other than to provide benefits to the spouse for life, a policy which is of no concern in a statute providing for surviv- or’s benefits of an active-duty officer. By the same token, we believe it would be against the policy of the state to provide benefits to the survivor whose spouse was killed in action to require that the couple be married for two years before the benefits would attach, which would be the result if this court adopted the appellate court’s position.

Since there is no special statutory definition of the term “surviving spouse,” we hold that it must be given its ordinary, commonly understood meaning, with the result that the spouse who is judicially separated at the time of death is still the surviving spouse and the sole eligible recipient of the benefits of R.S. 40:1431. Counsel for the plaintiff has pointed out the harshness of denying support to minor children of the decedent in favor of a surviving spouse who was legally separated from the decedent at the time of death, but when a statute is clear and unambiguous, this court is bound to apply it as it is written and it is for the legislature to amend the statute if it is inequitable.

DECREE

For the reasons explained above, the decision of the court of appeals is reversed and that of the trial court reinstated. The case is dismissed with costs to the appellant.

REVERSED AND DISMISSED.

LEMMON, J., dissents.

DENNIS, J., dissents with reasons.

      . La.R.S. 40:1432 provides, in pertinent part: If there is no surviving spouse to receive the pension due a spouse of any police employee under R.S. 40:1431, R.S. 40:1434, or R.S. 40:1436, the minor children of the deceased employee, if any, shall receive a monthly pension in the proportions set out herein:
      (2) Three such minor children — fifty percent of the average deceased police employee, equally divided among them.


source: Caselaw Access Project

author: WATSON, Justice. DENNIS, Justice, BLANCHE, Justice

license: Public Domain

text:
    Henry HARRIS, et al. v. PIZZA HUT OF LOUISIANA, INC. and St. Paul Fire and Marine Insurance Company.
    No. 84-C-0304.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      Mack E. Barham, Robert E. Arceneaux, Barham & Churchill, John S. Keller, Charles R. Jones, New Orleans, for plaintiff s-applicants.
    Sylvia E. Taylor, Reserve, for plaintiffs. Charles A. Boggs, Chester A. Fleming, III, Boggs, Loehn & Rodrigue, New Orleans, for defendant-respondent.
   WATSON, Justice.

During an armed robbery of a Pizza Hut, one patron was killed and another injured by a shotgun blast. A jury concluded that the harm resulted from the negligence of the Pizza Hut’s security officer and awarded substantial damages. The court of appeal reversed, finding that the security officer’s actions were not a cause of plaintiffs’ damages. Harris v. Pizza Hut of Louisiana, Inc., 445 So.2d 756 (La.App. 4 Cir.1984). A writ was granted. 447 So.2d 1066 (La., 1984). The novel question is whether the defendant restaurant is legally responsible for plaintiffs’ damages by reason of the negligence of its security guard, when the physical injuries were inflicted by a shotgun fired by an armed robber.

FACTS

On the evening of March 17, 1979, Velet-ter Harris, a daughter, Zina Harris, two of her other children, and a friend were at the Port Street Pizza Hut on the corner of Claiborne Avenue. The restaurant, in a New Orleans high-crime neighborhood, is operated by Pizza Hut of Louisiana, Inc., and insured for liability by St. Paul Fire & Marine Insurance Company. At the time, it had five rows of tables with a salad bar in the front of the center row. The Harris party took seats at the next-to-the last table in that middle row. At the customers’ entrance, located on the side of the building adjacent to a parking area, there was a partition which created a short hall and screened the door.

At approximately 9:10 P.M., an armed and uniformed security guard, Officer Maxie Walker of the New Orleans Police Department, arrived at the Pizza Hut where he was scheduled to work from 9:00 P.M. until 1:00 A.M. He had come directly from a Schwegmann’s Supermarket where he had performed similar duties from 2:00 P.M. until 9:00 P.M. The practice of working as security officers was not unusual among New Orleans policemen. Walker was substituting at the Pizza Hut for Officer Ralph Himel but had worked there in the past. The Pizza Hut personnel had never specifically instructed him as to his duties.

Immediately upon arriving at the restaurant, Walker fixed himself a large salad, obtained a soft drink and took a seat at the first table in the second row adjacent to the salad bar. After completing his salad, he remained at that table finishing his soft drink and conversing with young Dwayne Thomas about the book which Walker had with him. The entrance was to Walker’s left. Walker’s view of the door and the view of his table by those entering was obscured by the partition located just inside the door and running parallel to the counter.

Despite the many witnesses in the crowded restaurant, the ensuing sequence of events is not entirely clear. About 10:00 P.M., a masked robber carrying a hand gun entered the main door without seeing Walker and went to the cash register at the serving counter. Walker was looking down adjusting his belt. The first robber “definitely wasn’t looking my [Walker’s] way when he walked in.” Thomas alerted Walker, who looked up and reached for his revolver, whereupon another robber walked past the end of the partition and pointed a sawed-off shotgun at Walker saying “don’t move, pig”. Although Officer Walker had a hand on his weapon, the robber knew he had the “ups him.” Walker moved to his right, and Thomas dived to the floor behind Walker’s chair. The shotgun fired. Ronald Ailsworth, who is serving a life sentence at Angola for second degree murder said he fired the shotgun in response to a shot from Walker. Although there was some corroboration for Ailsworth’s account, the witnesses closest to the scene, including Walker and Thomas, agreed that the shotgun fired first. The blast wounded Walker in the shoulder, hit Zina Harris in the head, and killed Veletter Harris, the latter two being in the line of fire behind Walker. Walker fell to the floor, pulled his gun, killed one of the robbers and wounded another. A third armed robber escaped and was never apprehended. According to Ailsworth, the robbers were not expecting a guard at the Pizza Hut; he had been told none would be present.

The expert testimony was that the primary purpose of a security guard is deterrence of crime by a visible presence. Plaintiffs’ expert emphasized that essentially a security guard should not eat on duty; he should be visible to people outside by sitting on a stool near the door or being on a walking patrol. Defendants’ expert said the highest degree of security would consist of an armed uniformed police officer in plain view. When pressed about which table a guard should take if he ate, the experts disagreed about whether Walker's position in the restaurant was an appropriate selection. According to plaintiffs’ expert, Walker’s position in the restaurant was very poor from a security aspect. Defendants’ expert testified that Walker’s seat was the best place for a security guard to sit and eat a salad. One expert said that a guard temporarily off duty for eating or toilet purposes should be in an obscure place because there is no deterrence during that period of “down time”. All the experts agreed that an officer with a shotgun pointed at him should not move, his only option being to follow the instructions of the man with the shotgun. The police owe an obligation to innocent citizens and may not open fire if it creates a substantial risk of harm to innocent by-standers. When officer Walker moved, he acted contrary to the experts’ opinions of what his trained reaction should have been. According to the testimony, the probability is that no one will get shot in a commercial robbery if there is no resistance. However, officer Walker testified that if a gunman caught him by surprise, he would still “try to pull my gun.” Ted Brister, an expert in the use of deadly force by police officers, stated that he had trained Maxie Walker at the New Orleans Police Academy. He agreed with other experts that if Walker had gone for his weapon, he would have invited the firing of the shotgun and escalated the violence. Prior robberies of the Pizza Hut had been “quiet” ones.

In answers to interrogatories, Pizza Hut submitted the report of its district manager which stated that the store had been robbed or burglarized more than twenty times. It was robbed on November 11, 1978, and again on November 19, 1978, but was not robbed again until March 17, 1979, possibly because security officers were utilized beginning on November 24, 1978.

Mark Osborne testified that the records of the New Orleans Police Department indicated seven previous instances of criminal activity at the Pizza Hut from January, 1976, to the date of the fatal shooting. Most were armed robberies, which occurred between the hours of 9:00 and 10:00 P.M.

COURT PROCEEDINGS

Suits were filed by the survivors of Vel-etter Harris and also on behalf of Zina Harris. The pleadings, as amended, alleged some twenty claims of negligence on behalf of Pizza Hut and its employees, including the security guard, Maxie Walker. As tried and argued, the claims of negligence are essentially three, namely that: (1) the security guard was negligent in drawing his gun and firing it before the shotgun blast, (2) in moving and provoking the robber to fire the shotgun, and (3) in being seated inside the restaurant, being inattentive, visiting with other employees and perusing a book, rather than being at the door of the restaurant or outside the door of the restaurant in a position where he would have been seen by potential robbers and deterred the crime.

The jury was given interrogatories which asked whether Walker was negligent, whether his negligence was a cause-in-fact of the plaintiffs’ damages and, if so, the amount of damages sustained.

The jury replied affirmatively to the first two questions. Zina Harris, the wounded daughter, was awarded $50,000 for her physical injuries. Six of the Harris children, including Zina, were awarded $50,000 each for the death of their mother. Two of the children were awarded $65,000 and one was given $80,000. As to Henry Harris, the estranged husband of Veletter Harris, the jury found no damages. Appropriate judgments were signed by the trial court, and the defendants appealed to the Court of Appeal, Fourth Circuit.

The court of appeal concluded that officer Walker did not fire first, that he did not move after being ordered not to do so by the robber with the shotgun, and that the robber fired without provocation. The court of appeal held:

“Because we do not find that the actions of Officer Walker, either prior to or during the robbery, can form the basis for a finding of liability for plaintiffs’ harm, we must reverse the judgment of the trial court.” 445 So.2d 756 at 762-763.

PERTINENT LAW FROM OTHER JURISDICTIONS

This court has not previously decided the questions presented. However, other jurisdictions have considered similar problems.

The issue of a business establishment’s liability to a patron for criminal assault by a third party is discussed in Banks v. Hyatt Corporation, 722 F.2d 214 (5 Cir., 1984). Although Banks dealt with an innkeeper’s liability, any business which invites the company of the public must take “reasonably necessary acts to guard against the predictable risk of assaults.” 722 F.2d 214 at 227. Also see Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623 (Tex.App., 1979). A business proprietor owes a duty to those entering its premises to provide a reasonably safe place. Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982). In Butler security was also being furnished through the services of an off duty police officer, and a jury verdict for plaintiff was affirmed despite the lack of expert testimony as to the appropriate standard of care. As in this case, there was a question of placement involved and Butler holds that a security guard who is not properly positioned to respond to foreseeable attacks can furnish a basis for liability.

A duty of protection which has been voluntarily assumed must be performed with due care. Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331 (1983). Whether violence which results from the breach of such a duty is reasonably foreseeable and a cause-in-fact of an injury to a third person is a jury question. Lay v. Munford, Inc., 235 Ga. 340, 219 S.E.2d 416 (1975), reversing Munford, Inc. v. Lay, 134 Ga.App. 642, 216 S.E.2d 123 (1975). Also see Gomez by and through Munoz v. Ticor, 145 Cal.App.3d 622, 193 Cal.Rptr. 600 (1983). “An expert’s opinion based on facts in evidence is sufficient proof of causation.” Mullins, supra, 449 N.E.2d 331 at 339. A business which undertakes to hire a security guard to protect itself and its patrons is liable for physical harm which occurs because of negligence on the part of that guard. Tucker v. Sandlin, 126 Mich.App. 701, 337 N.W.2d 637 (1983). When a security guard fails to act in accordance with established policies and procedures and that negligence is a substantial factor in bringing about injury to a third party, it can support a jury finding of causation. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901 (Tex., 1980).

DUTY-RISK ANALYSIS:

Louisiana has for some time employed the duty-risk analysis to determine legal responsibility in tort claims.

The pertinent inquiries are:
I.Whether the conduct of which plaintiff complains was a cause-in-fact of the harm;
II.Whether there was a duty on the part of the defendant which was imposed to protect against the risk involved;
III. Whether there was a breach of that duty; and
IV. Damages.

I. CAUSE-IN-FACT:

The jury found, in answer to a specific interrogatory, that officer Maxie Walker’s negligence was a cause-in-fact of plaintiffs’ harm. Dean Prosser has wisely observed that the determination of cause-in-fact can be made as ably by the average citizen on a jury as by the most learned of judges. This thought is part of the Louisiana tradition which gives great deference to the findings of the trier of fact, be it jury or judge. Canter v. Koehring Company, 283 So.2d 716 (La., 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978), on remand 370 So.2d 1262 (La.App. 3 Cir.1979), writ denied 374 So.2d 660 (La., 1979).

However, a troublesome problem illustrated by the present case is that the reviewing court often does not have the advantage of knowing exactly what act or omission the jury found to be a cause-in-fact.

As noted above, the charges of negligence against Walker boil down to the claims that he shot first; that he failed to be in a proper position, at or near the door, as a visible deterrent to potential armed robbers; and that, when confronted with the shotgun, he moved provoking the robber to fire the fatal shot.

If the jury found that the evidence supported the allegation that Walker shot first, the conclusion would be simple and direct that he instigated gun play inside a crowded restaurant and the liability of defendants would be clear.

Defendants argue and the court of appeal found that the record does not support the theory that Walker shot first. Indeed, counsel for plaintiffs do not argue this point strenuously and the record, while it contains some evidence that Walker fired first, cannot be said to fairly preponderate toward that conclusion. If the question of the first shot were the only one under review, the court of appeal judgment should be affirmed.

However, there were various derelictions of duty by Walker as a security guard prior to the shooting. The jury could well have found that the officer’s conduct was a cause-in-fact of the resulting harm. There is considerable expert testimony concerning security guards. The experts all agree that officer Walker should have maintained a high visibility. Common-sense confirms the lay and expert testimony; potential robbers who see an armed and uniformed police officer guarding the door of a restaurant are unlikely to attempt criminal activity at that location.

The Pizza Hut was in a high crime area. Although Walker had no actual notice that 9:00 to 10:00 P.M. was a peak danger period, the Pizza Hut’s knowledge of this fact would be imputed to him. A robbery was reasonably forseeable and more probable than the ordinary random crime. There was evidence that the hiring of a security guard had resulted in an interruption of criminal activity and that this particular armed robbery would not have occurred if the robbers had known that a security guard was present. The jury may well have concluded that the security guard who was hired to protect the patrons and property of the restaurant was negligent in carrying out his duties by failing to station himself at the door or just outside the door of the restaurant.

There is also the matter of the guard moving in the face of the shotgun. While the record shows that the Thomas youth moved just prior to the blast, the evidence also preponderates to the effect that officer Walker moved at this point. Walker’s own statements and testimony support this conclusion. While it is difficult to fault a man in Walker’s perilous situation, there was certainly sufficient evidence from which a jury could have concluded that Maxie Walker’s reaction to the leveled shotgun was negligent and resulted in the death of Veletter Harris and the injury to Zina Harris.

Therefore, there is a view of the evidence on which the jury could have found conduct by Walker which was a cause-in-fact of the shooting.

It is true that the shooting was apparently an intentional act on the part of the robber. However, applying the “but for” test, one concludes that, but for Walker’s lack of visibility, the robbers would not have entered the Pizza Hut, and, but for Walker moving when ordered not to do so by the robber, the shotgun probably would not have been fired and the harm would not have resulted. It follows that the court of appeal was wrong in substituting its judgment for that of the jury as to Walker’s conduct being a cause-in-fact.

II. DUTY:

The next question is whether there was a duty owed to the Harris’ by the defendant Pizza Hut which protected against the risk involved.

Duty is a question of law. Generally, there is no duty to protect others from the criminal activities of third persons. Restatement of Torts Second, § 314 (1965); Prosser Law of Torts, § 33 at pp. 173-174 (4th Edition, 1971). However, when a duty to protect others against such criminal misconduct has been assumed, liability may be created by a negligent breach of that duty. Restatement of Torts Second, § 324A; Prosser, supra, pp. 174-176. Respondents correctly point out the deficiencies of the interrogatories propounded to the jury by the trial court. The interrogatories inquired only whether Walker was negligent, whether his negligence was a cause-in-fact of the injuries, and the amount of the damages. The trial court should have instructed the jury as to the duty owed by the Pizza Hut to its patrons and should have inquired whether there had been a breach of that duty.

The duty was to provide the patrons with a reasonably safe place to purchase and consume food.

The circumstances establish that this armed robbery was foreseeable and more than a mere possibility. The guard was there to prevent financial loss to the restaurant, assure the patrons that the premises were safe, and otherwise create what turned out to be an illusory impression of security. It is unnecessary to decide how many prior criminal acts create a duty to hire a private guard because the Pizza Hut had recognized that the risk of crime on these premises was sufficiently foreseeable to require special protection. Whether this Pizza Hut had a duty to hire security guards is irrelevant. There was a security guard. Since the Pizza Hut was furnishing security through the services of a trained police officer, the question is whether the security guard breached his duty by adequate measures to protect those on the premises. Thus, the question is not whether the Pizza Hut was required to have a security guard on the premises, but whether its security guard breached the applicable standard of care. The Pizza Hut had already accepted the duty of hiring a security guard on the date of the shooting between the hours of 9:00 and 1:00 A.M. Once employed, the security guard was under a duty to discharge his obligations in a reasonable and prudent manner, and especially not to contribute by his act or omission to an escalation of violence during an armed robbery which resulted in patrons being wounded and killed.

Therefore, while it would have been preferable for the trial court to have charged the jury as to what duty Pizza Hut had toward its patrons, the duty existed as a matter of law and the third inquiry is whether there was a breach by negligent conduct.

III. BREACH OP DUTY:

The inquiry is whether the duty was violated, but there is also a requirement that the breach must be negligent, substandard or blameworthy. The answer to this question is intertwined in the consideration of causation. Where a duty has been assumed to provide a security guard, it is necessary to decide whether that guard was acting with reasonable care in preventing the harm incurred.

Walker’s breach of the duty owed to the patrons is established by the record. Walker was hired to deter crime; he was not hired to take a “salad break” during the period of greatest danger at the restaurant, that is, between 9:00 and 10:00 P.M. He was not hired to sit inattentatively among the customers; he was not hired to converse with Thomas; and he was not hired to bring or read books on the job. Failure of Walker to be alert and visible at the time of the crime constituted a breach of his duty to patrons of the Pizza Hut. Further, the expert testimony established that his movement in the face of the shotgun was a breach of his duty to others in the restaurant.

IV. ACTUAL DAMAGE:

That the plaintiffs suffered actual damage is not open to question. The parties have not argued quantum and the amounts awarded appear to be within the discretion of the jury.

Therefore, for the reasons assigned the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

MARCUS, J., dissents.

DENNIS, J., concurs with reasons.

BLANCHE, J., dissents and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

As the amicus briefs of the Louisiana Restaurant Association and the Louisiana Trial Lawyers Association indicate, there is need to stress that this is an ordinary negligence case. Although the majority’s holding is based on the ordinary negligence of the security guard, its dicta discusses other theories unnecessary to a decision in this case. Because I am not prepared to adopt those theories as being generally applicable to restaurants in this state, I concur on the basis of a negligence theory.

Pizza Hut conceded that the security guard was its employee who was acting in the scope and course of his employment at the time of the robbery. T.R. vol. 5, p. 17. There was ample evidence from which the jury reasonably could have found that the security guard’s actions and omissions created an unreasonable risk of harm to the customers: The guard chose the peak robbery hour to sit with a salad and book behind a partition socializing with customers (T.R. vol. 5, pp. 31-55); he inattentively allowed the robbers to enter and get the drop on him (T.R. vol. 5, pp. 79-80; 84-85); he moved and provoked gunfire by the robbers (T.R. vol. 6, pp. 39-43; pp. 165-168). The jury also reasonably could have found that but for the guard’s negligent acts there probably would have been no gunfire into the customer area fatally wounding the plaintiffs’ deceased.

One unusual feature of this negligence case is that the restaurant had been the scene of several previous armed robberies, four of seven during the very hour in which the security guard was relaxed and inattentive. Thus, during this peak robbery period, the guard was held to a very high standard of care, with which he obviously failed to comply. Moreover, this is not a case in which a security guard simply was unable to protect customers from criminal activity but one in which the guard’s negligence was of such magnitude that he created a greater risk of harm to customers from criminal conduct than would have existed had there been no security guard at all.

BLANCHE, Justice

(dissenting).

In granting recovery to these plaintiffs, the majority holds that a restaurant owner who hires a competent professional security guard is negligent unless the guard stations himself at a position outside the restaurant where he may be clearly visible to all potential armed robbers. This rule of law is solidly grounded in the court made infallible premise that all would-be armed robbers will unquestionably retreat upon seeing a single security guard stationed outside the restaurant. The majority further holds that it is negligent for a security guard while on duty at a restaurant to eat at a table inside the restaurant because while the guard is inside, potential armed robbers are unable to clearly view the security guard until after they enter the premises. This rule evidently requires guards hired by a business to be on duty without a break because one never knows when a robbery may occur. Finally, the majority concludes that a security guard, who moves no matter how slight, after a shotgun is placed in his face and warned not to move by an armed robber, is a cause-in-fact of all parties injured when the gunman intentionally fires his weapon at him. This rule would require the guard to remain motionless during the perpetration of an armed robbery and would find him negligent if he either acts in his own interest of self-preservation or in consequence of his duty to prevent the robbery.

Considering the unpredictability of human reaction under such stress, the rule really makes the security guard the insurer of everyone’s safety during the course of an armed robbery. If he moves and someone is injured, he will be responsible for inciting violence, and if he freezes and does nothing to prevent the robbery or protect the customers and someone is injured, he will also be negligent for failing in his duty.

Pizza Hut ought to be able to hire a competent security guard for the safety of its customers, without becoming an insurer of their safety. Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir.1973). Nonetheless, this is the result reached here, even though Pizza Hut satisfied its duty to provide reasonable safety for its customers by hiring a competent, professional security guard. This guard was in fact later given a written commendation and a medal of merit for the manner in which he performed during the robbery. Furthermore, the sole legal cause of the injuries to plaintiff was not the fault of the guard. That cause was the intentional conduct of the gunmen. It is highly speculative that Officer Walker’s presence whether outside or inside the restaurant would have prevented this robbery which was planned several days in advance. Officer Walker had a duty to take reasonable care for the safety of the Pizza Hut patrons. He did not breach that duty by provoking the robber to shoot at him. To the contrary, Officer Walker satisfied his duty to the highest degree.

Therefore, I respectfully dissent.

      . Although Ms. Harris' name is spelled Valetter in the pleadings and Valletter in the court of appeal opinion, her certificate of marriage says "Veletter", and she signed her name as “Velet-ter” on the birth certificates of her children.

      . Dwayne Thomas was a casual employee of the Pizza Inn but was not in the course of his employment at this time.

      . .Photograph D-3 indicates that the partition was solid up to about shoulder height and from there to the ceiling was composed of wooden lattice work.

      . Vol. V, p. 129.

      . Vol. IX, p. 47.

      . Vol. VI, p. 104.

      . The court of appeal erred in saying: “Officer Walker did not move ... until after the shotgun was fired." 445 So.2d 760. The weight of the evidence is to the contrary. At trial, Walker first testified that he did not move after the robber with the shotgun ordered him to remain still, but his prior testimony was read to the jury wherein he said he was “just kind of moving to the right real fast.” (Vol. V, p. 118) Officer Walker explained this by saying that he may have been moving “ever so slightly to the right.” (Vol. V, p. 122) He then clarified these two statements by admitting that he did move “ever so slightly to the right” seconds after the subject with the shotgun told him not to move. (Vol. V, p. 123) At trial, Thomas said Walker moved slightly to the right out of the line of fire. In connection with the criminal prosecution of Ronald Ailsworth on January 24, 1980, two years prior to these proceedings in November of 1982, Thomas stated as follows:
      “Maxie moved and the guy shot.” (p. 65, Harris # 4)
      And:
      “Q. The man said, ‘Don’t move, but officer Walker did, in fact, move and that’s when the shotgun went off?
      “A. Yes, sir.
      “Q. But for five seconds he held the shotgun there and he did not shoot?
      “A. Yes, sir.
      “Q. He only shot after officer Maxie Walker started to move?
      ’ “A. Yes, sir.” (pp. 76-77, Harris # 4)

      . Two customers, Reshell Johnson and Walter Joseph Reddick Jr., both said Walker fired first. Several others testified to the contrary. There was also evidence that Herbert Sentino, rather than Ailsworth, carried the shotgun. Sentino was killed during the robbery and his body was found outside the door with the shotgun near one foot. A .25 caliber pistol was also found outside the door of the Pizza Hut. According to Ailsworth, he was carrying the shotgun before he dropped it outside the door and Sentino had the pistol.

      . Many of the witnesses only saw two of the three masked armed robbers. One went to the back room where he confronted the assistant manager and two other employees. According to Ailsworth, he was the third armed man to enter the Pizza Hut and he did not understand how his two confederates had missed seeing the policeman. Walker thought the robber with the shotgun was the second one to enter the restaurant, and the third one “had to have come in behind number 2, the guy with the shotgun.” (Vol. V, p. 84)

      . Vol. V, p. 21.

      . Depo., Denise Jackson, assistant manager, p. 43.

      . The court of appeal relied principally on Pennington v. Church’s Fried Chicken, Inc., 393 So.2d 360 (La.App. 1 Cir.1980) and Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4 Cir.1979). Pennington held that a fast food store was not required to provide a security guard or warn against the possibility of purse snatching; Roberts held there was no liability by a convenience store when a customer was killed who undertook to fight with armed robbers. These cases differ from the present matter in that the claims of negligence here are against a security guard hired to protect the patrons.

      . See Crowe, "Anatomy of a Tort”, 22 Loy.L. Rev. 903; Robertson "Dialogues on Hill v. Lundin”, 34 La.L.Rev. 1; Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La., 1984).

      . It should be noted that officer Walker conducted himself bravely and heroically once the shooting started. The police officers' awards committee gave him a written commendation and medal of merit.

      . Restatement of Torts, Second, § 314 (1965) provides:
      "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." See also Prosser Torts, § 33 at 173-174.

      .Amicus, the Louisiana Restaurant Association, suggests to the court that a decision for plaintiffs would impose on every restaurant in Louisiana the duty to provide a security guard. The issue of whether a restaurant which had suffered a large number of armed robberies and possibly injury to patrons would come under such a duty is left for decision at another time because here Pizza Hut had concluded that it was necessary for protection of its property and its patrons to hire a guard.
      Amicus chiefly argues what has been called by Professor Crowe (supra, footnote 13) as the "economic” factor entering into the decision of whether there is a duty. In other words, they are suggesting that having to provide a security guard would place an impossible economic burden on the restaurants of the state. By recognizing the duty to provide a safe restaurant, this court is not declaring that all restaurants must have security guards or that an unbearable economic duty must be borne by the restaurants of the state. Indeed it is common knowledge that there are many restaurants which do not require more protection than can be given by the duly constituted police authorities; on the other hand, it is obvious, particularly in New Orleans, that many restaurants feel the need for guards to reassure their patrons and protect their property.

      . See Crowe, supra, 22 Loy.L.Rev. 903 at 912.

      . See Robertson, supra, 34 La.L.Rev. 1 at 22.


author: DIXON, Chief Justice DENNIS, Justice,

text:
    Emile L. TURNER, Jr. v. Helen Ruth Gubbels TURNER.
    No. 84-C-0557.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.

      Thomas M. Young, New Orleans, Harry R. Cabral, Jr., H. Craig Cabral, Cabral & Cabral, Metairie, for plaintiff-applicant.
    A.D. Freeman, Satterlee, Mestayer & Freeman, New Orleans, for defendant-respondent.
   DIXON, Chief Justice

Emile and Helen Turner were divorced in January, 1980. The divorce decree gave custody of the couple’s minor children, including the twin boys who are now nearly eight years old, to the mother. Since that time, numerous rules have been filed in the trial court which sought to change the original custody order; many changes have, as a result, been made. The most recent order, dated April 27, 1983, provides for joint custody of the boys for one year periods, alternating each year on July 15. The noncustodial parent is granted holiday and other visitation privileges. The father appealed the joint custody order and the court of appeal affirmed the ruling of the trial court. Turner v. Turner, 445 So.2d 35 (La.App.1984). From that affirmance the father applied for a writ of certiorari, which we granted. Turner v. Turner, 449 So.2d 1342 (La.1984). A motion for a stay of the April 27 judgment, filed by the mother — the custodial parent at the time of oral argument before this court — was filed in this court immediately before argument, and was denied. We reverse.

On .March 22, 1979 Emile Turner filed a petition for separation from Helen, his wife of twenty years. The husband left the marital domicile some time earlier, and listed in his petition several reasons for his leaving, including “constant criticism regarding the handling of the children.” In August, 1979 plaintiff supplemented his petition, and, alleging that he and his wife had lived separate and apart for more than one year, converted the prayer into one for divorce. The judgment of divorce was rendered in January, 1980.

Later, following the divorce, Helen Turner was judicially committed to a psychiatric hospital in Dallas, Texas; since her release she has been taking medication and undergoing regular therapy to help control her condition. Emile has remarried, and now lives with his new wife and her children by a former marriage.

From the time of the filing of the original petition the parties have been in court frequently. Emile Turner has filed several rules for contempt against Helen, alleging, inter alia, that Helen harassed him and his employees at his place of business, that she improperly moved back into the community domicile, and that she violated several court orders relating to visitation rights and child custody.

Of importance in this case is the history of the child custody arrangements which have been established by the trial court. Initially, after the filing of the original petition for separation, the parties entered into a consent judgment whereby the mother was given temporary custody of the minor children. The judgment of divorce made the custody permanent, subject to the visitation rights of the father. After Helen’s commitment to the mental facility, the father obtained provisional custody of the children during her stay at the institution. Later, while the mother remained at the institution on a voluntary basis, the father moved to obtain permanent custody of the children. The request was granted. Upon her release, the mother was granted visitation rights by the father — not by court order — -but the father later charged that the mother violated her privileges. The court, in the summer of 1981, fixed the mother’s visitation rights. As part of that order, Helen Turner was allowed to visit the children between the hours of 9:00 a.m. and 6:00 p.m. at the former marital domicile, which, by the same court order, was exclusively the father’s residence. Shortly thereafter, the father sought a restraining order against the mother; she had returned to the former marital domicile and refused to leave, keeping up a pretense of maintaining a family environment. The court ordered Helen to vacate the premises. Later in 1981, another rule for contempt was filed against the mother, claiming that she continued to remain at the house, in violation of the earlier court order.

The mother sought to regain the custody of her children by filing a rule in January, 1982. The trial court, with a new judge sitting, held the matter open pending an environmental investigation. The report was completed, but because the trial judge chose not to let the parties examine it, it was not made a part of the record.

In April, 1982 the father remarried, and he and his children took up residence with his new wife and her children by a previous marriage. In July the mother sought a temporary change in custody pending a final decision on the request for a permanent change. In response, the father again sought to establish the mother’s visitation rights. The court ordered that the mother could visit the children on alternate weekends, and between 3:00 and 7:00 p.m. on Tuesdays and Thursdays. In November, 1982 the judge rendered a final judgment on the January request, denying the mother’s request for custody. In December, the judge ruled on the visitation issue, and increased the mother’s • visitation rights to include all night on Tuesdays and Thursdays.

In the early part of 1983 the father filed a rule to abolish the overnight visitation during the school year which had been granted to the mother, arguing that such activity was detrimental to the children. The mother answered the rule with one of her own: pursuant to La.Acts 1982, No. 307, § 1, the mother sought a judgment of joint custody of the children. In March the trial court, with yet another judge sitting in the case, granted joint custody to the parents. The basic award was that the father would have physical custody of the children during the school year, and the mother would have custody during the summer months. Both parties applied for a new trial, which the trial court granted, stating that a new trial would have been granted in the matter of its own motion. As a result of the new trial, the judge modified his judgment. The April, 1983 custody award continues the joint custody arrangement, but instead of splitting the year into two parts, the trial judge awarded physical custody of the children to the parents for alternating one year terms, commencing with July 15, 1983. Each parent thereafter would have physical custody of the twins for a full year, subject to the visitation rights of the other parent: three weekends each month, plus alternating holidays. It is from that custody award which the father appealed.

The court of appeal ruled that the trial court was correct in its judgment, and that it did not abuse its discretion in making such a custody award. From that judgment, the father alone sought writs from this court.

According to C.C. 157, as amended, “[i]n all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.” Article 146 provides:

“A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
(1) To both parents jointly. The court shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. A plan of implementation shall allocate the time periods each parent shall enjoy physical custody of the children and the legal authority, privileges and responsibilities of the parents. The plan may also include such considerations as the following:
(a) Designation of the child’s legal domicile.
(b) Rights of access and communication between the respective parents and the child or children.
(c) Child support....
(d) Any other matter deemed in the best interest of the child or children.
(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent’s sex. The burden of proof that joint custody would not be in a child’s best interest shall be upon the parent requesting sole custody.
(3) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
(4) To any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment.
C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child.
(1) However, the parents may agree to any award of custody to one parent.
(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
(3) For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.
D.For purposes of this Article, ‘joint custody’ shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage. In making an award of physical custody, the court shall consider, among other things, the factors enumerated in Paragraph (C)(2). Joint custody shall also mean that the parents shall enjoy the natural co-tutorship of such children in accordance with Article 250, subject to the plan of implementation effected pursuant to Paragraph A of this Article. Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents. An award of joint custody obligates the parties to exchange information concerning the health, education, and welfare of the minor child; and, unless allocated, apportioned, or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities, and authority.
E. Any order for joint custody, or any plan of implementation effected pursuant to Paragraph A of this Article, may be modified or terminated upon the petition of one or both parents or on the court’s own motion, if it is shown that the best interest of the child requires modification or termination of the order. The court shall state in its decision the reasons for modification or termination of the joint custody order if either parent opposes the modification or termination order.
F. Any order for the custody of a minor child of a marriage entered into by a court in this state or in any other state, subject to jurisdictional requirements, may be modified at any time to an order of joint custody in accordance with the provisions of this Article.
G. A custody hearing may be held in private chambers of the judge.
H. Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including but not limited to medical, dental, and school records, shall not be denied to a parent because the parent is not the child’s custodial parent.”

Issue has been taken with the applicability of C.C. 146 to the present case, since the judgment of divorce was rendered prior to the effective date of the amended article. Reference to C.C. 146(F), however, resolves the matter. That subsection provides that any existing custody orders may be modified to joint custody orders under the new article. Since the case before this court involves a request for, and judgment of, joint custody, the matter is governed properly by the amended article. See also C.C. 157.

The appropriate standard to be applied by the trial court in determining the custody of a child of a dissolved marriage is that of the “best interest of the child.” This standard is repeated throughout article 146, and is the sole criterion to be met in making the award.

The trial judge sits as a sort of fiduciary on behalf of the child, and must pursue actively that course of conduct which will be of the greatest benefit to the child. It is the child’s emotional, physical, material and social well-being and health which are the judge’s very purpose in child custody cases. He must protect the child from the harsh realities of the parents’ often bitter, vengeful, and typically highly emotional conflict. The legislature has mandated that the judge shall look only to the child’s interests.

In furtherance of this important goal, the court has been vested with broad and independent powers. It may, for example, order that an investigation be conducted into the home lives of the parties, the psychological health of the child, or into any other factor which the judge deems to be important in his determination of the child’s best interest. C.C. 146(C)(3). In this way, the court can fulfill its obligations to the child.

The legislature also established a list of preferred custodial arrangements: to both parents jointly, to either parent, to the person in whose home the child has been living, or to any other person deemed appropriate by the court, C.C. 146(A)(1) — (4), provided that any award to a non-parent can be made only when there has been a finding that continued parental custody would be detrimental to the child. C.C. 146(B). Whatever choice is made by the trial court, the determination must be made in the child’s best interest.

The legislature, furthermore, went beyond the mere establishment of a guiding list, and established the rebuttable presumption that joint custody arrangements would be in the child’s best interest. C.C. 146(C). This presumption has caused some confusion. Some lower courts seem to believe that the article requires granting joint custody. Such is not the case; the article clearly provides that there is only a presumption in favor of joint custody, and that it may be rebutted upon a proper showing that a different arrangement is in the child’s best interest. Such a showing now must include a consideration of eleven specific, enumerated factors, plus any “other factor” which the trial court deems to be •relevant. C.C. 146(C)(2)(a)-(Z ). Article 146 provides further that “the burden of proof that joint custody would not be in the child’s best interest shall be on the parent requesting sole custody.” C.C. 146(A)(2). This provision does not create any extraordinary burden on the party requesting sole custody.

As in any matter in which there is a rebuttable presumption, the burden rests with the party challenging the presumption to convince the fact-finder that his proposed conclusion is more correct than the presumed one. A presumption does not have any probative value, but merely provides the fact-finder with a conclusion in the absence of proof to the contrary. See 9 J. Wigmore, Evidence § 2491(3) (3d ed.). “Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear.” Lincoln v. French, 105 U.S. (15 Otto) 614, 617, 26 L.Ed. 1189 (1881).

The article 146 presumption only compels the judge to award joint custody in those cases where other things are equal; or where there is insufficient evidence to rebut the presumption; or whenever neither parent alone would be able to manage a sole custody arrangement, and where it cannot be shown that it would be detrimental to the child to remain in parental custody. Effectively, the presumption only provides the judge with a first choice, which choice must be rejected in the face of evidence which tends to disprove the conclusion. In such a case, it becomes necessary for the other party to reestablish the propriety of the presumption’s conclusion.

There is but one element upon which the trial court cannot base its decision. Article 146(A)(2) expressly forbids the judge from “prefer[ring] a parent as the custodian because of that parent’s sex.”

In the present case the custody of the children has been the subject of much litigation. Since the initial filing for a separation by the father, custody has gone from the mother’s provisional custody, to her permanent custody, to the father’s temporary custody, to his permanent custody, to two versions of joint custody. As was brought out in oral argument, the mother has filed yet another rule seeking to change the custody arrangement. Visitation rights have gone from the father’s rights on alternating weekends and holidays, to the mother’s alternating weekends and holidays plus Tuesday and Thursday nights, to the present three weekends per month plus alternating holidays for the non-custodial parent, with a broad spectrum of variations in between. The court orders relating to custody and visitation have been the subject of rules for contempt and injunction.

Aside from the physical custody of the children, the parents also have been unable to agree on how the children should be brought up. The amount of time that each thinks should be spent with the children varies greatly. The tutoring of one of the boys has become a point of contention, with the mother thinking that she should do it herself, and the father hiring a trained instructor. There also are apparent differences in the discipline of the children: the mother cleans up after her children, but the father makes them clean up after themselves.

Based on the extensive history of the litigation in this matter, as well as the bases for much of the litigation, it is clear that the parties are unable to settle their differences amicably, or to insulate the children from their battles. The conflicts between the father and the mother run deep, and it is doubtful that any order of any court could quell entirely those conflicts. Unfortunately, the children have been caught in the crossfire. It is for this very reason, when the parents are of such divergent views and lead such different lives, that the legislature mandated that the court look only to the child’s best interest, and not to whatever interests the parents may have. This type of case is precisely one of those “other factors” within the scope of C.C. 146(C)(2)(¿ )• The child is an innocent, unrepresented third party in divorce cases, and should not become a victim of the battle, nor a part of the community to be partitioned.

Looking at the record as a whole, it can be established that the presumption in favor of joint custody has been rebutted, and it is clear that the children’s best interest cannot be served by a joint custody arrangement, or by allowing such extensive visitation privileges as to amount to joint custody. The twin boys are in their formative years right now, and it is essential that they have a single authority upon which they can base their behavior and development. Since the parents practice such differing views on the rearing of these two boys, and are, apparently, unable or unwilling to share the responsibilities inherent in raising the children, it is wholly unacceptable to allow them to share the duty. They lack completely any spirit of cooperation, and a continued joint custody arrangement would serve only to stunt the development of these children.

It is this sort of situation for which the court must be alert. In its capacity as a lookout for the child, the court is obligated to consider additional factors such as have been relied upon by this court in this case. The trial court cannot rest on the legislative presumption to solve its case, but must become an active participant in the case. None of this is to say that the trial court should disregard the evidence presented by the parties, or that the trial court should meddle in the affairs of the parties. It also is not intended that parties should refrain from pursuing their legal rights in court for fear that the mere act of litigating will cause them to lose custody. It is intended only that the parties attempt, as best they can, to insulate the children from the battle, and that the children not be used as trading cards between the parents. So long as the children are the prime concern of the parties, nothing in this opinion should restrict their access to the courts in their pursuit to retain or attain custody of their children, which is a natural pursuit of any loving, caring parent. The important thing is not to abuse the children by dragging them constantly through the court system, when there has not been a real change in circumstances sufficient to justify a change in custody. The trial courts should discourage such abuses, and should consider such constant bickering as a sign of conflict between the parents in which one or both of the parties attempts to use the children to further his own wants or needs.

•In the present case the court must determine which of the two parents — without regard for the gender of the parent, and without any regard for the “needs” of the parents — can serve better the best interest of the children. This court recognizes that the parties may challenge any custody decree in a future proceeding, but until such time as the parties can demonstrate their willingness and ability to serve the children in a unified manner, and put their own interests aside, any joint custody award would be in vain.

The judgment complained of, therefore, is vacated, and it is ordered that the case be remanded to the district court for further proceedings to determine which of the two parents is better suited for serving the best interest of the children. The court is ordered not to render a joint custody decree or extensive visitation privileges to the non-custodial parent, absent a clear showing by both of the parties that they are willing and capable of serving the children to the children’s best interest. Pending that determination, provisional custody is awarded to the father. It is ordered further that the court, in its deliberations, not give undue weight to the fact that the children lived with the mother for one year, and have recently begun their one year term with the father. The allocation of costs will await the judgment of the court below.

DENNIS, J., dissents in part and concurs in part with reasons.

LEMMON, J., concurs.

DENNIS, Justice,

concurring in part and dissenting in part.

I agree that the amendments to Civil Code articles 146 and 157 govern this case, and that the presumption that joint custody is in the best interests of the children has been rebutted. I find more persuasive authority for determining the presumption has been rebutted in article 146(C)(2)(j), rather than in the amorphous “[a]ny other factor” the former factor being “[t]he willingness ... of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.”

However, I respectfully dissent from the majority’s remanding of the case for the limited purpose of determining which parent’s exclusive custody would be in the best interests of the children. We should not so tie the hands of the trial judge, who is closest to the parties and their unique circumstances. The trial court should have all the options available, including joint custody, in resolving this dispute. It may appear in the light of further proceedings that a different joint custody arrangement is in the best interests of the children despite our conclusion that the presumption to that effect has been rebutted, because the parties may be able to “reestablish the propriety of the presumption’s conclusion.” (majority opinion at p. 1379). It is possible that the trial court’s present joint custody decree, requiring the parents to split physical custody on a yearly basis, contributed to the parties’ bickering and unwillingness to cooperate in the joint custody arrangement.

      . Prior to the 1981 amendment of C.C. 157, that article provided that custody could be given to either parent, but regard could not be taken of the parent's gender. In 1981 joint custody by agreement was introduced. Both amendments established that the child’s best interest was the standard to be applied. The 1982 amendment omitted the specific legal rules, but instead made C.C. 146 applicable to divorce and separation cases. Since the substantive provision, “best interest of the child,” has been retained in C.C. 146, this court will apply the new C.C. 157 to this case, considering that the recent amendments are stylistic and not substantive.

      . Article 146 was made applicable to divorce and separation cases only in January, 1983, through the 1982 amendment of article 157. La.Acts 1982, No. 307, § 1. Prior to that time, C.C. 146 applied only to child custody pendente lite. The 1982 amendment — the law which was applied by the trial court in rendering its judgment sub judice — created the rebuttable presumption in favor of joint custody, unless "(2) The court finds that joint custody would not be in the best interest of the child.” In 1983 the article was amended again, this time with the legislature enunciating a twelve point checklist of factors to be considered in deciding whether the presumption has been rebutted. Again, the substantive provisions of the law were not changed: the best interest analysis still applied and joint custody still was presumed. The checklist was added as clarifying legislation to provide guidance for the courts, and can be applicable in the present case.

      . This provision was included in the 1982 amendment, and so was operative at the time of the rendering of the April 27, 1983 joint custody decree.

      . Prior to the 1983 amendment, the checklist did not exist. See footnote 2.


author: MARCUS, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Alfred B. SHAPIRO.
    No. 82-B-0018.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreaux, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé,
    Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchetoches, for relator.
    Kathrine S. Williamson, J. Michael Small, Small, Williamson, Brocato & Fournet, Alexandria, for respondent.
   MARCUS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Alfred B. Shapiro, a member of said association. The Committee’s petition for disciplinary action is based upon respondent’s final convictions resulting from a plea of guilty to two counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1).

On September 17, 1980, Alfred B. Shapiro was indicted in the United States District Court for the Western District of Louisiana on one count of conspiracy to distribute and to possess knowingly with the intent to distribute cocaine and on nine separate counts of distribution of cocaine, all in violation of 21 U.S.C. § 841(a)(1). On February 13,1981, a plea of guilty was entered to counts five and eight of the indictment which charged respondent with distribution of cocaine in March and November of 1979. Pursuant to a memorandum of understanding among the parties, the remaining counts of the indictment were dismissed. Following convictions resulting from his plea of guilty to counts five and eight, respondent was sentenced on each count to imprisonment for a period of six years with a five-year special parole term to follow. The trial judge expressly directed the sentences be served concurrently and ordered execution suspended until respondent’s release from state custody.

After respondent’s convictions had become final, the Committee on Professional Responsibility filed a petition in this court on January 5, 1982 seeking an order suspending respondent from the practice of law and authorizing the Committee to institute the necessary disciplinary proceedings. This petition followed a determination by the Committee that the crimes of which respondent had been convicted were final and constituted “serious crimes” reflecting upon his moral fitness to practice law. On April 1, 1982, this court granted the requested order. 412 So.2d 990.

Subsequently, on February 18, 1988, the Committee filed a petition in this court seeking disciplinary action against respondent under the provisions of Article 15, section 8, paragraph (7)(a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association. Respondent filed an answer denying that he was morally unfit to practice law. After issue was joined by respondent’s answer, a Commissioner was appointed by this court. A hearing was conducted on October 31, 1983, at which respondent was afforded full and unrestricted opportunity to. present any and all evidence of “mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted....” In the formal report of the Commissioner to this court, it is stated that the Commissioner found the offenses for which respondent was convicted to be felonies under federal law involving moral turpitude and constituting “serious crimes” warranting disciplinary action, the only question being as to the extent of such discipline. The Commissioner recommended disbarment. The Committee on Professional Responsibility filed its concurrence to the report of the Commissioner.

An opposition to the report of the Commissioner was filed by respondent. The matter was then submitted to this court under our original jurisdiction.

The sole issue to be determined by this court in a disciplinary proceeding based on a conviction of a crime is whether “the crime warrants discipline, and if so, the extent thereof.” Article 15, section 8, paragraph (7)(d) of the Articles of Incorporation of the Louisiana State Bar Association; Louisiana State Bar Association v. Marcal, 430 So.2d 47 (La.1983).

At the hearing before the Commissioner, respondent introduced evidence of mitigating circumstances.

Respondent is now forty-one years old. He is married and has two teenage children. Although he has been separated from his wife since September of 1979, there has been no judicial separation or divorce. Respondent received a bachelor of arts degree and a law degree from Louisiana State University. He was admitted to practice in Louisiana in 1968. After graduation from law school, respondent joined the National Guard and went on active duty with the Army for a short time. In early 1969, he returned to his hometown of Alexandria where he went into private practice with his father and uncle. After about one year, respondent took a position as a law clerk for a federal district court judge, where he served for about eighteen months. He left this position in 1972 to become an assistant district attorney. After four years with the district attorney’s office, where he attained the position of chief prosecutor, respondent returned to private practice in 1976 to join a law firm in Alexandria. Respondent left the firm after two years to open his own law office. In 1978, he ran unsuccessfully for a district judgeship. Respondent has served in an appointed capacity as a temporary judge ad hoc on the city court.

From 1975 to 1978, respondent served without pay as an instructor at the Alexandria Police Academy. During this same time period, he also taught criminal law at Louisiana College. He has served as a member of the indigent defender board and as a member of the executive committee of the local bar association.

In 1978, respondent became involved with Ms. Lavona Ryland. She died in respondent’s apartment in November of 1979 of a gunshot wound. Respondent was charged and eventually convicted of the second degree murder of Ms. Ryland. On appeal to this court, the conviction and life sentence were reversed on rehearing on the ground there was insufficient evidence to support the conviction. State v. Shapiro, 431 So.2d 372 (La.1983) (on rehearing). Respondent has consistently maintained that Ms. Ryland either committed suicide or accidentally shot herself.

In 1977, when respondent’s marriage and his wife’s mental health began deteriorating, he started using drugs. He testified that he used drugs very rarely in 1977 and early 1978. However, from 1978 to the spring of 1980, his drug use increased. He was hospitalized for one day on November 24, 1979 for an overdose of a mixture of drugs. In the spring of 1980, his personal life deteriorated so badly that he began taking large quantities of valium. Respondent spent seventeen days in the hospital in a substance abuse program. He also attended and successfully completed a drug abuse program while he was in the Federal Correctional Institution in Oxford, Wisconsin. Participation in a “drug aftercare program” was made a condition of his parole. At the time of the hearing before the Commissioner, respondent was attending weekly group sessions at the Baton Rouge Substance Abuse Clinic.

Respondent testified as to the incidents that led to his federal convictions for distribution of cocaine. He stated that he used cocaine socially and that its use was a “fad” in his circle of friends. His friends occasionally asked him to obtain cocaine for them. Similarly, when his friends had access to cocaine, they would reciprocate. In the two incidents that led to his convictions, two friends, who were also attorneys, asked respondent to obtain cocaine for them. He complied and sold to each one quarter of an ounce of cocaine. Respondent testified that the sales were made as a favor to his attorney friends and that there was not a profit motive in either sale.

After respondent’s arrest in August of 1980, he voluntarily terminated his law practice. Respondent contacted his clients, made arrangements to return their files and helped them find another attorney. He has done no legal work since then, except paralegal-type work for two Baton Rouge attorneys. Respondent feels remorseful about his conduct and is sorry for the problems it has caused for his parents and children. Also, he is aware of the bad reflection his conduct has had on the legal profession and plans to make amends by conducting himself in a dignified manner.

The Committee produced no countervailing evidence on the issue of mitigation.

We agree with the finding of the Commissioner, concurred in by the Committee, that respondent has been convicted of serious crimes which reflect adversely upon his moral fitness to practice law. Hence, disciplinary action is warranted. We further agree with the recommendation of the Commissioner, concurred in by the Committee, that respondent should be disbarred. Considering the nature of the offenses for which respondent was convicted, his past positions of public visibility and responsibility, his current status of being under parole supervision, and the attendant publicity of this matter, we believe the Commissioner’s recommendation of disbarment is appropriate. Such action is required to protect the public, the administration of justice and the integrity of the legal system. Moreover, disbarment is justified because, upon an application for readmission, respondent has the burden to prove his good moral character, including his freedom from drug use. This is an important consideration because of respondent’s admitted drug problem. However, due to the substantial mitigating circumstances, respondent’s disbarment is made retroactive to the date of our suspension order of April 1, 1982.

DECREE

For the reasons assigned, it is ordered, adjudged and decreed that the name of Alfred B. Shapiro be stricken from the Roll of Attorneys and his license to practice law in the State of Louisiana be hereby revoked effective April 1, 1982, the date of this court’s order suspending him from the practice of law.

      . Respondent served two years of his sentence in the Federal Correctional Institution in Oxford, Wisconsin, a maximum security prison. He was released on parole on July 12, 1983.

      . For a description of the state proceedings against respondent, see State v. Shapiro, 431 So.2d 372 (La.1983) (on rehearing).

      . Article 15, section 8, paragraph (7)(a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association provide:
      (7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
      (a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
      (b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
      (c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
      (d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined'by the statute defining the crime.

      . La. Const, art. 5, § 5(B) (1974).


text:
    Robert A. OTTERMANN v. Thurman W. GANUS.
    No. 84-C-0416.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.
    Arthur C. Reuter, Jr., Reuter, Reuter, Reuter & Pizza, New Orleans, for defendant-applicant.
    Stephen J. Simone, Metairie, for plaintiff-respondent.
   MARCUS, Justice.

The question presented by this case is whether an option to renew a lease was timely exercised. On September 8, 1967, Robert A. Ottermann leased certain commercial property in Jefferson Parish to Thurman W. Ganus. The term of the lease was from October 1, 1967 to December 31, 1982, with an option to renew for ten additional years. The option to renew provided:

As a further consideration for this lease, Lessor hereby grants Lessee an option to extend the period of this lease for a period of ten (10) years from the expiration of the term of the original lease, said extended term to be on the same terms and conditions and at the same rental as set forth herein. In the event Lessee desires to exercise this option to extend the lease for a period of an additional ten (10) years, Lessee shall notify Lessor in writing at least One hundred twenty (120) days prior to the expiration of this lease. (Emphasis added.)

On January 14, 1975, Ganus subleased the property to A. Copeland Enterprises, Inc. for a term of ten years from January 1, 1983 to December 31, 1992, the period covered by the option to renew the lease. On that same date, January 14, 1975, at the request of the attorney representing Copeland, Ganus signed a letter addressed to Ottermann exercising the above-mentioned option to renew the lease. Copeland’s attorney retained this letter, and on February 17, 1975, he sent the letter, which had been properly addressed and stamped, by certified mail to Ottermann. Shortly thereafter, the attorney received the return receipt, which showed delivery of the letter on February 19, 1975. However, the receipt was returned unsigned.

By letter dated January 1, 1983, Otter-mann requested Ganus to vacate the premises, alleging that the lease had expired without a timely exercise of the option to renew. Ganus did not vacate the premises. On February 10, 1983, Ottermann filed a rule for possession. Ganus answered generally denying the allegations of the petition and affirmatively asserted that he had exercised the option to renew on February 19, 1975. Ottermann died a few days before trial of this matter. He was replaced as party plaintiff by his wife, Thelma L. Ottermann.

After a hearing, the trial judge rendered judgment in favor of Mrs. Ottermann and against Ganus, ordering the eviction of Ganus from the leased premises and the delivery of the premises to Mrs. Otter-mann. The judge held that Ganus had failed to carry his burden of proof that Ottermann received written notice that the option to renew had been exercised. Gan-us appealed. The court of appeal affirmed, holding that the trial judge was not clearly wrong to find that Ottermann had not received notice of intent to exercise the option. Upon Ganus’ application to this court, we granted certiorari to review the correctness of that decision.

The issue presented for our consideration is whether Ottermann received Ganus’ written exercise of the option to renew the lease. Since the lease merely provides that the lessee must give the lessor written notice without specifying the means of communication to be used, the choice of the method of transmittal is left up to the lessee. However, in order to constitute effective notice, the lessee must show that the lessor actually received the writing, whatever the form of communication chosen.

In this case, the lessee Ganus proved that the letter was properly addressed, stamped and sent by certified mail and that the letter was delivered. However, because of the absence of a signature on the letter’s return receipt, Ganus must still prove that the letter was delivered to Ottermann. It has been consistently held that a rebuttable presumption of receipt by the addressee arises when a letter has been properly addressed, stamped and mailed. Moore v. Drexel Homes, Inc., 293 So.2d 500 (La.App. 4th Cir.), writ denied, 295 So.2d 812 (La.1974); New Orleans Silversmiths, Inc. v. Wormser, 258 So.2d 592 (La.App. 4th Cir.1972); Sawyer v. Central Louisiana Electric Co., 136 So.2d 153 (La.App. 3d Cir.1961); see Hortman-Salmen Co. v. Continental Casualty Co., 170 La. 879, 129 So. 515 (1930); Pure Oil Operating Co. v. Gulf Refining Co., 143 La. 284, 78 So. 560 (1918) (there is a presumption that a letter properly addressed, stamped and mailed reaches its destination in due time); see also McWilliams v. Reith, 149 La. 298, 88 So. 913 (1921) (no presumption of receipt arises unless proof of postage prepayment is presented). Ganus has established such a presumption because he made out the proper elements of proof, i.e., that the letter was properly addressed, stamped and mailed.

Hence, we must now decide whether Mrs. Ottermann has successfully rebutted the presumption that her husband received the letter. She testified that he did not receive it, but she also said that she did not open his mail; her husband customarily opened his own mail. In addition, Mrs. Ottermann testified that the letter was not in her file on the rental property in question. However, that file contained only a few documents pertaining to expired insurance, two letters and several empty envelopes and was missing pertinent items such as tax receipts and current insurance policies. The evidence presented by Mrs. Ottermann to show that her husband did not receive the letter in question was insufficient to rebut the presumption of receipt established by Ganus. Since Mrs. Otter-mann did not open her husband’s mail, she had no basis for her assertion that he did not receive the letter. Nor was the fact that the letter was not contained in the file dispositive because several other items were also missing from the file. Thus, we conclude that the trial judge was clearly wrong in finding that Ganus did not prove Ottermann’s receipt of the letter. Accordingly, the option to extend the lease was timely exercised. The court of appeal erred in holding otherwise. We must reverse. '

DECREE

For the reasons assigned, the decision of the court of appeal is reversed and judgment is rendered in favor of Thurman W. Ganus and against Thelma L. Ottermann, dismissing the rule for possession of the premises at her cost.

LEMMON, J., concurs.

      . Also on January 14, 1975, Copeland was assigned a sublease on the property for the principal term of the lease (October 1, 1967 to December 31, 1982) by Ganus' sublessee for that term, Plantation Fried Chicken Corp.

      . The original of the green return receipt card was introduced in evidence as Ganus-7. However, this exhibit is not in the record, having apparently been misplaced or lost. Nevertheless, an identical copy of the green return receipt was introduced in evidence by plaintiff (P-4) and is in the record.

      . 444 So.2d 726 (La.App. 5th Cir.1984).

      . 447 So.2d 1075 (La.1984).


author: DENNIS, Justice. LEMMON, Justice,

text:
    LOUISIANA STATE BAR ASSOCIATION v. Edward R. DRURY.
    No. 82-B-2143.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.

      Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreaux, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitoches, for relator.
    Edward R. Drury, New Orleans, in pro. per.
   DENNIS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disbarment proceeding against Edward R. Drury. The basis was Drury’s conviction in federal court of mail fraud. After the conviction, Drury was suspended from the practice of law. A hearing was held before a commissioner appointed by this court. The commissioner verified the conviction and made findings as to some of the surrounding circumstances, but he did not recommend any particular disciplinary action.

FACTS

The charges against Drury arose out of his practice of sending most of his clients with personal injury claims to Dr. Sam Macaluso for treatment and evaluation. The doctor examined the clients and prepared medical reports for submission to insurance companies in furtherance of settling the clients’ claims. Macaluso sent bills to Drury, rather than the patients, and his fees were later subtracted from the ultimate insurance recovery. According to Drury’s testimony at the commissioner’s hearing, Dr. Macaluso kept poor records which caused him to double bill Drury’s clients and to render late bills on many occasions. Drury alleges that after a period of time he realized that he had paid many of his clients’ doctor bills twice, and as a consequence the doctor was in debt to him. The attorney claims that despite problems caused by the doctor’s disorganized billing system he continued to send clients to Macaluso because, unlike some other physicians, Macaluso did not object to seeing them although many were poor, ignorant and unwashed. To provide a check upon the doctor’s propensity to overbill, Drury testified he established a practice of withholding 15% from the payment of each doctor bill. He claimed that he used these funds with the doctor’s permission to offset the doctor’s frequent overbillings that were often discovered only after their initial payment and to compensate himself for administrative costs of handling medical bills. While the clients were aware of and agreed to Drury’s deduction of his fee and the doctor’s bills from their recovery, they were not informed that the lawyer withheld 15% of the medical fees from the doctor. Drury failed to give any specific amount owed by the doctor or to fix a date on which the deductions were to cease. In fact, the 15 percent deduction practice continued from 1975 until 1981 when Drury was indicted by a grand jury on 21 counts of mail fraud and one count of conspiracy to commit mail fraud.

Drury was convicted of 21 counts of mail fraud by a federal district judge, after waiving his right to a jury trial. He was sentenced to five years in prison. After he served four months in confinement in a “jail-type institution,” the balance of his sentence was suspended and he was placed on probation for three years and required to pay a $20,000 fine. The federal court of appeals affirmed the conviction and the district court’s reasoning. United States v. Drury, 687 F.2d 63 (5th Cir.1983).

Drury was charged with one count conspiracy and with defrauding both his clients and insurance companies. He was not convicted of defrauding insurers, and he was acquitted of the conspiracy charge. The federal district court found that Dr. Macaluso charged Drury’s clients the same fee that he would have charged them had they approached him of their own initiative, and that he rendered the same degree of care in treating them. The trial judge noted, “[njone of the medical reports were false in the sense that they described treatments that did not occur or injuries that the patient had not, in fact, suffered.”

The committee urges this court to disbar Drury in view of his final conviction; his breach of fiduciary duty, including depriving his clients of the right to retain an attorney not engaged in blatant violation of the Code of Professional Responsibility; and for his acting with specific intent to defraud his clients.

Drury argues that the basis for his mail fraud conviction, as reflected by the judge’s reasons, was the judge’s finding that Drury violated disciplinary rule 5-107. The respondent admits that he stands convicted of a federal felony, but he expresses doubt that he violated DR 5-107 since he claims its meaning and applicability to this case are uncertain.

According to the federal district court’s opinion, conviction of a violation of the federal mail fraud statute requires proof of the existence of (1) a scheme to defraud; and (2) use of the mails for the purpose of executing the scheme. Under the jurisprudence of the Fifth Circuit and other federal courts of appeals, schemes to defraud fall into two general categories: In the first, the object of the scheme is to deprive the victims of money or other valuable personal property. In the second, the scheme operates to deprive the victim of valuable intangible rights or opportunities.

The federal district court found Drury innocent of the first type of fraud, the object of which is to deprive victims of money or other valuable personal property.

However, the court found Drury guilty of fraud in the second sense of depriving his clients of valuable rights or opportunities. The court reasoned that: Drury violated professional disciplinary rule 5-107; this violation constitutes a breach of his fiduciary duty to his clients; he concealed his 15% kick-back arrangement from his clients; as a result his clients lost the opportunity to negotiate with Drury on fair terms regarding the conditions and fee arrangements of their employment of him; the opportunity to bargain with the full knowledge of all proper material information constitutes a valuable intangible interest of which Drury deprived his clients; the clients also lost the right to retain an attorney who was not engaged in ethical violations; Drury allowed his financial interest in Dr. Macaluso to affect the professional services rendered to his clients; and the concealment of the 15% arrangement was not innocent but done with specific intent to defraud the clients of these intangible rights and opportunities.

The applicable disciplinary rule provides:

DR 5-107 Avoiding Influence by Others Than the Client
(A) Except with the consent of his client after full disclosure, a lawyer shall not:
(1) Accept compensation for his legal services from one other than his client.
(2) Accept from one other than his client any thing of value related to his representation of or his employment by his client.

One of the ethical considerations which precedes the rules in Canon 5 aids in our understanding of this rule; EC5-21 reads:

The obligation of a lawyer to exercise professional judgment solely on behalf of his client requires that he disregard the desires of others that might impair his free judgment. The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong economic, political, or social pressures upon the lawyer. These influences are often subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside pressures should make full disclosure of them to his client; and if he or his client believes that the effectiveness of his representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from representation of his client.

DR 5-107 is violated if an attorney, relative to his performance of legal services, accepts compensation or anything of value from someone other than his client without apprising the client of the situation and gaining the client’s consent after the client fully understands the implications of representation and the advantages and risks involved. The underlying purpose of the rule is to avoid a conflict of interest and, inter alia, a situation in which some outside economic interest might adversely affect the representation of a client. See M. Pirsig & K. Kirwin, Professional Responsibility, p. 425 et seq. (3d ed. 1977). Whereas a potential conflict does not per se preclude representation, an undisclosed conflict is impermissible and violative of the Code even if no conflict actually arises. An analogous type of conflict is addressed by the Comment, “Lawyers Interests,” to Rule 1.7 of the proposed Model Rules of Professional Conduct of the American Bar Association Commission on Evaluation of Professional Standards, commonly referred to as the Kutak Committee:

A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest.

Applying these precepts to the evidence adduced before the commissioner and the committee on professional responsibility, we conclude that Drury committed multiple continuous violations of DR 5-107. We find that the retentions by Drury were referral fees not repayments of a debt. The debt supposedly owed was never given a fixed amount or specific amortization period. The arrangement continued for over five years and terminated only upon the indictments. The federal district court found that the 15% withholdings were fees not payments of debts; we agree with that conclusion. Accordingly, Drury had a substantial interest in the doctors’ medical fees which might tempt him to overlook overcharges, excessive treatment or poor medicine, should any occur. He clearly was not insulated from the desires of others or pressures that might influence his free professional judgment. The primary object of DR 5-107 is to prevent an attorney from becoming involved in conflicts of interests which may lead to the harm of his clients, the bar or the public. The harm does not have to occur in order for a prohibited conflict to exist.

The purpose of lawyer discipline proceedings is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice from lawyers who have demonstrated an unwillingness or inability to discharge their professional duties. LSBA v. O’Halloran, 412 So.2d 523 (La.1982); LSBA v. Levy, 400 So.2d 1355 (La.1981); LSBA v. Quaid, 368 So.2d 1043 (La.1979). The discipline to be imposed in a particular case depends upon the seriousness of the offense, fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances. LSBA v. O’Halloran, supra; LSBA v. Levy, supra; LSBA v. Bensabat, 378 So.2d 380 (La.1979); see ABA Joint Committee on Professional Discipline, Standards for Lawyer Disciplinary and Disability Proceedings, § 7.1, p. 113 (1979).

Drury’s long-standing, ingrained arrangement with the doctor easily could have lent itself to defrauding insurers and bilking clients. Consequently, we consider these disciplinary violations to be very serious. On the other hand, because no actual deprivation of money or property was proved, the ultimate sanction of disbarment is not appropriate. Considering these mitigating and aggravating circumstances, and the precepts applicable to this case, a substantial period of suspension must be imposed.

It is ordered, adjudged and decreed that Edward R. Drury, respondent, shall have his license to practice in the state of Louisiana suspended for a period of three years, with credit for time elapsed during his present suspension, and that all costs of these proceedings be paid by respondent.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Although I have serious doubts about the propriety of a criminal conviction based on a violation of the Code of Professional Responsibility by use of the mails, I have no doubt that respondent violated DR5-107. Since this disciplinary matter essentially turns on proof of the violation of the disciplinary rule, and not solely on proof of the conviction, I concur in the decision.