author: SUMMERS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Emmett Raymond PROCELL.
    No. 61923.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In an indictment filed on February 17, 1977 the Grand Jury of Sabine Parish charged Emmett Raymond Procell with the December 16, 1976 first degree murder of John Patrick Meshell. La.Rev.Stat.M^O. In a trial by jury defendant Procell was found guilty as charged. In a separate sentencing hearing the jury recommended life imprisonment without benefit of probation, parole, or suspension of sentence. Pri- or to imposition defendant’s motion for a new trial was denied, and he was then sentenced to life in prison at hard labor without benefit of probation or parole. This appeal followed. All assignments of error urged on this appeal are considered.

During the early morning hours of December 16, 1976 defendant Procell joined Eugene Sepulvado and Patrick Meshell in the Carolyn Lounge, an establishment near Zwolle in Sabine Parish where drinks were served and the customers danced. Procell, Sepulvado and Meshell sat together at a table. When Debra Parker arrived at the lounge both Meshell and Procell asked her to dance. She declined Procell’s invitation, telling him she was going to dance with Meshell. After dancing with Debra Parker, Meshell returned to the table at which Sep-ulvado and Procell were seated. Procell was then heard to say, “Go ahead and laugh if you think it’s funny.” Immediately thereafter a shot was heard and Meshell fell across the table fatally wounded. Procell sat at the table momentarily, placed a revolver in his trouser belt, and walked out of the lounge. He made no effort to assist Meshell. Procell was arrested later that morning and charged with murder.

Assignments 3 and 4: Prior to trial, defendant filed a motion to quash, alleging that the indictment failed to charge an offense which is punishable under a valid statute. La.Code Crim.Pro. art. 532(1). Particularly, the motion alleged that the statute defining first degree murder and prescribing the death penalty therefor was unconstitutional, for it was in violation of the Eighth Amendment prohibition against cruel and unusual punishment, and in contravention of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Further, the motion alleged that Article 814 of the Code of Criminal Procedure, Louisiana’s responsive verdict statute, is unconstitutional in that it permits verdicts of guilty, guilty of second degree murder, guilty of manslaughter, and not guilty to be rendered in response to a charge of first degree murder. For these reasons the statute lacks standards to guide the jury’s selection of persons charged with first degree murder. It is alleged that these responsive verdicts invite the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel that the death penalty is inappropriate.

To support these contentions the defense relies upon the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The trial judge denied the motion to quash, and the defense assigns error.

Roberts v. Louisiana, supra, held the mandatory death penalty unconstitutional in Louisiana’s first degree murder statute enacted in 1973. Since that time, Louisiana’s first degree murder statute (La.Rev. Stat.14:30) has been amended by Act 657 of 1976, the statute under which defendant is being prosecuted in the instant case. The statute no longer prescribes a mandatory death penalty when considered together with Act 694 of 1976, referred to hereinafter.

By Act 694 of 1976 the Legislature enacted Article 905 of the Code of Criminal Procedure. According to its provisions, following a verdict of guilty in a capital case, a sentence of death may be imposed only after a sentencing hearing. In such a hearing before the same jury that determined the issue of guilt the focus is upon the circumstances of the offense and the character and propensities of the offender. Aggravating and mitigating circumstances are considered. A sentence of death can be imposed only upon the unanimous recommendation of the jury. If, at the hearing, the jury finds the sentence of death inappropriate, it shall recommend a sentence of life imprisonment without benefit of probation, parole or suspension of sentence, and the judge shall impose sentence accordingly. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Thus Roberts v. Louisiana, supra, is no longer authority for a claim that Louisiana’s death penalty statute is unconstitutional. Furthermore, while the effect of the responsive verdict statute (La.Code Crim.Pro. arts. 809, 814) on the imposition of the death penalty may have been a factor which induced the Roberts Court to invalidate the death penalty, the responsive verdict statute applicable to first degree murder was not declared unconstitutional.

As we noted in State v. Paimer, 344 So.2d 964 (La.1977), “The thrust of the Roberts decision was the Court’s condemnation of the mandatory character of the death penalty . . .” Therefore, when the Legislature amended the first degree murder statute and enacted the sentencing hearing statute, it did not consider that amendment or repeal of the responsive verdict statutes was necessary. Insofar as Articles 809 and 814 of the Code of Criminal Procedure were concerned they remained effective and valid. Other decisions since Roberts have recognized the viability of these responsive verdict statutes. State v. Qualls, 353 So.2d 978 (La.1978); State v. James, 339 So.2d 741 (La.1976); State v. Finley, 337 So.2d 1151 (La.1976); State v. Turner, 337 So.2d 1090 (La.1976); State v. McCoy, 337 So.2d 192 (La.1976).

Moreover, at the sentencing hearing, the State’s attorney announced that the State was not asking for the death penalty.

These assignments are without merit.

Assignment 5: Because the State did not ask for the death penalty and the jury did not recommend that punishment, the defense contends it was error for the court to permit the District Attorney during voir dire examination to excuse prospective jurors for cause because they expressed conscientious scruples against the infliction of capital punishment. La.Code Crim.Pro. art. 798(2).

This contention is based on the theory that the juror’s attitude toward the death penalty no longer plays a part in the determination of guilt in a first degree murder trial because the guilt determination phase of the bifurcated trial of a first degree murder charge does not concern sentencing; that question is subsequently determined at the sentencing hearing. La.Code Crim.Pro. art. 905.

By permitting the State to challenge jurors for cause when they expressed conscientious scruples against the death penalty, it is argued the prosecutor was able to challenge more jurors than the defendant because the defendant is not authorized to challenge on that ground. Consequently, defendant exhausted his peremptory challenges long before the State.

Several answers are suggested to this contention. The District Attorney did not announce that the State was not asking for the death penalty until after the verdict was rendered and the record sheds no light on when this decision was made. If it was not made until after the verdict, the voir dire examination on the question of the juror’s attitude toward the death penalty was certainly relevant before that time. This is so because in all probability the same jurors would participate in the sentencing hearing and their attitude would be relevant to a charge which prescribed the death penalty. For, in the event of a guilty verdict, the same jurors would be called upon to decide whether the death penalty should be recommended. Nor do we understand that the District Attorney’s recommendation on sentence is binding upon the jury. Despite the fact that the State did not ask for the death penalty, the jury was empowered to recommend otherwise, thus making their attitude toward the death penalty material to the prosecution under any circumstance when the charge is first degree murder. It was proper, therefore, to ascertain the attitude of the jury on that subject.

The defense has not designated that portion of the record which supports the contention that the defendant’s peremptory challenges were depleted long before the State exhausted its peremptory challenges. And if he did make such a showing, we do not understand that it would prejudice the defendant to the extent that he would be denied a fair trial.

Assignments 6, 7 and 9: Defendant contends that error occurred during voir dire examination, during the testimony at the trial, and during the argument to the jury because the District Attorney and his assistant expressed their own personal opinions as to the guilt of the accused. Although defense counsel moved for a mistrial on each occasion, the motions were denied and defendant contends that the trial judge did not adequately admonish the jury.

The defense cites five such instances in brief. Because one of the remarks was not objected to, we only consider four.

While examining a prospective juror on voir dire the prosecutor stated the elements of the crime the State must prove are: the killing was not an accident; and it did not occur in self-defense or the defense of others. The prosecutor concluded: “Now these are the basic elements of the crime of first degree murder. The State has to prove those to you and obviously we wouldn’t be here if we didn’t think we could do that.” When defense counsel objected, the trial judge admonished the jury as follows:

“I would admonish you to disregard any statement that would tend to destroy the absolute presumption of innocence which the accused has throughout this trial. This is accorded any defendant in this or any other case. I would instruct you that each of you understands that an accused in any criminal case is presumed to be innocent until the burden of proving his guilt beyond a reasonable doubt has been established. Any remark made by the State’s attorney which would tend to minimize that very precious right is to be disregarded by you.”

In his opening statement to the jury the District Attorney said:

“After you have heard and seen all the evidence, we believe you will agree that this accused, Emmette Raymond Procell, is beyond a reasonable doubt guilty of the crime for which he stands charged, murder in the first degree of John Patrick Meshell, and that you will have no alternative but to return a verdict of guilty as charged.”

No contemporaneous objection was made by the defense, but after a while defense counsel approached the bench and again moved for a mistrial. The motion was denied but the trial judge did admonish the jury at length, instructing them to disregard any statements made by the prosecutor “as to what he believed that you will do.” He emphasized that the personal beliefs of the prosecutor were impermissible and should not be considered. Whereupon the District Attorney finished his opening statement.

Later, in the State’s rebuttal argument, the Assistant District Attorney, referring to the testimony of a State’s witness, remarked, “Frankly, I thought she made a very believable witness and that the evidence she gave was strong.”

Again defense counsel objected and the trial judge sustained the objection, admonishing the jury to disregard what the prosecutor “believed.” Continuing his rebuttal argument and again referring to trial testimony of the same witness, the prosecutor said, “I certainly am of the opinion that such a remark would not form the basis for antagonism on her part.” When the defense objected, the trial judge again instructed the jury that it should disregard the prosecutor’s expression of opinion.

Although it is generally considered erroneous for the prosecuting attorney to declare his individual opinion or belief that the accused is guilty when the accusation is made in such a manner that the jury may understand that the prosecutor’s belief is based on evidence dehors the record, such an opinion is permissible if the prosecutor refers to, or it is apparent that his opinion is based on, the evidence of record. State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). In this case the beliefs and opinions expressed were based upon the evidence produced at the trial. There was no attempt on the part of the prosecutors to express beliefs or opinions based upon facts or circumstances dehors the record. None of the remarks directly urged a guilty verdict on the basis of evidence outside the record or solely on the beliefs of the prosecutors. Most of the remarks expressed the prosecutor’s opinion of a witness’ testimony; an argument on the credibility of a witness being proper. La.Code Crim.Pro. art. 774; State v. May, 339 So.2d 764 (La.1976).

If it can be considered that the remarks of the prosecutors were impermissible under the rule expressed in Sercovich, the law nevertheless provides a remedy for the defendant. Article 771 of the Code of Criminal Procedures mandates that the judge “shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the State, in the mind of the jury.” The judge did admonish the jury in the instant case, and properly ruled that a mistrial should not be granted. La.Code Crim.Pro. art. 775; State v. Duke, 358 So.2d 293 (La.1978); State v. Rittiner, 341 So.2d 307 (La.1977); State v. Landry, 262 La. 32, 262 So.2d 360 (1972).

These assignments are without merit.

Assignments 12 and 14: The defense contends that the trial judge erroneously overruled several objections to testimony elicited by the State to the effect that after receiving the Miranda warnings, defendant remained silent after arrest and while he was incarcerated prior to his release on bail.

In brief the defendant asserts that evidence was elicited by the State over defense objections in three ways; 1) by direct examination on the State’s case in chief; 2) by cross-examination of the defendant; and 3) by direct examination of a witness on rebuttal.

Deputy Floyd Terrell, Jr., one of the two arresting officers, testified for the State. While he was being examined by the prosecutor, this colloquy occurred.

“Q. [By the prosecutor] Did you at the time you arrested Mr. Procell, did you read him his rights?
A. [Deputy Terrell] I advised him verbally of his rights.
Q. Would you tell him what you advised him of?
A. I advised him that he had the right to remain silent; anything he said could and would be used against him in a court of law; he had a right to have an attorney present during questioning; if he was unable to employ one, one would be appointed to him by the State.
Q. Did he seemingly understand the rights that you read to him?
A. He didn’t comment either, any way.
Q. Did he make any statement to you at that time concerning this incident?
A. He did not.
Q. Has he to this day made any statement.—
A. He has not.
Q. —to you concerning this incident? Did he sign a waiver of rights?
A. He did not.
Q. He did not at that time? Has he to this date signed a waiver of rights?
A. Not to my knowledge.”

At this point defense counsel objected and moved for a mistrial. Defense counsel made no request for an admonition. In his argument on the objection, the prosecutor stated that the interrogation was designed to establish that Procell received the Miranda warnings and that he was not compelled to make a statement.

Read in the light of the prosecutor’s argument the questions and answers may plausibly be considered to have that meaning. And it is feasible to conclude that the jurors understood the witness’ answers in that light and not as an effort by the State to attack defendant’s credibility with an inference that he failed to deny his guilt.

Insofar as this quoted interrogation is concerned, it may be read as evidence establishing that Procell received the Miranda warnings and claimed the rights incident thereto by not giving a statement, and that he did not waive those rights.

As the State’s next witness, the prosecutor called Lovell Knowles, the other arresting officer. He testified that he accompanied Deputy Terrell when they arrested Procell at 2:40 on the morning of December 16. When he was asked by the prosecutor if Procell made “any statements in your presence?”, defense counsel objected, the question was not answered, and the witness was tendered for cross-examination.

Procell took the stand to testify in his own behalf. His version of the killing was that it was accidental. He testified that as he sat at the table in the lounge with Sepulvado and Meshell, Meshell asked to see Procell’s handgun which Sepulvado was then holding. Sepulvado handed the gun to Meshell and shortly thereafter, as Meshell was handing the gun back to Pro-cell, Procell reached for the pistol and as he gripped the handle it discharged killing Me-shell.

On cross-examination this colloquy occurred:

“Q. [The prosecutor] Do you recall when is the first time that you ever told anybody that you were passing that gun around the table?
A. [Defendant] I could have told Andrew Sepulvado.
Q. Did you tell any of the officers or anyone else you talked to that day or for the next week that you were passing that gun around the table?
A. I could have told Andrew Sepulva-do.
Q. Did you tell any of the officers or anyone else you talked to that day or for the next week that you were passing that gun around the table?
A. No.
Q. Did you tell anybody there and I’m not suggesting — ”

An objection was made that the prosecutor was eliciting testimony from defendant concerning his failure to make statements to the officers. No motion for a mistrial was presented and the defense did not request an admonition to the jury.

It should be emphasized that this last interrogation is of the defendant on cross-examination. And again it may be said that the interrogation was not an effort to elicit testimony of defendant’s post-arrest silence after receiving the Miranda warnings. A review of defendant’s entire testimony makes it clear that the questioning was proper cross-examination of defendant which pertained precisely to his testimony on direct examination.

Another incident at the trial involves the interrogation of Jamie Sliman, a co-employee of defendant, who visited defendant in jail soon after he was incarcerated. He was asked if defendant told him anything about the shooting. He answered that he never asked him and defendant did not mention the occurrence. No inference should be gained from this abbreviated encounter that the State sought to establish defendant’s refusal to talk.

Otherwise, if these colloquies are read as interrogations eliciting testimony of Procell’s post-arrest silence after having been given the Miranda warnings, the motion for a mistrial and request for admonition were the proper vehicles under Louisiana Law for righting the claimed injury to defendant. Article 771 of the Code of Criminal Procedure requires only that the trial judge admonish the jury to disregard the quoted remarks and comments. However, no request that the trial judge admonish the jury was made. Granting a mistrial in this situation was therefore discretionary with the trial judge “if [he] ... is satisfied that an admonition is not sufficient to assure the defendant a fair trial.” La.Code Crim.Pro. art. 771; State v. Smith, 336 So.2d 867 (La.1976). The trial judge was satisfied that defendant could have a fair trial.

This Court is not unmindful of the decisions of the United States Supreme Court in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Hale stands for the proposition that it is reversible error to elicit testimony concerning defendant’s silence during police interrogation after he has been arrested and given the Miranda warnings. While the Hale decision may not be binding in this case since it involved an evidentiary rule applicable to the federal judiciary, the ease did serve as a basis for the decision in Doyle v. Ohio which elevated the same proposition to the dimension of a constitutional right applicable to the states. And, although we do not read the testimony at issue here as an effort by the State to point out defendant’s silence after receiving the Miranda warnings, we shall nevertheless decide that if such an error did occur the error was harmless.

As the brief reference to the facts in this opinion disclose, the implausible defense of accident was rejected by a unanimous jury. In a three-day trial producing a record containing 825 pages, the evidence convincingly established defendant’s guilt beyond a reasonable doubt, and no effort was made by the prosecution to exploit defendant’s silence in order to impeach his testimony. Doyle v. Ohio, supra, and State v. Smith, 336 So.2d 867 (La.1976).

Assignment 15: After verdict and before sentence defendant filed a motion for a new trial, alleging that the verdict was contrary to the law and evidence in that there was a total absence of evidence to show that defendant had a specific intent to kill or inflict great bodily harm. In addition, defendant reurged the alleged errors which have been considered in this opinion. The motion was denied and the ruling is claimed as error on this appeal.

Louisiana’s Constitution limits this Court’s review of criminal conviction on appeal to questions of law. La.Const. art. V, § 5(C). It is only when there is a total lack of evidence of an essential element of a crime that a question of law is presented. For it is contrary to law that anyone should be convicted when there is no evidence of his guilt. State v. Proctor, 354 So.2d 488 (La.1977); State v. Hatter, 350 So.2d 149 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976).

Another rule of law relevant to the question this assignment presents is:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” (emphasis added). La.Rev.Stat.15:445. See also State v. Garner, 241 La. 275, 128 So.2d 655 (1961).

From this record there are ample facts from which the requisite intent may be inferred. Among other, an eyewitness saw Procell holding the gun pointed at Meshell as it was fired.

The remaining contentions presented by the motion for a new trial involve the assignments of error already considered and found to be without merit. The motion for a new trial was properly denied.

For the reasons assigned, the conviction and sentence are affirmed.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for the reasons assigned by CALOGERO, J.

CALOGERO, Justice,

dissenting.

I disagree with the majority’s conclusion in connection with assignment number 14, firmly believing that the trial interrogation of Deputy Terrell warranted the mistrial sought by defense on the basis of the officer’s testimony regarding Procell’s silence at the time of his arrest. When the state commenced its examination of Deputy Terrell, the defense attorney was justified in believing, as he later stated he did, that the prosecutor was preparing to introduce an inculpatory statement. Thus, he did not at first object to the line of questioning quoted in the majority opinion. However, when it became clear that the prosecutor sought to elicit evidence of Procell’s silence at the time of the arrest, the defense attorney moved for a mistrial on the basis that the witness’ testimony amounted to a comment on the defendant’s failure to make a statement, in contravention of United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

In State v. Montoya, 340 So.2d 557 (La.1976) the state sought testimony regarding defendant’s silence under police interrogation to prove that he committed the crime charged. The Court, after quoting extensively from Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which held that a post-arrest silence may not be used to impeach a defendant who gives exculpatory trial testimony, held that it was reversible error to permit the state to use testimony about the defendant’s silence. The quotation from the Doyle case contained language from the concurring opinion of Mr. Justice White in Hale, which opined that “. . . when a person under arrest is informed, as Miranda requires that he may remain silent, that anything he says may be used against him ... it seems to me that it does not comport with due process to permit the prosecution .during the trial to call attention to his silence at the time of arrest . . . .”

As in Montoya, the state attempted to use Procell’s silence after arrest in conjunction with other evidence to establish commission of the crime. That the defendant subsequently took the stand in this case (unlike in Montoya) is of no relevance, since the evidence of his silence was presented during the case-in-chief (as well as at other times during the trial), at a time when it was by no means certain that Pro-cell would testify in his own defense.

The trial judge should have granted the mistrial sought. The questions of the state and answers of Deputy Terrell could have no other effect, in my view, than to call to the jury’s attention the fact of defendant’s silence. The prosecutor’s claim that the questions were designed to establish that the defendant was given his Miranda warnings and, thus, was not compelled to make a statement is irrelevant, in light of the effect of the exchange. Moreover, the State is only required to establish that Miranda warnings were given before it introduces evidence of a confession or inculpatory statement. See State v. Henry, 352 So.2d 643 (La.1977). It need not establish such fact in connection with the testimony of an officer who will relate that no confession or statement was made.

I respectfully dissent.

      . La.Rev.Stat.l4:30:
      “First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
      “Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.”

      . The state’s answer to the defense prayer for oyer stated that the defense was not entitled to have furnished oral statements, possibly implying that the state possessed such statements. Before its opening statement, the prosecution complied with article 768 of the Code of Criminal Procedure, advising of its intention to use statements made to investigating officers or others. Thus the belief of the defense attorney had an ample basis.


source: Caselaw Access Project

author: LANDRY, Judge. PER CURIAM.

license: Public Domain

text:
    Cindy BARKSDALE v. SOUTHERN AIRWAYS, INC.
    No. 11998.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    On Rehearing Oct. 9, 1978.
    Arthur Cobb, Baton Rouge, of counsel, for plaintiff-appellee Cindy Barksdale.

      Gerald Walter, Jr., Baton Rouge, of counsel, for defendant-appellant Southern Airways, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment awarding plaintiff (Appellee), an airline stewardess, workmen’s compensation at the rate of $85.00 weekly, for total permanent disability sustained by Appellant who fell to the floor of a plane, because of in-flight turbulence, on May 7, 1976. We amend the judgment and award plaintiff compensation for partial disability at the rate of $85.00 weekly, not to exceed 400 weeks.

Plaintiff, who is 25 years of age, fell on her back. She was assisted to her feet by passengers. Upon landing, she reported the accident to the Captain, who requested that plaintiff complete the flight, if possible, which plaintiff did. On May 11,1976, plaintiff consulted Dr. Dowell, Orthopedist, who found that plaintiff exhibited an acute lum-bo-sacral syndrome. Dr. Dowell prescribed conservative treatment which did not alleviate plaintiff’s complaints of severe lower back pain. On May 20, 1976, plaintiff consulted Dr. Dowell’s associate, Dr. Francis C. McMains, Orthopedist. Neither specialist found any evidence of fracture or dislocation.

Dr. McMains initially found tenderness of the lumbo-sacral junction and some restriction of motion. Plaintiff was seen by Dr. McMains June 2, 7, 21, and July 20, 1976, on which latter date he recommended that plaintiff resume work August 1, 1976. Plaintiff worked until August 18, when she returned to Dr. McMains, complaining of back pain. Dr. McMains found no muscle spasm, but detected soreness at the lumbo-sacral junction. Plaintiff was seen again by Dr. McMains on September 9, 1976, at which time plaintiff complained of lower back pain. Finding minimal objective symptoms, Dr. McMains referred Appellee to Dr. Harry Morris, because of Appellee’s complaints of continuous pain. On November 3,1976, Dr. McMains put Appellee on an exercise program recommended by Dr. Morris. On January 3, 1977, Appellee returned to Dr. McMains, complaining of back pains. Dr. McMains found few objective symptoms. Appellee resumed work on March 3, 1977, and worked until July 5, 1977. During this interval, she wore a surgical corset and continued on pain medication prescribed by Dr. McMains. Between March and July, 1977, Appellee experienced two incidents which aggravated her condition. The first involved an in-flight maneuver by the pilot to avoid a small plane flying dangerously nearby. The second occurred on landing when the pilot unexpectedly braked the plane very hard. After each episode, Appellee consulted Dr. McMains. On July 5, 1977, Dr. McMains advised Appellee to take medical leave from work because the corset Appellee was wearing and the drugs being taken did not relieve Appellee’s complaints. In essence, Dr. McMains considered Appellee unable to perform the duties of airline stewardess as of July 5, 1977. He seemed concerned that the type of work involved lent itself readily to aggravation of Appellee’s condition. He also felt that Appellee should improve with rest and a few months off from work. He could not predict, however, when Appellee might be able to resume her duties as airline stewardess.

It is conceded that Appellee was seen by numerous other medical experts including an orthopedist, a neurosurgeon, a neurologist, an osteopath and a gynecologist, most of whom saw Appellee on only one occasion and none of whom testified, excepting Dr. Lynn Hamilton, Orthopedist, whose deposition was introduced in evidence by Appellant.

Appellant urges that the trial court erred in: (1) Finding Appellee disabled subsequent to July 5,1977, as a result of the May 7, 1976 accident; (2) Failing to presume that the testimony of the uncalled experts would be adverse to Appellee; and (3) Finding Appellee totally and permanently disabled despite a lack of proof of Appellee’s inability to engage in any gainful occupation for wages.

La.R.S. 23:1317 (1950) provides in part:

“All compensation payments provided for in this Chapter, shall mean and be defined to be for only such injuries as are proved by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.”

Dr. Dowell found muscle spasm and other objective symptoms of injury on Appellee’s initial examination. Dr. McMains found no muscle spasm but repeatedly found soreness and tenderness in the lumbo-sacral area. Dr. McMains stated that injuries of this nature are not always manifest by objective symptoms. His testimony leaves no doubt that he considered plaintiff to have been injured and disabled. Additionally, plaintiff produced lay testimony including that of her husband, mother-in-law, and a friend who corroborated plaintiff’s testimony as to her suffering and the restriction of plaintiff’s physical activities and living pattern following the accident. As treating physician, Dr. McMains saw Appellee on numerous occasions and testified unequivocally as to her disability. The Supreme Court in Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975), relied on the following interpretation of the burden imposed by La.R.S. 23:1317 as established in Brown v. Joseph Rathbone Lumber Co., 11 La.App. 599, 123 So. 383 (Orl.Cir.1929):

“[i]t is only necessary that there should have been ‘objective conditions or symptoms proven,’ and such subjective result as may be imputed to the original objective condition is compensable under the law.”

The findings of the physicians in conjunction with the lay testimony are sufficient to meet the burden imposed by the statute.

In written reasons for decision, the trial judge detailed the numerous uncalled experts who examined Appellee. He also considered the deposition of Dr. Hamilton, who felt that Appellee could resume her duties as airline stewardess. Deeming the medical evidence somewhat inconclusive, the trial judge considered that the testimony of Dr. McMains, as treating physician, coupled with the lay testimony concerning Appellee’s disability, established Appellee’s cause. We think it obvious that the trial judge did consider Appellee’s failure to call certain medical experts. It is equally obvious that the trial judge weighed all the evidence (including the absence of expert medical testimony) and applied the rule that the totality of evidence, medical and lay, determines whether an employee is entitled to workmen’s compensation benefits. Tantillo, above. We find no error in the conclusion that Appellee established disability.

Appellant also complains that Appel-lee did not establish injury related to the May 7, 1976 injury because Appellee, in effect, testified to aggravation resulting from the aforementioned incidents which occurred on May 20 and June 23, 1977, respectively. Testimony regarding these incidents was admitted without objection. Under our rules of procedure, Appellee’s petition is deemed amended to include these occurrences. La.C.C.P. Article 1154. Determination that these latter incidents were the cause of Appellee’s disability, or aggravated her prior condition, would enhance rather than detract from Appellee’s right of recovery.

We do, however, find error in the trial judge’s conclusion that Appellee is totally and permanently disabled. It appears that he reached this decision due at least in part to his concern that the nature of Ap-pellee’s employment readily lent itself to the possibility that similar future incidents might aggravate Appellee’s present condition and prolong her eventual recovery. It is significant that Dr. McMains did not testify that Appellee was incapable of engaging in any gainful occupation for wages.

In Leblanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977) writ refused 351 So.2d 174 (La.1977), we held that La.R.S. 23:1221(2), as amended by Act 583 of 1975, defines total permanent disability as inability to engage in any gainful occupation for wages, whether or not of the same or a similar occupation as that in which the employee was engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by education, training and experience. See also Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977).

We find that the record establishes that Appellee is partially disabled from performing the duties in which she was customarily engaged when injured, or duties of the same or similar character, nature or description for which she is fitted by education, training and experience. La.R.S. 23:1221(3). Being partially disabled, Appel-lee is entitled to compensation of $85.00 weekly, not beyond a maximum of 400 weeks. Should Appellee earn wages in another occupation during disability, she is entitled to compensation of sixty-six and two-thirds per centum of the difference between wages she was earning at the time of injury and any lesser wages earned in any week thereafter in any other gainful occupation for wages. La.R.S. 23:1221(3).

The judgment of the trial court is amended in that judgment is rendered herein in favor of Appellee and against Appellant, decreeing Appellee entitled to compensation at the rate of $85.00 weekly, commencing May 7, 1976, for partial disability, not beyond a maximum of 400 weeks, subject to the provision that should Appellee earn wages in any other gainful occupation during said period of disability, her compensation rate shall be sixty-six and two-thirds per centum of the difference between the wages she was earning at the time of injury and any lessor wages earned in any week in any other gainful occupation for wages, credit to be given Appellant for all compensation previously paid. All costs of this appeal to be paid by Appellant.

Amended and affirmed.

ON REHEARING

PER CURIAM.

A rehearing was granted in this matter limited to a determination of the proper date for commencement of workmen’s compensation benefits in favor of plaintiff (Ap-pellee).

On original hearing, this court agreed with the finding of the trial court as to Appellee’s having established her disability as a result of a work-related accident. As set forth in our original opinion, the trial judge found Appellee was permanently and totally disabled as of July 5, 1977, the date on which Appellee was compelled, on the advice of her treating physician, to take a medical leave of absence from work. As noted therein, the accident sued upon occurred on May 7, 1976, over a year prior to the date on which the lower court held compensation payments to Appellee were to commence (July 5, 1977).

Our original opinion amended the lower court judgment in two respects. First, whereas the trial judge found Appellee to be permanently and totally disabled as a result of subject accident, as aggravated by two subsequent work-related incidents, this court held that under the Workmen’s Compensation Act as amended, Appellee was only partially disabled; thus, compensation was limited to a maximum duration of 400 weeks.

Secondly, and more significantly, this court altered the trial court’s holding that compensation benefits were to commence on July 5, 1977, to require instead that said benefits begin as of May 7, 1976, the date on which subject accident occurred. In doing so, we committed error by inadvertently disregarding a basic principle of appellate review, namely, that a judgment cannot be changed in favor of an appellee who has neither appealed nor answered his adversary’s appeal. LSA-C.C.P. Art. 2133. Arrow Construction Company, Inc. v. American Employers Insurance Company, 273 So.2d 582 (La.App. 1st Cir. 1973).

Appellee has neither appealed nor answered Appellant’s appeal. Therefore, under the procedural posture of this case the trial court’s judgment awarding compensation commencing July 5, 1977 is final and not subject to review insofar as Appellee is, concerned.

Accordingly, our original decree is hereby amended and revised in that the workman compensation benefits due plaintiff begin on July 5, 1977, and in all other respects said decree shall remain in full force and effect. All costs of this appeal to be paid by Appellant.

      . Note that L.S.A.-R.S. 23:1317 contains an error in that it reads “or” in' lieu of “of” as in the official statute.


author: SARTAIN, Judge.

text:
    ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INC., Plaintiff-Appellant, v. IBERVILLE PARISH POLICE JURY, Defendant-Appellee.
    No. 12392.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 31, 1978.
    Wallace A. Hunter and William Faller of Durrett, Hardin, Hunter, Dameron & Frit-chie, Baton Rouge, for plaintiff-appellant-Rollins Environmental Services of Louisiana, Inc.
    Houston C. Gascon, III, Plaquemine, for defendant-appellee-Iberville Parish Police Jury.
    Patrick W. Pendley of Freeman & Pend-ley, Ltd., Plaquemine, by amicus curiae.
   SARTAIN, Judge.

Rollins Environmental Services of Louisiana, Inc. (Rollins) appeals from a judgment of the district court upholding the constitutionality of an ordinance of the Police Jury of Iberville Parish (Police Jury) which prohibited, inter alia, the disposal of hazardous waste within the borders of the parish. We reverse.

The issue presented in this litigation is solely one of law as the facts are not in dispute. ,

In 1975, the Police Jury adopted an ordinance for the purpose of establishing a comprehensive solid waste management program which pertained to the storage, collection, transportation, processing and disposal of all such wastes in the unincorporated areas of the parish. “HAZARDOUS WASTE” as therein defined, was specifically excluded from its provisions.

On August 3, 1978, the Police Jury amended the original ordinance to provide, in pertinent part, as follows:

“Section IX — I—Hazardous Waste Disposal
A. No person, firm, corporation, or other commercial establishment shall cause, suffer, allow, or permit any ‘HAZARDOUS WASTE’ as defined in Section 2, subsection 7 of the Comprehensive Solid Waste Management Porgram (sic) of the Parish of Iber-ville, or any other land contaminants to be dumped, discharged, stored, injected, or otherwise disposed of, within the boundaries of the Parish of Iberville, Louisiana, or any land within the confines of said parish.”

The amending ordinance further imposed a fine of $10,000.00 per day for any violation thereof with “each day constituting a new' violation.”

There existed in Iberville Parish on and for some time prior to August 3, 1978, a deep well disposal facility known as “Schwing B-l.” Such a facility is designed to dispose of liquid industrial residue by injecting it into the surface of the earth. It is drilled and operated under a permit issued by the Louisiana Department of Conservation (Department) and, more particularly, in accordance with the provisions of Statewide Order No. 29-N as promulgated by the Department.

The record before us does not disclose when “Schwing B-l” was actually drilled. However, the well was initially operated under a permit issued by the Department to a corporation known as Clean Land Air Water Corporation (CLAW). Under date of June 14, 1978, CLAW entered into an agreement to sell to Rollins “Schwing B-l”, the twenty acres upon which it was located, and certain other items of equipment used in its operation. On July 18, 1978, the Department approved the transfer of CLAW’s permit to Rollins. The sale of the aforementioned assets was consummated on July 28, 1978.

Between the dates of Rollins’ agreement to purchase and the actual closing of the sale from CLAW, an unfortunate event occurred in Iberville Parish. A young man died as a result of inhalation of or contact with toxic material at an open and unlicensed waste disposal site located some five to six miles from the “Schwing B-l” deep well. This tragedy hastened the adoption of the contested amendment to the ordinance. Other than the natural concern and apprehension that surrounds the disposal of hazardous waste, the only relationship of that tragedy to the instant controversy is that CLAW was the operator or co-operator of the pit where the event occurred.

Following the adoption of the amending ordinance on August 14, 1978, various representatives of industrial plants located in Iberville Parish, including Rollins, were invited to a meeting conducted by the Police Jury. They were informed that the penal provisions of the ordinance would be strictly enforced. This warning included the injection of hazardous waste into “Schwing Bl.”

Confronted with the threat of prosecution, Rollins brought the instant suit wherein it sought a preliminary injunction against the appropriate authorities from enforcing the ordinance and a declaratory judgment seeking to have the amendment of August 3, 1978, declared violative of the Louisiana Constitution of 1974. At the hearing on the preliminary injunction all counsel stipulated that the evidence then brought forward would also be submitted on the merits of the main demand for declaratory relief. At the conclusion of the hearing, the matter was submitted. Subsequently, the trial judge, for oral reasons assigned, denied the injunction, upheld the validity of the amending ordinance and dismissed Rollins’ suit. On the latter’s appeal, we granted a special hearing for en banc consideration.

The Police Jury contends that the amendment to its 1975 ordinance is permitted under the authority granted to it by R.S. 33:1236(31), below, or in the absence of specific authority, under its inherent power to enact such ordinances as are necessary in the interest and for the protection of its citizens.

On the other hand, Rollins argues here as it did in the trial court that R.S. 33:1236(31), below, is not authority for the Police Jury’s action. To the contrary, it contends that the state has not delegated its authority in this area but has enacted specific legislation to control the same, i. e., the disposal of hazardous waste by deep injection wells.

We agree with the position taken by Rollins and must reject the argument advanced by the Police Jury.

As evidenced by a consistent line of cases, our jurisprudence is uniform to the effect that police juries are creatures and subordinate political subdivisions of the state. As such they possess only those powers as are conferred upon them by the constitution and laws of the state. Union Sulphur Co. v. Parish of Calcasieu, 153 La. 857, 96 So. 787 (1923); KAOK-CATV, Inc. v. Louisiana Cable T.V., Inc., 195 So.2d 297 (La.App. 3d Cir. 1967); Washington Parish Police Jury v. Washington Parish Hospital Service District No. 1, 152 So.2d 362 (La.App. 1st Cir. 1963); B.W.S. Corporation v. Evangeline Parish Police Jury, 293 So.2d 233 (La.App. 3d Cir. 1974).

The above authorities are in harmony with Art. 6, § 7 of the Louisiana Constitution of 1974, which reads as follows:

“§ 7. Powers of Other Local Governmental Subdivisions
Section 7. (A) Powers and Functions. Subject to and not inconsistent with this constitution, the governing authority of a local governmental subdivision which has no home rule charter or plan of government may exercise any power and perform any function riecessary, requisite, or proper for the management of its affairs, not denied by its charter or by general law, if a majority of the electors voting in an election held for that purpose vote in favor of the proposition that the governing authority may exercise such general powers. Otherwise, the local governmental subdivision shall have the powers authorized by this constitution or by law.”

The Police Jury does not contend that there are any other applicable constitutional provisions or that it enjoys home rule status. Consequently, we look to the statutes.

R.S. 33:1236 enumerates many of the powers delegated to the police juries by the legislature. The delegated powers dealing with the disposal of waste material are those contained in Subsection 31, which reads as follows:

“To enact ordinances to require, prohibit, or regulate the destruction, disposal, or burning of trash, garbage, leaves, limbs and branches, or debris of any kind and to regulate dumping and the use of borrow pits for sanitary fill.” (Emphasis ours)

It is the Police Jury’s contention that “debris of any kind” encompasses hazardous waste as defined in its ordinance. A similar argument was made in B.W.S. Corporation v. Evangeline Parish Police Jury, above, in reference to an ordinance prohibiting the disposal of chemical waste. There the court said: 293 So.2d 233, 236:

“It is a fundamental principle in the construction of statutes that the meaning of a word or phrase may be ascertained by the meaning of other words or phrases with which it is associated. Under the doctrine of noscitura sociis and ejusdem generis general words, such as ‘other, etc.’, following an enumeration of particular or specific classes or things are to take color from the specific, so that the general words are restricted to a sense analogous to the less general. Thus the general words should be applied only to such classes of things of the same general kind as those specifically mentioned. (Citations omitted.)
We are also constrained to give the words used in the statute their ordinary and usual signification. Venterella v. Pace, 180 So.2d 240 (La.App. 4th Cir. 1965). The meaning of a particular word, clause, or sentence must also be determined in light of the statute as a whole, each being construed with respect to and in light of all other provisions to the ends that the whole be construed in harmony with the purposes and objects thereof as announced therein. (Citation omitted.)
In light of these general rules of construction and the specific wording found in Section 31 we can come to no other conclusion but that ‘debris of any kind’ was not contemplated by the Legislature in its adoption of the statute to include industrial waste.”

Applying the same rules and statutory interpretation, we similarly conclude that the hazardous waste attempted to be regulated by the Iberville ordinance is not covered by the term “debris of any kind.”

Additional support for this interpretation is found in R.S. 33:1236.6. This statute gives five parishes, Iberville not being included among them, authority concurrent with designated state agencies to regulate the disposal of industrial waste. If such wastes were within the contemplation of R.S. 33:1236(31), above, then this special grant of power would have been unnecessary. Hazardous waste, as defined in the Iberville ordinance, is not necessarily industrial waste; but, it can not be questioned that the amending ordinance also includes industrial waste and, at least to that extent, exceeds the scope of R.S. 33:1236(31), above.

The “inherent authority” theory advanced by the Police Jury must also be rejected. While there might exist a certain set of circumstances which, in the absence of any state action, might justify or dictate local action, such is not the case in the matter before us. The action of the Police Jury in its adoption of the amending ordinance not only invades an area into which the state has previously moved, it also purports to transcend the latter’s efforts.

A perusal of legislative action at the state level in the area of industrial waste management reveals that in 1976 (Act # 122) the legislature vested in the Department of Conservation (now the Department of Natural Resources) the authority to issue permits for and to regulate disposal wells and mandated the Commissioner to promulgate appropriate rules and regulations. R.S. 30:1(D) and 4(C)(16). Statewide order # 29-N was issued under this authority. Then by Act # 334 of 1978, the legislature adopted a comprehensive state hazardous waste control program. These provisions are now part of R.S. 30:1101, et seq. The latter statute became effective on July 10, 1978, when it was approved by the Governor. All of these statutes were enacted prior to the adoption of the Iberville ordinance in August of 1978.

It is settled law that a subordinate political subdivision of the state cannot enact ordinances which infringe upon the spirit of state law or are repugnant to the general policy of the state. City of Minden v. David Bros. Drug Company, 195 La. 791, 197 So. 505 (1940); National Food Stores of Louisiana, Inc. v. Cefalu, 280 So.2d 903 (La.1973); State v. Sissons, 292 So.2d 523 (La.1974); Ozone Import Company, Inc. v. Millet, 329 So.2d 476 (La.App. 4th Cir. 1976). The amending ordinance here contested goes even further. It completely abrogates positive state law on the same subject matter.

Finally, we must note that the Police Jury contends that its ordinance is necessary because present state law is inadequate to prevent the “wholesale and indiscriminate dumping of hazardous waste” throughout its parish. This is really not the issue before us. We are not here dealing with the wholesale and indiscriminate dumping of waste material. We are dealing with the operation of a duly licensed deep well injection disposal facility.

The provisions of the original comprehensive solid waste management ordinance of 1975 are not contested.

For the above reasons, the judgment of the district court is reversed and judgment is rendered herein decreeing the amending ordinance of August 3, 1978, of the Police Jury of Iberville Parish unconstitutional, null and without legal effect.

All such costs as are permitted by law are assessed against the defendant-appellee.

REVERSED AND RENDERED.

      . It is agreed by the litigants that the material sought to be injected into the well is hazardous within the definition of the ordinance.

      . J. Cleveland Fruge, J., participated on special assignment in the absence of Edwards, J.


author: BOUTALL, Judge.

text:
    L. FRANK & COMPANY, INC. v. DEVILLIER’S FOODLINER, INC.
    No. 9771.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Jan. 10, 1979.

      Morris B. Phillips, New Orleans, counsel for L. Frank & Co., Inc., plaintiff-appellee.
    Larry C. Pieno, Marrero, counsel for Dev-illier’s Foodliner, Inc., defendant-appellant.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is a suit on open account for merchandise sold and delivered by appellee, L. Frank & Company, Inc. to appellant, Devil-lier’s Foodliner, Inc. Appellant has appealed from a judgment rendered in favor of the appellee in the amount of $1,238.20.

The only issues on appeal deal with defendant’s motion for a continuance, the admissibility of appellee’s documents and testimony, and appellee’s entitlement to damages due to the frivolous nature of the appeal.

I. CONTINUANCE: Appellant included the issue of the trial court's denial of his motion for a continuance in its motion for appeal, but did not argue this point in its brief. We simply note that the granting of a motion for a continuance is discretionary with the trial judge. We are satisfied that no abuse of discretion was present here.

II. DOCUMENTS AND TESTIMONY: The appellant argues that certain delivery receipts and an invoice introduced into evidence were inadmissible in the absence of proof to show that a diligent effort was made to obtain the original. Appellee’s witness, Ray Johnson, referred to certain delivery tickets showing the delivery of the merchandise in question. These delivery tickets contain 2 copies— a white copy for the customer and a pink copy to be returned to the company by the drivers.

Appellee offered into evidence a signed pink carbon delivery receipt on each item shown on the invoice. It also introduced the invoice itself showing the appellant’s itemized purchases. After introduction of these, the trial court granted permission for appellee’s counsel to substitute photo-copies of these documents into evidence. This was done over appellant’s objection and on the grounds that they were receipts kept in the ordinary course of business.

We find no error in the actions of the trial judge. All cases cited by appellant in brief, such as Auto-For-Rent v. Provenza, 242 So.2d 353 (La.App. 2d Cir. 1970) and Raceland Stockyards, Inc. v. Vincent Giaise, 352 So.2d 392 (La.App. 4th Cir. 1977), do not help its cause since the pink carbon copy was the best evidence available here. Race-land, for example, states that production of one of the office copies of the original invoice in that case would have been sufficient. See Raceland, supra, at 394. Provenza is completely distinguishable since in that case the contract itself was on file in the office of the plaintiff, but was not produced at trial. The pink copy in this case was appellee’s only copy and it was produced at trial.

The procedure whereby the appellee introduced the pink receipts and the invoice into evidence and then substituted photocopies for these documents is accepted court procedure. These are records kept in the ordinary course of business and the ruling of the trial judge was correct. Substitution of a copy after introduction of an original business record is in no way prejudicial to the appellant, nor is it hearsay.

Appellant also contends that the testimony of appellee’s only witness, Ray Johnson, was inadmissible since the witness had no personal knowledge of the document from which he testified. It is clear from the testimony, however, that Mr. Johnson held the position of Comptroller at the company. He, in other words, supervises the keeping of the records from which he testifies.

It is well settled in Louisiana that business records, such as delivery slips or invoices, are competent evidence as to the amount owed on an account, when the bookkeeper or supervisor of the records testifies as to the correctness of them. G & S Implement Company, Inc. v. Sylvester, 322 So.2d 392 (La.App. 3rd Cir. 1975); City Stores Company v. Jordan, 211 So.2d 709 (La.App. 4th Cir. 1968). Appellant’s contention to the contrary is without substance.

III. DAMAGES FOR FRIVOLOUS APPEAL: In its answer to this appeal, appellee has asked for damages from the appellant due to the frivolous nature of this appeal. In Louisiana, damages for frivolous appeal are not allowable unless it is obvious that the appeal was taken solely for the purpose of delay or that counsel is not sincere in view of the law which he advocates. Parker v. Interstate Life & Accident Insurance Company, 248 La. 449, 179 So.2d 634 (1965); Tullis v. Aertker, 352 So.2d 415 (La.App. 3rd Cir. 1977); Louisiana Code of Civil Procedure Article 2164.

We feel that the record shows that this appeal was taken solely for the purpose of delay. We, therefore, award damages in the amount of $250.00 in favor of the appel-lee due to the frivolous nature of this appeal.

The judgment of the lower court dismissing appellant’s suit is affirmed; It is Further Ordered that there be judgment in favor of the appellee, L. Frank & Company, Inc. and against appellant, Devillier’s Food-liner, Inc., in the amount of $250.00. All costs of this appeal to be paid by the appellant.

Affirmed; judgment in favor of appellee for $250.00 Ordered.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In its application for rehearing, plaintiff-appellee, L. Frank & Company, Inc., points out that our decision contains an error in our decree, which is not in conformity with the judgment appealed. The judgment appealed was rendered in favor of appellee in the amount of $1,238.20, and in our decree, we noted “the judgment of the lower court dismissing appellant’s suit is affirmed.”

We agree with plaintiff-appellee, but the rehearing will be denied. It is well settled that appellate courts have the power to correct their judgments, and the granting of a rehearing to do so is not necessary. State, Department of Highways v. Eubanks, 345 So.2d 533 (La.App. 3rd Cir. 1977) and the cases cited therein.

Accordingly, our former decree is amended to read as follows:

“The judgment of the lower court in favor of L. Frank & Company, Inc. is affirmed;
It is further ordered that there be judgment in favor of the appellee, L. Frank & Company, Inc. and against appellant, Devillier’s Foodliner, Inc., in the amount of $250.00 as damages for a frivolous appeal taken by appellant. All costs of this appeal to be paid by the appellant.”

AFFIRMED, JUDGMENT INCREASED.


author: DOMENGEAUX, Judge. WATSON, Judge,

text:
    Clair MARCEAUX, Plaintiff-Appellant, v. Roy REESE and Jeanne Marceaux Reese, Defendants-Appellees.
    No. 6648.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Pugh, Craton & Jones by Lawrence G. Pugh, Jr., Crowley and Timothy A. Jones, Crowley, for plaintiff-appellant.
    Adam G. Nunez, Lake Charles, for defendants-appellees.

      Before DOMENGEAUX, WATSON, and CUTRER, JJ.
   DOMENGEAUX, Judge.

This suit involves the efforts of plaintiff, Clair Mareeaux, to obtain a right of passage for his enclosed estate.

Mareeaux is the owner of a 63.64 acre tract of land in Cameron Parish. Jeanne Mareeaux Reese, his sister, owns a tract of land located on Marceaux’s southern boundary. Originally, the father of the two, Cleophas Mareeaux, owned considerable acreage in Cameron Parish, including the land here involved. At the time of the father’s death, the land in question was contained in a 512 acre tract, which was partitioned. Jeanne Mareeaux Reese received the southern half of the property and Annette Mareeaux, another daughter, received the northern half. Subsequently, Annette died, and her will divided her 256 acres into four sections, lying north to south. The southernmost lot, designated as No. 4, bordered on Jeanne’s land, and Annette bequeathed this property to her. Lot No. 3, which was situated immediately north of Lot No. 4, was bequeathed to Ar-sene Mareeaux, but was later acquired by Jeanne. Clair was bequeathed the next lot, No. 2. Louis A. Dugas, Annette’s executor, received Lot No. 1, but apparently this was acquired by Jeanne at a later date.

In a prior suit, plaintiff attempted to establish a servitude of passage over the land situated to.the north of his lot, No. 3, and of Lot No. 1. This land belonged to Wilfred (Lulu) Broussard. In a 2-1 decision, this Court affirmed the judgment of the trial court, dismissing Marceaux’s suit. Marceaux v. Broussard, 338 So.2d 308 (La.App. 3rd Cir. 1976), writ denied 340 So.2d 992 (La.1977) (a 4-3 decision). In dictum, the majority in Broussard stated:

“The Reese estate owes the right of passage to the Mareeaux estate.”

The “Reese estate” in that case refers to the land owned by Jeanne Reese to the south'of Mareeaux. It should be noted that Jeanne Reese was not a party in the Brous-sard case.

Following the reception of an adverse decision in Marceaux v. Broussard, plaintiff demanded a right of passage over his sister’s property. The parties could not reach an agreement, and this suit followed.

Plaintiff filed his petition on February 11, 1977, seeking injunctive relief against Jeanne Mareeaux Reese and her husband, Roy Reese, “enjoining, restraining and prohibiting the defendants, their agents and employees from in any manner interfering with petitioner in the full exercise of his right of passage across the 256 acre tract owned by the defendants . . . .” Mar-ceaux also sought damages, alleging that, because his right of passage was denied by defendants, he could not raise his crops.

In their answer, defendants pointed out that the land was owned by Jeanne Reese individually, and that, inasmuch as neither defendant was a party to the suit in Brous-sard, no right of passage over Jeanne’s land had ever been established. Both Jeanne and Roy Reese reconvened for damages. Jeanne Reese reconvened additionally for the establishment of a right of passage across plaintiff’s property, alleging that Lot No. 1 of the original Annette Mareeaux tract, now owned by Jeanne, was enclosed.

After trial, the trial judge rendered a judgment establishing a right of way over the property owned by Jeanne Reese and a bridge owned by Roy Reese, enjoining the defendants from interfering with plaintiff’s use of the right of way, ordering that plaintiff share in the responsibility of maintenance of the right of way, denying the claim for damages of all parties, and dismissing the reconventional demands of defendants. Plaintiff appeals, and defendants answer the appeal.

The threshold issue on appeal is raised by the defendants. They maintain that it was improper to establish a right of way in a suit which only sought injunctive relief.

Defendants argue that Clair Marceaux sought to establish the right of way collaterally over the land of Jeanne Reese by using the dictum in Marceaux v. Broussard to the effect that the Reese estate owes the right of passage. Apparently, plaintiff adopted the position in his petition that the Broussard case had already established his servitude and that a suit for an injunction against defendants was the proper method in which to proceed for judicial protection of his rights.

We think it elementary that the Broussard case could not have established plaintiff’s right of way, because neither Jeanne Reese, nor her land, were involved. If, then, a right of way was not yet established, it follows that plaintiff’s suit for injunctive relief was improper. It is well established that an injunction based on a right of passage should be refused when the place and mode of passage has not been fixed by the consent of the parties or a judgment of the Court. Morgan v. Culpepper, 324 So.2d 598 (La.App. 2nd Cir. 1975), writ denied 326 So.2d 377 (La.1976) and 326 So.2d 378 (La.1976); Ezernack v. Ezernack, 18 La.App. 56, 137 So. 626 (2nd Cir. 1931).

The trial judge obviously recognized that injunctive relief was improper at this stage of the proceedings, because he listed four issues in his written reasons, which he thought the case presented. These were: (1) the location of the servitude; (2) the extent of the servitude; (3) the responsibility for the maintenance of the servitude; and (4) the damages sought by the parties. However, considering the posture of the pleadings, we feel that it was erroneous for the trial judge to resolve those issues concerning the servitude.

Plaintiff filed a single, unamended petition for injunctive relief and damages. He did not allege the proper items to establish a right of passage in his petition, nor did he pray for the establishment of a right of passage. These omissions and defects in plaintiff’s petition were clearly pointed out to the trial judge at the beginning of trial by defense counsel, who strenuously objected to any proceedings in the trial court which could lead to the establishment of a right of way. Nevertheless, the Judge took evidence on the establishment of the right of way and ultimately rendered a judgment establishing it.

We feel that our able trial brother erred in allowing plaintiff to exceed the scope of the demands made in his petition. Timely objection, coupled with the failure to move for an amendment of the pleadings, is fatal to an issue not raised by the pleadings. Wanda Petroleum Company v. Mac Drilling, Inc., 353 So.2d 474 (La.App. 3rd Cir. 1977), writ denied 355 So.2d 258 (La.1978); Bosworth v. New Orleans Federal Savings & Loan Association, 258 So.2d 191 (La.App. 4th Cir. 1972). Defendants came into court to defend a suit for injunc-tive relief and damages, and not to defend a suit seeking to establish a servitude of right of way.

We thus hold, in the context of this case, that (1) the establishment of a right of way either by mutual consent or Court Order was a prerequisite to plaintiff’s injunctive relief; and (2) plaintiff’s suit for injunctive relief was not the proper procedure to establish a right of way. Accordingly, plaintiff’s suit will be dismissed.

Several other issues have been raised on appeal, however, considering our resolution of this case, it is not necessary to discuss these at this time. This includes the argument made by Jeanne Reese relative to her reconventional demand for the establishment of a servitude of passage over the land of Clair Marceaux. In that connection, we note that the record indicates that this claim was not seriously pursued during trial, possibly because the issues were not clearly formulated. In the interest of fairness to both sides, we will dismiss the entire suit and all reconventional demands, without prejudice to any party.

For the above reasons, the judgment of the District Court is reversed. It is now Ordered that plaintiff’s suit, as well as defendants’ reconventional demands, be and the same are hereby dismissed, without prejudice. All costs on appeal are assessed against the plaintiff-appellant, Clair Mar-ceaux.

REVERSED AND RENDERED.

WATSON, J., concurs and assigns written reasons.

WATSON, Judge,

concurring:

I concur reluctantly because the effect of the decision is to put these parties through more litigation which will have the same result. It is significant that defendants asserted in their reconventional demand that they were willing to grant plaintiff the right-of-way across the Gueydan Canal which was recognized by the trial court. The principal opinion does not cast any doubt on the conclusion in Marceaux v. Broussard, supra, that the Reese estate owes the right of passage to the Marceaux estate. It is unfortunate that the procedural posture of the present case does not allow a recognition of that right.

      . The author of the present opinion dissented, feeling that Marceaux’s right of passage should have been over Broussard’s lands.


author: DOMENGEAUX, Judge.

text:
    Succession of Martha Louise Hunter PIERSON, (Pattie Hunter Pierson).
    No. 6671.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Writs Refused Jan. 19, 1979.

      Pharis & Pharis, F. Jean Pharis, Alexandria, for Louise P. Marshal, et al.
    Mansour & Davis, Alfred A. Mansour, Alexandria, for Louise Pierson Marshal.
    Bolen, Halcomb & Erwin, James A. Bo-len, Jr., Alexandria, for Diane P. Whaley.
    Lewis O. Lauve, Alexandria, for David Pierson.
    Gravel, Roy & Burnes, Stephen E. Everett, Alexandria, for Succession of Martha Louise Hunter Pierson et al.
    Gist, Methvin & Trimble, John W. Mun-sterman, Alexandria, for Sec. Nat. Bank.
    Provosty & Sadler, Richard E. Chaudoir, Alexandria, for Guaranty Bank.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This matter is before us after trial on remand. In the first appeal, we decided various issues of collation between the forced heirs of decedent, Martha Louise Hunter Pierson, and remanded the case to the District Court for a determination of the reductions due in this succession. Succession of Pierson, 339 So.2d 1337 (La.App. 3rd Cir. 1976), writs denied 342 So.2d 216-217 (La.1977). After remand, the dative testamentary executor filed a petition for payment of charges, final accounting, and distribution of property, which was opposed by all heirs or their representatives. The trial judge rendered judgment dismissing all oppositions, authorizing the payment of charges, approving the final account of the executor, fixing the amount of inheritance taxes, and authorizing the executor to pay the heirs and legatees the proposed distribution. All heirs or their representatives appeal.

The facts necessary to an understanding of this appeal are set forth as follows. Mrs. Martha Louise Hunter Pierson, a widow, died in February, 1971, leaving four heirs: two sons, Robert Hunter Pierson and David Pierson; one daughter, Mrs. Louise Pierson Marshal; and a granddaughter, Mrs. Diane Pierson Whaley, the daughter of a predeceased son, Clarence Pierson, Jr. After her death one of the sons, Robert Hunter Pier-son, died, and his daughter, Ann Pierson Patton, came into the succession proceedings as his dative testamentary executrix.

Mrs. Pierson left a testament which provided that the disposable portion of her estate was to go to Robert Hunter Pierson as an extra portion. There were also several comparatively small particular legacies made in the testament. The testament named Robert Hunter Pierson as executor, and he was so appointed by the Court. Subsequently, he was relieved of these duties, and the Court appointed Security National Bank in Alexandria, Louisiana, as executor.

Several donations inter vivos were made over a period of years to all four children by Mrs. Pierson. We discussed these in detail in our previous opinion. For this appeal, it is only necessary to state that the four heirs had to collate the following amounts: Robert Hunter Pierson, $22,340.00; Diane Pier-son Whaley, $21,184.80; Louise Pierson Marshal, $16,015.48; and David Pierson, $21,537.50.

After the sale of immovable property in the succession and the distribution of the particular legacies in the will, the executor possessed $189,321.62 of liquid succession assets. There were also some old coins in the estate with a face value of $10.25. Thus, the total value of succession property held by the executor was $189,331.87.

The executor made disbursements for succession debts during the administration of the succession totalling $50,105.91. Additional charges due from the succession were as follows: $5,000.00 for executor’s fees; $12,106.00 for attorney’s fees and costs; $2,000.00 for Clerk of Court’s fees; $2,061.23 for the transfer and storage of succession property; and $485.00 for remaining income tax liability. Thus, the amount of money on hand available for distribution was $117,573.73. The following table of accounts is illustrative:

Succession funds received by Executor after deducting $10,068.75, the value of particular legacies $189,321.62
Cash in currency $ 10.25
Total.$189,331.87
LESS:
Disbursements made during administration.$50,105.91
Executor’s fees . 5,000.00
Attorney’s fees and costs . 12,106.00
Clerk of Court’s fees. 2,000.00
Transfer and storage of succession property. 2,061.23
Income taxes. 485.00
Total.$71,758.14
Funds on Hand Available for Distribution $117,573.73

Not included in the above table is the value of claims against the first executor, Robert Hunter Pierson, which the executor determined had a value of $2,807.89 and, as previously stated, the value of particular legacies made in the will, which was $10,-068.75. These amounts, however, were used in considering the final distribution of the property.

The executor proposed to distribute the property as follows: The active mass was computed by taking the amount of succession assets, subtracting succession liabilities, and then adding the donations inter vivos to the remainder.

Succession assets consisted of the $189,-321.62 in liquid funds received by the executor, the $10,068.75 for particular legacies already distributed, the $2,807.89 for the claims against the succession of the first executor, Robert Hunter Pierson, and the $10.25 in currency. Succession liabilities consisted of those amounts paid and to be paid by the executor, as previously mentioned. The sum used for the donations inter vivos was the total of -the amount which we previously determined had to be collated by the heirs. The following table of accounts is illustrative:

SUCCESSION ASSETS
Succession Funds Received by Executor $189,321.62
Value of Particular Legacies. 10,068.75
Value of Claims against Succession of Robert Hunter Pierson. 2,807.89
Currency on Hand . 10.25
Total. $202,208.51
SUCCESSION LIABILITIES
Disbursements made during administration.$50,105.91
Transfer and Storage Fee. 2,061.23
Clerk of Court Fees. 2,000.00
Attorney’s Fees . 12,106.00
Executor’s Fees . 5,000.00
Income Tax Liability. 485.00
Total.$71,758.14
NET SUCCESSION PROPERTY.$130,450.37
AMOUNT OF DONATIONS INTER VIVOS .$ 81.077.78
ACTIVE MASS.$211,528.15

Since there were four branches of forced heirs, the executor determined that the disposable quantum of the succession was $70,-509.38 (Vs X $211,528.15); and that the legi-time was $141,018.77 (% X $211,528.15).

The executor computed the amount each heir would get by offsetting his forced portion by the amount collated and the value of particular legacies, if any, bequeathed to the heir. For Robert Hunter Pierson, additional offsetting amounts were used, these being the particular legacies made to legatees other than forced heirs, and the value of claims against his succession while the succession of his mother was under his administration. It should be noted that Robert Hunter Pierson’s executrix, Ann Pierson Patton, does not dispute these amounts.

Thus, the executor reached the following conclusions:

I. TO ANN PIERSON PATTON, AS THE DATIVE TESTAMENTARY EXECUTRIX OF THE SUCCESSION OF ROBERT HUNTER PIERSON.
Share of Legitime ((4 X % X $211,528.15).$35,254.69
LESS:
Donations Inter Vivos (collated) .$22,340.00 _
DISTRIBUTION DUE ROBERT HUNTER PIERSON AS FORCED HEIR.$12,914.69
Disposable portion (y3X $211,528.15) .$70,509.38
LESS:
Particular Legacy (not collated) .$ 5,913.00
Value of Claims against Succession of Robert Hunter Pierson . 2,807.89
Special legacies to legatees other than heirs . 2.895.00
Total.$11,615.89 __=
DISTRIBUTION DUE ROBERT HUNTER PIERSON AS LEGATEE $58,893.49
TOTAL DISTRIBUTION DUE ROBERT HUNTER PIERSON AS FORCED HEIR AND LEGATEE .$71.808.18
II. TO DIANE PIERSON WHALEY.
Share of Legitime ((4 X % X $211,528.15).$35,254.69
LESS:
Donations inter vivos (collated).$21,184.80 _
TOTAL DISTRIBUTION DUE DIANE PIERSON WHALEY.$14.069.89
III. TO LOUISE PIERSON MARSHAL.
Share of Legitime [}/4 X % X $211,528.15). $35,254.69
LESS:
Special legacy.$ 210.00
Donations inter vivos (collated). 16,015.48
$16,225.48
TOTAL DISTRIBUTION DUE LOUISE PIERSON MARSHAL $19,029.21
IV.TO DAVID PIERSON.
Share of Legitime (*4 X % X $211,528.15).$35,254.69
LESS:
Special legacy.$ 1,050.75
Donations inter vivos (collated). 21,537.50
$22,588.25 _
TOTAL DISTRIBUTION DUE DAVID PIERSON .$12.666.44

This distribution of funds was approved by the trial court, and, after deductions were made for each heir for inheritance taxes, the aforementioned judgment was rendered.

As previously stated, all four heirs or their representatives opposed the proposed distribution of property, and they all appealed to this Court.

At the outset, we note that the bulk of argument presented on appeal deals with issues of collation previously discussed and resolved in our prior opinion. We consider these matters closed and decline the invitation to reopen them.

The only parties to present new issues on this appeal are David Pierson and Louise Pierson Marshal. These issues are:

(1) The appropriateness of the amount of attorney’s fees and executor’s fees allowed; and

(2) The distribution of one-third of the succession mass to the Succession of Robert Hunter Pierson, as an extra portion.

I.

The executor set its fees at $5,000.00 and allowed attorney’s fees for its attorney of $12,000.00. These amounts were accepted by the trial court.

Article 3351 of the Louisiana Code of Civil Procedure provides that the executor shall be allowed a sum of two and one-half percent of the amount of the inventory of the succession as compensation for services in administering the succession. The Article also provides that the Court may increase this amount if it is inadequate.

The total inventory of the succession was $144,847.00. The executor’s fees exceeded the two and one-half percent of the inventoried value of the estate by $1,378.82. The question, therefore, is whether the usual compensation is adequate in this case.

This succession was opened on February 8, 1971. On December 3, 1971, Security National Bank was appointed dative testamentary executor, after Robert Hunter Pierson had withdrawn. The succession was fairly complicated. Numerous pleadings were filed by all the heirs and many succession debts had to be paid. In addition, the succession involved the sale of immovable property. Finally, there were fairly complicated issues involving the collation required by the heirs. Considering the amount of time that the succession was under administration and the complexity of the overall succession, we feel that the increase in the standard compensation allowed by Article 3351 is not erroneous.

We feel that the same considerations listed above are applicable to the amount of attorney’s fees due the attorney of the executor. We feel that $12,000.00 was not unreasonable under the facts of this case. See, Succession of Gomez, 226 La. 1092, 78 So.2d 411 (1955) (inventoried value of succession, $270,000.00) (attorney’s fee of $25,-500.00 not erroneous).

II.

The second issue, concerning the distribution of one-third of the succession mass to the Succession of Robert Hunter Pierson as an extra portion, revolves around Article 1510 of the Louisiana Civil Code. That article, which is found in the chapter dealing with the reduction of excessive donations, provides:

“When the value of donations inter vi-vos exceeds or equals the disposable quantum, all dispositions mortis causa are without effect.”

The amount of donations inter vivos in this case comes to $80,077.78, which was the precise amount that the heirs were required to collate. Since the succession mass came to $211,528.15, and since there were four branches of heirs, the disposable quantum would be $70,509.83 (Vs X $211,528.15). C.C. Arts. 1493 and 1505. It is argued that the amount of donations inter vivos exceeds the disposable quantum and that, therefore, the legacy left to Robert Hunter Pierson should be without effect.

We feel that this argument misapplies Article 1510. Article 1510 states a basic and elementary proposition: If a decedent, during his lifetime, has already given away the maximum amount which the law permits him to give away, there is nothing left which can be disposed of freely after his death. The remainder of the property is reserved, by law, for the forced heirs. This is the legitime.

Article 1510 does not apply in this case because of the fact that the donations inter vivos were made exclusively in favor of the forced heirs, and were required to be collated by them. In other words, the donations inter vivos were actually intended to be advances on what the heirs could one day expect to receive from their inheritance. C.C. Arts. 1227 and 1229. Considered in this light, the donations inter vivos actually composed part of the legitime; that is, they should be credited to the legitime, and not to the disposable portion.

Under the facts presented here, each heir’s forced portion is $35,254.69. However, when the appropriate offsets are made for the collated donations, each heir actually gets the following for his forced portion: $12,914.69 for Robert Hunter Pier-son; $14,069.89 for Diane Pierson Whaley; $19,029.21 for Louise Pierson Marshal; and $12,666.44 for David Pierson. Thus, a total of $58,680.23 is due the forced heirs. This is the amount of the legitime which is still due from the succession. The succession had net. assets of $130,450.37, and the executor has $117,573.73 available for distribution. There is obviously more than ample funds on hand to satisfy the legitime, and, therefore, no reason to invalidate the dispositions mortis causa.

One of the conceptual difficulties involved in this case arises because the donations had to be collated by taking less, rather than in kind. When a collation is made in kind, the concept of donations returning to the succession, and, consequently, becoming a part of the legitime, is easier to perceive. If it is assumed, under the factual setting of this case, that all of the donations were collated in kind, the amount of property in the succession after collation would be $211,528.15 ($130,450.37 plus $81,-077.78). This sum is identical to the active mass of the succession. It could not possibly be maintained in this hypothetical situation that the decedent disposed of her disposable portion, because the entire active mass, from which the disposable portion is calculated, would be contained in the succession.

We think it inconceivable that the Code contemplated different results concerning the legitime and disposable portion, depending upon whether the collation is made in kind, as in the hypothetical situation above, or by taking less, as actually happened in this case. The situation, of course, would be different had these donations not been subject to collation, either because the donor exempted them specifically or because they were donated to persons other than forced heirs. In that event, the donations could not be considered advances on the inheritance. The legitime would be $141,-018.76 (% X $211,528.15); however, the succession would have assets of only $130,-450.37. The amount of donations inter vi-vos would have exceeded the disposable portion. The legitime would have been impinged upon, and, obviously, there then could be no donations mortis causa. This is the situation to which Article 1510 speaks. Of course, since the legitime would have been impinged upon, the heirs could then have proceeded for a reduction.

We feel that to blindly apply Article 1510 to the facts of this case would be to disregard the codal scheme governing the collation of donations between the forced heirs and the reduction of excessive donations. The whole purpose beyond Article 1510, and the surrounding Articles, is simply to insure that the legitime is not impinged upon. There has been no impingement here.

For the above reasons the judgment of the District Court is affirmed. Costs on appeal are assessed equally to the four appellants.

AFFIRMED.

      . The bulk of the succession property consisted of cash because all immovable property had been previously disposed of by sale.

      . This is not to say that the Code draws no distinction between collation in kind or collation by taking less. For example, a donee of immovable property who collates in kind does not bear the loss of the property if it is destroyed after collation, without his act or fault. C.C. Art. 1261. However, if the donee elects to collate by taking less, he bears the loss. C.C. Art. 1263. We do not feel, however, that this differing treatment is contemplated by the Code when it comes to calculating the legitime and disposable portion.


author: CULPEPPER, Judge.

text:
    SOUTHERN VENTURES CORPORATION, Plaintiff and Appellee, v. TEXACO, INC., Defendant and Appellant.
    No. 6683.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Granted Feb. 23, 1979.

      Frederick B. Alexius, New Orleans, for defendant and appellant.
    Gravel, Roy & Bumes, Dan E. Melichar, Alexandria, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This case involves a lease of a service station. The plaintiff-lessor, Southern Ventures, Inc., filed suit to evict the defendant-lessee, Texaco, Inc., on the basis that the lessee had failed to exercise its option to renew the lease, and that the lease had therefore expired, and the defendant occupied the premises on a month-to-month basis only. The defendant-lessee argues that by accepting rent after the time for exercise of the option had passed, the plaintiff waived timely notice and that the lease was renewed and remains in effect. The trial judge held in favor of the plaintiff and ordered the defendant to vacate the property. From this judgment, the defendant suspensively appealed.

The essential facts are undisputed. On March 27,1958, Texaco entered into a written lease to rent from Southern Ventures a piece of property on which Texaco was to operate a service station. The lease provides for an initial term of 15 years, beginning on February 16, 1958, and for four 5-year optional renewals by the lessee. The lease instrument states that in order to exercise the options, Texaco must give written notice to the plaintiff not later than 60 days prior to the expiration of the original term. This means that in order to exercise its first option to renew Texaco had to give notice to Southern Ventures by December 17, 1973. It is an uncontested fact that Texaco did not do so.

Texaco did mail a letter to Southern Ventures on January 7, 1974 stating that it thereby exercised the renewal option. At the bottom of the letter there was a space for Southern Ventures to accept the extension by signing and returning a copy of the letter to Texaco. Southern Ventures did not sign or return the copy of the letter.

Texaco has continued to occupy the premises after February 16, 1974, the expiration date of the initial lease term. Southern Ventures accepted and cashed rent checks tendered monthly by Texaco from the date of the expiration of the original lease term until August 1, 1977. On that date, Southern Ventures advised Texaco to vacate the premises by September 1, 1977. Texaco continued to occupy the property beyond September 1, 1977, and to tender rent checks, which were refused. On December 7,1977, the plaintiff-lessor filed this suit for eviction.

The plaintiff-lessor contends that, when the lessee failed to timely exercise the option, the lease expired at the end of the initial 15-year term, and that thereafter Texaco’s occupancy of the premises was on a month-to-month basis by reconduction. The lessor cites LSA-C.C. Articles 2686 and 2689, the case of Governor Claiborne Apart ments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970) and other authorities for the rules on reconduction.

The defendant-lessee contends that under the provisions of LSA-C.C. Article 1817 the lessor’s silence and inaction in failing to respond to Texaco’s January 7, 1974 letter exercising the option, and in accepting without question the monthly rentals for a period of approximately 14 months after the original term of the lease expired, constituted a waiver of the contractual requirement as to the time of the notice. Defendant relies on two cases from our Supreme Court which applied the equitable doctrine of waiver under very similar circumstances.

The first case is Lingle v. Wainwright, 215 La. 117, 39 So.2d 843 (1949) where the written lease required notice of renewal on or before March 1,1946. The lessee did not give notice until April 22, 1946. The monthly rental for the initial term was $250, but after the renewal the rental provided by the lease was $650 per month. The lessor accepted the increased rental for almost a year before seeking to evict the lessee from the premises. The court held that the lessor’s failure to protest the untimely notice of renewal and its acceptance of the rent for almost a year constituted a waiver. The court stated:

“We think it is clear that the actions of plaintiff constitute a waiver of his right to insist that notice of renewal be given on or before March 1, 1946. While it is generally held that an option to renew a lease, provided notice is given at or before a specified time of the intention to exercise the privilege, is a condition precedent which must be complied with within the stipulated time (see Annotation, 27 A.L.R. 981 and cases there cited), it is equally well settled that such a provision is for the benefit of the lessor ‘and therefore the notice itself, or any other matter going to the sufficiency thereof, may be waived.’ 51 C.J.S. Landlord & Tenant § 62, page 611, citing Polizzotto v. D’Agostino, 170 La. 932, 129 So. 534, 536, where the court said:
“ ‘And, further, that, having accepted and acted on said notice as being sufficient, the defendant thereafter cannot be heard to raise the question of the technical informality of the notice, or complete want of notice.’ ”

The second case relied on by Texaco is Lakeside Dairies, Inc. v. Gregersen, 217 La. 510, 46 So.2d 752 (1950), in which the written lease required notice of renewal on or before August 1,1943. The lessees testified they mailed timely notice of renewal to the lessor on July 30,1943, but the lessor denied receiving this notice and the trial judge found this notice was not given. Thereafter, additional notices of renewal were given in letters dated August 15, 1944 and October 5, 1945, respectively and these were received. The lessor ignored these notices but continued to accept the monthly rentals, which were for the same amount as those paid during the initial term of the lease. The unanimous holding by the Supreme Court on this issue follows:

“Undoubtedly correct was the ruling rejecting the contention that no extension of the original lease resulted. Even if defendants did not receive plaintiff’s renewal notice (letter dated July 30, 1943), as they testified, until some 12 or 14 days after the stipulated date (August 1,1943) for exercising the extension privilege, they are without right now to urge the tardiness of that notice. Following such date defendants remained silent, at no time making protest of plaintiff’s occupancy of the premises; also they accepted and approved at least tacitly, the numerous rental payments made by plaintiff to the Jefferson Standard Life Insurance Company and credited on their mortgage indebtedness. Under these circumstances they waived the contractual requirement respecting the giving of timely notice. Lingle v. Wainwright, 215 La. 117, 39 So.2d 843.”

The district judge in the present case distinguished Lingle v. Wainwright, supra, on the basis that in Lingle the increase in the monthly rental from $250 to $650 constituted tacit acceptance by the lessor of the notice to renew. The district judge also states in his written reasons that in Lingle there was never any notice given by the lessee to the lessor of an intention to renew the lease. We find this latter basis erroneous. As stated above, there was in Lingle an untimely notice of renewal. The trial judge’s reasoning regarding the increased rental is persuasive. However, even if we were to agree that Lingle can be distinguished on this basis, we are unable to distinguish the later Supreme Court decision in Lakeside Dairies, Inc. v. Gregersen, supra. Neither the trial judge nor counsel for the lessor in the present case mention the Lakeside Dairies case.

We conclude we are compelled to follow the decisions by our Supreme Court in Lin-gle and in Lakeside Dairies. These cases have never been overruled nor modified by our highest court, and they are controlling in the present case.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of the defendant-lessee, Texaco, Inc., and against the plaintiff-lessor, Southern Ventures Corporation, rejecting plaintiff’s demands and dismissing plaintiff’s rule for eviction. All costs in the trial and appellate courts are assessed against the plaintiff-appellee.

REVERSED AND RENDERED.