text:
    B & M TRUCKING, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 60600.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Harold R. Ainsworth, New Orleans, for plaintiff-appellant.
    Ernest C. Hunt, Jr., Hunt, Godwin, Painter & Roddy, Lake Charles, for intervenor-appellant.
    Herman J. Mouton, Marshall Brinkley, Baton Rouge, for intervenor-appellee.
   DIXON, Justice.

This case involves the Louisiana Public Service Commission’s grant of a certificate of public convenience and necessity to American Vacuum Truck Company, Inc. authorizing it to transport by vacuum tank trucks over irregular routes certain commodities consisting primarily of liquid products used in the oil and gas business.

A hearing was held September 20, 1976 before the Commission with Vacuum Truck Carriers of Louisiana, Inc., B & M Trucking, Inc., Prudhomme Truck Tank Service, Inc., Gulf Coast Pre-Mix Trucking, Inc., Garret Oil Field Service, Inc. and Browning-Ferris Vacuum Services, Inc. intervening in opposition. An order was issued by the Commission on November 18,1976, with one commissioner dissenting, and subsequently amended January 11, 1977, granting the authority, but limiting the requested statewide authority to an area within a seventy-five mile radius of Westlake, Louisiana. Petitions for rehearing or reconsideration of both the initial and amended orders were denied.

An appeal to the district court was taken and the Commission’s order was affirmed.

On appeal to this court intervenors contend: (1) American was not properly before the Commission, and therefore its application for authority should not have been heard; (2) American did not sustain its burden of showing that the public convenience and necessity would be materially promoted as required by R.S. 45:164; (3) the present motor carrier service available to the public is adequate to meet its needs; (4) the Commission failed to provide a fair and impartial hearing since one commissioner expressed his disagreement with the law and jurisprudence and indicated his intention to grant the permit before any of in-tervenors’ evidence was heard; and (5) in-tervenors were denied their constitutional right to fair and equal treatment, since American received favored treatment based on race.

1. American’s appearance before the Commission.

American submitted its application for authority with the Commission on April 19, 1976; its corporate charter, however, was not filed with the Secretary of State until over a month later. Intervenors contend that since American was not incorporated at the time the application was filed that there was no “applicant” and the Commission’s grant of authority would be null and void.

American attained corporate status over three months before the hearing was held and over seven months before the Commission rendered its order granting the authority. This “after-acquired status,” although untidy, should not be fatal to the application. A contrary ruling would only result in an expensive duplication of proceedings already long finished, and produce only unnecessary delays. Neither intervenors nor the public has been harmed.

2. Did American sustain its burden of showing that the public convenience and necessity would be materially promoted?

3. Is the present motor carrier service adequate to meet the needs of the public?

The answers to these questions require a review of the evidence adduced before the Commission.

American presented five witnesses in support of its application. Ronald Griffith, president of American, which was to be located in Lake Charles, testified that in his work as an oil field contractor he was informed by his gang foreman that there were some delays in obtaining vacuum truck service in order to move salt water or mud from a storage area. Only two specific instances of delay were cited. In one instance in early 1974, W. C. Pickens Company of Dallas, Texas utilized Griffith’s services to clean out a mud tank by hand when Pickens was unable to obtain a vacuum truck. Griffith could not specify the date nor could he say what companies or how many had been called. In the other instance, Griffith was working for Union Oil of California sometime between February and May of 1976 backfilling a pit when the need for a vacuum truck to remove fluid arose. Calls were made to a vacuum truck service in Lake Charles but, having been told no trucks were available, Union Oil was forced to shut down operation until a vacuum truck was provided. Again he could be no more specific on dates. He testified that any delay would be costly since the company would continuously be billed. It was also established that at least five other vacuum services are located in the Lake Charles-Lafayette-Abbeville area, all within the seventy-five mile radius of Westlake where American was given its authority to operate, but only one certified to operate in Lake Charles itself.

Of the four public witnesses called to testify on American’s behalf, two stated they had had no trouble with existing services and had experienced no delays. However, both Mario Fattori, the division traffic supervisor for Amoco Production Company, and George Donlevy, the senior transportation analyst in the traffic department of Shell Oil Company, testified that they would make use of American’s services if the certificate were granted. Fattori expressed the desire to have more service available in the event an emergency arose, while Donlevy stated the competition would tend to let the rates seek an equitable level.

R. L. Packer, the district superintendent for Sohio Petroleum Company, testified in American’s behalf. He stated that approximately 25% of the times when a vacuum truck was needed the company would have to wait until that night or the next day when one would become available. This kind of delay resulted in substantial expense. Packer could not give any specific dates but stated the delays occurred within the first four months of 1976. He did testify, however, that 75% of the time the company could anticipate their need in advance and that in the four or five months prior to the hearing fewer problems were experienced since they were making the necessary advance arrangements. Packer also could not state what companies he had called, but only that when the trouble was in Lake Charles, Browning-Ferris would normally be called first.

George Cobb, the district production superintendent for Mobil Oil Company, testified that in the fifty to seventy-five times vacuum trucks were needed over a four month period in the Lockport Field outside Lake Charles, his foreman had to wait four to six times. It was intimated that Browning-Ferris, the company located in Lake Charles, had been called on these instances, however no specific dates could be offered.

Four witnesses appeared on behalf of in-tervenors. Edward M. McLandrich, president of B & M Trucking, Inc. of Lafayette, testified that his six vacuum tanks and seven tractors were not fully utilized but would sit idle 70% of the time. Additional business was needed. During the period in which the Sohio and Mobil representatives complained of a failure in service, B & M had never been called. He stated he could get equipment to the Lake Charles area where the problems discussed above arose in two to two and one-half hours. In the event an emergency arises, trucks are pulled off of jobs that are not as pressing and sent to where the need is greater; the consumer, however, would have to pay any additional expense incurred from transporting a truck from a job site that was further than the Lafayette terminal to the needed location.

Robert Hollier, the general manager of Gulf Coast Pre-Mix Trucking, Inc., testified that the company has three terminals, one located in Abbeville where twenty-two vacuum trucks are kept. He stated that, based upon a twenty-four hour day, seven day week, the company’s equipment was only fully utilized 25 to 30% of the time and that additional business was needed. When trucks were unavailable they were called off of other jobs, or if none could be obtained in that way, a competitor was called. Gulf Coast does not pass the added costs on to the consumer. It was admitted that some delays were experienced. Hollier also testified that for six months in 1973 five trucks were moved to the Lake Charles area but were moved out for lack of work.

Wilbur Ducharme, the general manager of Prudhomme Tank Truck Service, testified that ten vacuum trucks were located at the company’s Lafayette terminal and that there was 30% utilization of equipment based on a twenty-four hour day, seven day week. Prudhomme had been calling on customers to obtain more business.

Walter Elkins, the branch manager of Browning-Ferris Industries Vacuum Services, Inc., a publicly held corporation, testified that of the eighteen trucks located in Lake Charles sixteen were available. El-kins appeared before the Commission with detailed logs in order to refute or respond to specific charges of failures in service; as previously noted, American’s witnesses could not designate times when delays were experienced. In the year from May, 1975 to the end of April, 1976, when American filed its application, and based on a twenty-four hour day, there was 31% utilization. Using an eight hour day the utilization would reach 93%.

Much discussion followed on the competency of the utilization figures used by in-tervenors. Elkins testified that his company remains on a twenty-four hour call seven days a week since most rigs work twenty-four hours a day. However, he did admit that most work-over rigs now shut down on the weekend and work five or six ten hour days to allow their employees a day off. Therefore, he conceded, there was no reasonable expectation that vacuum trucks would be needed on Sundays. Commissioner Kennon expressed his concern that an availability study taking into account an expectancy of full utilization on weekends would be statistically misleading.

The law applicable to this case is found in R.S. 45:164, which provides in pertinent part:

“No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.”

This court has recognized the heavy burden an applicant bears; it must be clearly shown, when there are existing certificates over a certain route, that the public convenience and necessity would be materially promoted by a grant of authority to applicant. Gulf Coast Pre-Mix Trucking, Inc. v. Louisiana Public Service Commission, 336 So.2d 849 (La.1976), and cases cited therein. A ruling of the Commission is entitled to great weight as is that of other administrative bodies. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972). The courts, therefore, are limited in the scope of review of such orders. The standard of review was set out in Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965):

“. . . once the commission has decided to grant such an order and ‘ * * * has acted within its power, and not arbitrarily or grossly contrary to the evidence, and when no error of law has been committed, the court must not substitute its judgment for that of the commission, or consider the expediency or wisdom of the order, or say whether on like evidence the court would have made a similar ruling,’ Rubion Transfer & Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880, and that the courts will not interfere with action by the commission unless it is shown to be arbitrary and capricious, Louisiana Tank Truck Carriers v. Louisiana Public Service Commission, 244 La. 909, 155 So.2d 15. In other words, upon judicial review a court will not upset orders such as the one in this case unless after looking at the evidence it concludes that the commission could not have reasonably concluded that there had been a clear showing that the public convenience and necessity would be materially promoted thereby, and that the commission’s action was therefore arbitrary and capricious and a clear abuse of its power.” 247 La. at 832-33, 174 So.2d at 647.

Recently this court, in Gulf Coast PreMix Trucking v. Louisiana Public Service Commission, supra, even though reluctant to do so, overturned a ruling of the Commission. Authority had been granted to a trucking company to transport by motor freight service liquids used in the oil and gas business, including salt and fresh water, throughout the entire area of Louisiana south of Alexandria. We found that there was no evidence to support a grant of authority for transportation of petroleum products or salt and fresh water. The only showing made was a delay in delivery in five or six instances when an emergency need for a certain type of mud arose; the delays occurred over a five month period when approximately four hundred shipments had been made. Furthermore, no showing was made of damage or inconvenience to the public resulting from the delays.

American’s showing in the instant case that the public convenience and necessity would be materially promoted by a grant of authority to it clearly cannot be termed “substantial.” Nevertheless, an order by the Commission will not be overturned when there is “some evidence” upon which it could reasonably base its determination. Truck Service, Inc. v. Louisiana Public Service Commission, supra. American was able to show the following failures in service: (1) W. C. Pickens Company of Dallas, Texas was unable to obtain vacuum truck services in early 1974; (2) sometime between February and May of 1976 Union Oil of California was forced to shut down operations while awaiting a vacuum truck from a Lake Charles company; (3) Sohio Petroleum Company experienced delays in obtaining vacuum truck service in the Lake Charles area 25% of the time; (4) Mobil Oil Company had to wait for a vacuum truck in the Lake Charles area four to six times out of the fifty to seventy-five times services were needed in a four month period. Some evidence of damage or inconvenience was shown in the Sohio representative’s testimony that the company still had to pay a ten hour minimum at $75 to $100 per hour in spite of delays, in the Mobil representative’s testimony that any delays would cause additional expense for a work-over rig job, and in American’s president’s own testimony that a company was continuously billed even if operations had to cease temporarily.

No logs or records were produced to substantiate any of the above allegations. Although “generalities do not suffice,” Gulf Coast Pre-Mix Trucking v. Louisiana Public Service Commission, supra, when applicant’s witnesses are not specific enough to allow intervenors the opportunity to explain or rebut the testimony, the lack of specificity goes to the credibility of the witnesses and the weight to be given their testimony. Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra. Even though the evidence is general in nature, it is “some evidence.”

Intervenors attempted to show that their equipment was under-utilized and, therefore, they would be able to provide the service which applicant proposes without inconvenience to the public. All interve-nors testified that their equipment was fully utilized only about 30% of the time based upon a twenty-four hour day, seven day week. The branch manager of Browning-Ferris, however, indicated that, based on an eight hour day, his company’s equipment reached a 93% utilization. Although we are not in a position to designate the appropriate base period for determination of utilization of equipment, we join in Commissioner Kennon’s concern that a figure based upon a twenty-four hour day, seven day week may be misleading under the circumstances. Therefore, the evidence as a whole does not force a finding that the services offered by existing carriers within a seventy-five mile radius of Westlake, Louisiana are sufficient to meet the public need.

American presented evidence of instances, although unsubstantiated, where delays in obtaining vacuum truck services caused damage or inconvenience to the public in the Lake Charles area. It was not shown that all available services were called in order to give those other companies the opportunity to satisfy the need. If the companies located in Lafayette or Abbeville had been called, it was shown it would take at least two to two and one-half hours to reach Lake Charles. It is unclear whether the delays occurred in situations where the companies in need of vacuum truck services could or should have anticipated the need in advance in order to avoid any costly delay. Nevertheless, although the case might have been decided differently, we do not find that the record was so lacking in evidence that the Commission abused its power or acted arbitrarily and capriciously. It should be noted that American applied for authority to transport the commodities statewide yet the grant of authority was limited to an area within a seventy-five mile radius of Westlake, Louisiana. Most of the evidence indicated the service failures occurred in the Lake Charles area where American’s terminal would be located. We will not substitute our judgment for that of the Commission.

4. The failure of one of the commissioners to apply the law and jurisprudence.

Intervenors allege that certain remarks made by one of the commissioners indicated his bias and could have had a prejudicial effect upon the other commissioners. The commissioner at various points in the proceeding interjected his personal philosophy in support of a free enterprise system and remarked that he felt intervenors were attempting to keep others out of business by perpetuating a legally authorized monopoly. The record does disclose an element of bias by the commissioner; however, we will not upset the order of the Commission on this record. Rule 27 of the Louisiana Public Service Comrpission Rules of Practice and Procedure provides that hearings will be conducted by at least three commissioners. (Under certain circumstances, exceptions are made to allow the continuation of a hearing with less than three commissioners). Rule 44 provides that an order must be signed by at least three commissioners. In the instant case, five commissioners were present at the hearing and four commissioners signed the order while one commissioner dissented. Even without the signature of the biased commissioner, the requisite three signatures to grant the authority requested are present. We also find no evidence in the record that the remarks made had any effect upon the opinions of the other commissioners. Intervenors should in the future consider filing a motion to recuse a commissioner at the time when potential prejudice becomes apparent.

5. Prejudicial treatment afforded American based on race.

Intervenors contend that they were the subject of “reverse discrimination” and thereby were denied their constitutional right to fair and equal treatment. They allege that during a pre-trial conference the Commission’s representative remarked that “other considerations” such as American’s “minority group ownership” would play a part in granting the certificate of public convenience and necessity. The purported remarks, however, were “off the record.”

Intervenors point to the Shell Oil representative’s remarks as to Shell’s policy of encouraging the initiation of minority business ventures. However, when objection was made, Chairman Lambert responded that his concern was merely the facts which related to the application. Later both Chairman Lambert and another commissioner stated that any decision made by them would not be based upon race but rather upon the facts and the evidence. The record does not disclose that racial bias played any part in the Commission’s decision to grant the certificate of authority.

For the reasons assigned, the judgment appealed from upholding the Public Service Commission’s grant of a certificate of public convenience and necessity to American Vacuum Truck Company, Inc. is affirmed.

SANDERS, C. J., and MARCUS, J., dissent.

SUMMERS, J., dissents. The abundance of facilities in the area certified convince me that no adequate showing of necessity appears in this record.


source: Caselaw Access Project

author: PER CURIAM. CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Gerald FRANK and Robert Grant.
    No. 60359.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for Robert Grant.
    Ronald J. Rakosky, New Orleans, for Gerald Frank.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry P. Julien, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

CALOGERO, J., dissents and assigns reasons.

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

CALOGERO, Justice,

dissenting.

Defendants, acknowledged heroin addicts, were convicted of selling five tin foil packets of heroin (retail consumption quantities) to an undercover police officer. They were each sentenced to life imprisonment.

While perhaps not relevant to guilt or innocence, the degree of defendants’ involvement and relative participation in drug trafficking is a factor affecting culpability of which in my view the jury should have been made aware, in light of defendants’ effort in this regard.

I would find merit in assignment of error number two, because I believe that cross examination, a right of large proportions to put it minimally, was improperly restricted. Defendants should have been allowed to develop facts concerning the various levels of heroin distribution. Recently we allowed the state to produce testimony concerning international trafficking in heroin with obvious prejudice to a non-addict defendant in State v. Franklin, 353 So.2d 1315 (La.1977). Whatever the technical distinctions between the two cases, we seem to adopt a double standard when we refuse to allow these defendants, where possibly to their advantage, to show the jury that they are indeed very small fish in a rather large pond.

For these reasons I dissent.


text:
    STATE of Louisiana v. Kevin MANIERI, Sheldon Manieri.
    No. 61378.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: State of Louisiana through the District Attorney, John M. Mamoulides, applying for writ of review. Parish of Jefferson.

Writ refused.

DIXON, J., is of the opinion the ruling of the trial judge was correct.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Jessie REDDICK et al.
    No. 61408.
    Supreme Court of Louisiana.
    Jan. 17, 1978.
   In re: State of Louisiana through District Attorney, Harry F. Connick, applying for writs of certiorari, mandamus, prohibition- and stay order.

Writ denied.

SANDERS, C. J.,

concurs in denial. The State’s remedy is to nolle prosequi the count. See L.S.A.-C.Cr.P. art. 691.

SUMMERS, J.,

would grant this writ. On the showing made the trial judge abused his discretion. Nevertheless, the State may nolle prosequi the count involving Watson.


text:
    STATE of Louisiana v. Nick DEBENEDETTO.
    No. 61391.
    Supreme Court of Louisiana.
    Jan. 19, 1978.
   In re: Nick Debenedetto applying for writs of certiorari, mandamus and prohibition. E. Baton Rouge Parish.

Writ granted. Relator is ordered released.


text:
    STATE of Louisiana v. Ray T. WOODALL, Jr.
    No. 61359.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Ray T. Woodall, Jr., applying for writ of review. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert Morris SKIPPER v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 61292.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Robert M. Skipper applying for writs of habeas corpus and certiorari. Parish of Madison.

Denied.


text:
    STATE of Louisiana ex rel. Edgar HOLIDAY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61290.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Edgar Holiday applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Willie R. SANDIFER v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 61281.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Willie R. Sandifer applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Tommy BARBER v. Hayden J. DEES, Warden.
    No. 61270.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Tommy Barber, applying for writ of certiorari. Parish of Livingston.

Writ denied.


text:
    STATE of Louisiana v. Joshua M. BURSH, II.
    No. 61251.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Joshua M. Bursh, II, applying for supervisory writ of certiorari, and motion to stay arraignment. Parish of Lincoln.

Denied.


text:
    STATE of Louisiana v. Ray T. WOODALL, Jr.
    No. 61243.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Ray T. Woodall, Jr., applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Felton WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61109.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Felton Williams applying for writs of certiorari and habeas corpus. Parish of Orleans.

Writ refused.


text:
    STATE of Louisiana ex rel. Robert HARRISON v. Matthew S. BRANIFF, Judge, Criminal District Court.
    No. 60974.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Robert Harrison, applying for writ of mandamus and prohibition. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Joel T. PRICKETT, Jr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60653.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Joel T. Prickett, Jr., applying for writ of habeas corpus. Parish of Jefferson.

Denied.


text:
    Louis A. GATHRIGHT v. Talmadge A. SMITH and Margie S. Lawrence.
    No. 61289.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Talmadge A. Smith and Margie S. Lawrence, applying for certiorari or writ of review, to the Court of Appeal, Second Circuit. Parish of Morehouse.

Writ granted. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana In the Interest of Andrew Leonard DINO.
    No. 61283.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Andrew Leonard Dino, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Gor-man E. Taylor, Judge of the Juvenile Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of February, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 10th day of March, 1978, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Norman SMITH, Dale Deverney, Ben Wilson, Jeannine Collins.
    No. 61276.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: State of Louisiana, applying for writ of review. Parish of Orleans.

Writ granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Matthew S. Braniff, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of February, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a day to be fixed by this Court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Mrs. Gladys Marie C. DAVIS et al. v. RELIANCE ELECTRIC CO. et al.
    No. 61250.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Mrs. Gladys Marie C. Davis, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1238.

Writ denied.


text:
    Mrs. Gladys Marie C. DAVIS et al. v. RELIANCE ELECTRIC CO. et al.
    No. 61303.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Houston General Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1238.

Writ denied.


text:
    Donald H. McGREGOR, Individually and as Administrator of the Estate of his minor son, Robert T. McGregor v. UNITED FILM CORP. et al.
    No. 61261.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Guaranty Broadcasting and the Travelers Insurance Co., applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1224.

Writ denied.


text:
    Donald H. McGREGOR, Individually and as the Administrator of the Estate of his minor son, Robert T. McGregor v. UNITED FILM CORP. et al.
    No. 61267.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: United Film Corp., Telefilms, Inc. and Anthony Favaro applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1224.

Writ denied.


text:
    Irby HEBERT et al. v. Kenneth M. STANSBURY et al.
    No. 61209.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Kenneth M. Stansbury, Marie Frank Elmer and Joan M. Mouton, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 351 So.2d 253.

Writ denied.


text:
    Catherine Ann Young CRAFT et al. v. Leroy TRAHAN et al.
    No. 61190.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Catherine Ann Young Craft, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 351 So.2d 277.

Writ refused.


text:
    PARISH NATIONAL BANK v. Willie J. BLAIR, Sheriff and Ex-Officio Tax Collector, Washington Parish, Louisiana.
    No. 61263.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Parish National Bank of Bogalusa applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 351 So.2d 1242.

Writ denied.


text:
    Lucy Percy MADDOX v. Elena PERCY.
    No. 61254.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Mrs. Lucy Percy Maddox applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Feliciana. 351 So.2d 1249.

Denied.


text:
    In the Matter of the Succession of William W. HARLEAUX.
    No. 61272.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Osborne and Richard applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 351 So.2d 1267.

Granted. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Robert L. RABORN v. Lee B. OURSO, d/b/a Lee Ourso Repair Service.
    No. 61285.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Robert L. Raborn, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1271.

Writ denied.


text:
    Moses MACK v. UNITED STATES FIDELITY AND GUARANTY CO. et al.
    No. 61265.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Moses Mack applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1306.

Denied.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. C. F. BREAUX INVESTMENT CO., INC.
    No. 61264.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: State of Louisiana through the Department of Highways, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 351 So.2d 1321.

Writ denied.


text:
    SMITH-HEARRON v. FRAZIER, INC. et al.
    No. 61296.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: William Elmo Frazier, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn. 352 So.2d 263.

Writ denied.


text:
    Gracie SAPP v. J. A. WEST COMPANY.
    No. 61262.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Gracie Sapp applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn. 352 So.2d 268.

Writ denied.


text:
    STATE of Louisiana v. Gladys MONETTE.
    No. 61260.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Gladys Monette, applying for cer-tiorari, prohibition and mandamus. Parish of Natchitoches.

Writ denied.


text:
    Perry Lee FISHER, M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS et al.
    No. 61304.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Perry Lee Fisher, M.D., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 729.

Writ refused. The result is correct.


text:
    STATE of Louisiana v. Lonnie C. JACOBS.
    No. 61380.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Lonnie C. Jacobs applying for writs of certiorari, prohibition and mandamus. Parish of Jackson.

Writ denied.


text:
    Jacquelyn C. STARKS v. RICHARD’S FORD, INC., et al.
    No. 61279.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Jacquelyn C. Starks applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ not considered. No rehearing applied for as court of appeal judgment is final.


text:
    STATE of Louisiana v. Steve CHAPMAN.
    No. 61242.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Steve Chapman applying for remedial writs. Parish of Orleans.

Writ granted. Relator’s sentence is vacated and set aside. The case is remanded to the trial judge to appoint a sanity commission in accordance with La.Code of Crim. Procedure, Art. 650 et seq. with reference to relator’s mental capacity to proceed.

SANDERS, C. J., and SUMMERS, J., dissent from the granting of the writ.


text:
    STATE of Louisiana v. Kenneth SMITH.
    No. 61282.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Kenneth Smith, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Vermilion.

Writ denied.

SUMMERS, J., recused.


text:
    J. C. FONTENOT v. Succession of Robert Glen GARLAND, Hasker Garland and Sandra G. Trahan.
    No. 61284.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Succession of Robert Glen Garland, Hasker Garland and Sandra G. Trahan applying for certiorari, or writ of review, to the Court of Appeal Third Circuit. Parish of Evangeline. 352 So.2d 251. Denied.

TATE, J., would grant the writ,


text:
    Newt V. MILLS v. Jerry A. ADAMS.
    No. 61331.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Newt V. Mills, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 352 So.2d 287.

Granted; appeal reinstated. See Walker v. Jones.

SANDERS, C. J., and SUMMERS, J., dissent from the granting of this writ.


text:
    Allimire MIRHOSSEINY v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College et al.
    No. 61236.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Allimire Mirhosseiny applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1318.

Writ denied.

TATE, DIXON and DENNIS, JJ., would grant the writ.'


text:
    Charles J. BERGERON, Jr. v. Katherine B. BERGERON.
    No. 61274.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Katherine B. Bergeron applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 351 So.2d 1296.

Writ denied. There is no error of law. The application presents only a factual question.

TATE, DIXON and ' CALOGERO, JJ., would grant the writ.


text:
    I. I. ROSEN v. Walter REED and Interstate Fire & Casualty Co.
    No. 61275.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Walter Reed, and Interstate Fire and Casualty Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 351 So.2d 1284.

Denied.

SANDERS, C. J., SUMMERS and DENNIS, JJ., would grant the writ.


text:
    Larry D. BODIN v. Gilbert DAUPHINE, Sterling Sugars, Inc., and American Manufacturers Mutual Insurance Co.
    No. 61287.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Larry D. Bodin applying for cer-tiorari, or writ of review to the Court of Appeal, First Circuit. Parish of St. Mary. 351 So.2d 1275.

Writ denied.

TATE and DIXON, JJ., would grant the writ.


text:
    Stephen Merrill DEPNER v. Dorothy Paxon BARKER.
    No. 61271.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Stephen Merrill Depner, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 351 So.2d 1264.

Writ denied.

SUMMERS, CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted.


text:
    In re INTERDICTION OF Mrs. Minnie Foster REDMOND.
    No. 61286.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Willie Floyd Redmond, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Helena. 351 So.2d 1256.

Writ denied.

DIXON and TATE, JJ., would grant the writ.


text:
    PARISH NATIONAL BANK v. Willie J. BLAIR, Sheriff and Ex-Officio Tax Collector, Washington Parish, Louisiana.
    No. 61246.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Willie J. Blair applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 351 So.2d 1242.

Writ denied.

DENNIS, J., is of the opinion the writ should be granted.


text:
    Donald H. McGREGOR, Individually and as Administrator of the Estate of his minor son, Robert T. McGregor v. UNITED FILM CORP. et al.
    No. 61255.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Donald H. McGregor, individually and as administrator of estate of his minor son, Robert T. McGregor and Robert T. McGregor, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1224.

Writ denied.

DIXON, J., would grant this writ.


text:
    STATE of Louisiana v. Louins C. JOHNSON.
    No. 61247.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Louins C. Johnson applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana v. Fleming MOORE.
    No. 61295.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: State of Louisiana through District Attorney, Ossie Brown, applying for supervisory writs. East Baton Rouge Parish.

Writ denied.

SUMMERS and DIXON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Rufus HENRY.
    No. 61415.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In re: Rufus Henry, applying for writ of review. Parish of St. Mary.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


author: LOTTINGER, Judge. PONDER, Judge,

text:
    LOUISIANA POWER & LIGHT COMPANY v. Jeanne Leche, wife of Vernon L. CALDWELL, Jr., et al.
    No. 11577.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Writ Refused Jan. 13, 1978.
    See also, La.App., 353 So.2d 371.

      Donald L. Peltier, Peltier & Peltier, Thi-bodaux, and Eugene G. Taggart, Monroe & Lemann, New Orleans, for plaintiff and appellant.
    John F. Pugh, Pugh, Lanier & Pugh, Thi-bodaux, for defendants and appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an expropriation suit instituted by Louisiana Power & Light Company (LP&L), pursuant to LSA-R.S. 19:2(7), seeking a right of way across property belonging to the defendants, Jeanne Leche, wife of Vernon L. Caldwell, Jr., John Vernon Caldwell and Albert B. Caldwell. From a judgment of the Trial Court granting a right of way other than that selected by LP&L, plaintiff has appealed.

The property owned by defendants over which this right of way is sought is located in the northwest quadrant of the intersection of the old La. 20 and a blacktop parish road, generally referred to as the Forty Arpent Road, in Lafourche Parish, Louisiana. LP&L seeks to expropriate a right of way for its 230 KV transmission line along and adjacent to the Forty Arpent Road across defendants’ property. The width of the right of way sought is 100 feet, with 40 feet of the 100 feet being inside the existing Forty Arpent Road right of way. The center line of the proposed right of way is 10 feet north of the north edge of the road right of way, with the power poles being located along the right of way center line and spaced approximately 500 feet apart. The function of the 230 KV line is to transport power between LP&L’s Thibodaux electric substation and LP&L’s Terre-bonne electric substation, located approximately 8 miles south of the city of Thibo-daux.

As proposed, the LP&L route would leave the substation and travel south along the east side of La. 20 to the parish road, thence turn west along the north side of the parish road until the west boundary line of defendants’ property where it would meet up with a right of way previously acquired by LP&L.

There is presently a 100 foot right of way owned by LP&L existing across defendants’ property parallel to and approximately 2,300 feet north of the parish road. Defendants proposed that the 230 KV line be constructed adjacent to this existing right of way with the acquisition of only as much additional right of way as needed, up to their western boundary line, thence turning south along the western boundary line until the intersection of the western boundary line and the parish road, at which point this right of way would meet up with the previously acquired LP&L right of way. Defendants argue basically that their farming operations conducted on the subject property would be greatly disrupted by the LP&L proposal in that the headland located immediately north of the parish road would have to be reconstructed, and the crop spraying would be adversely affected by a powerline next to the road.

The Trial Judge in his written reasons for judgment found that “prior to the filing of the suit, defendants had requested that the right of way be located adjacent to an earlier right of way already in existence across their property.” The Trial Judge further concluded “that the evidence does not indicate to this Court that plaintiff conducted bona fide negotiations with the landowner before planning its route or exercising its right of condemnation. As the Court recalls the testimony of Mr. Bauer the right of way south from the substation to the intersection of the black top road with the St. Patrick Highway was procured from the Leverts before they even contacted the defendants in the suit and apparently plaintiff determined the crossing spot without considering the reaction of defendants to this second invasion of their property.”

The Trial Judge granted LP&L a right of way along the route suggested by defendants and awarded $22,500.00 as just compensation. In appealing LP&L contends the Trial Judge erred:

“(1) By substituting an alternate route for the one selected by the electric utility for the construction, operation and maintenance of its 230 KV transmission line. “(2) By imposing upon the electric utility an alternate route which is not feasible from an economic and engineering standpoint and which does not fulfill the needs of the electric utility for the construction, operation and maintenance of its 230 KV transmission line.
“(3) By awarding expert fees for the defendants’ real estate appraisers in amounts that are unduly excessive.”

ERRORS NOS. 1 AND 2

In support of errors numbers 1 and 2, plaintiff-appellant basically argues that the route selected by LP&L is the best route from the standpoint of sound economic and engineering practices; that the alternate route is based on the convenience of the landowners; and that the Trial Court did not make any specific fact finding that the 230 KV line at the location selected by LP&L would be unsafe.

Generally it is well settled and recognized in condemnation proceedings that the expropriating authority’s selection of the route or location will not be disturbed unless such authority has abused its discretion, acted in bad faith, or acted arbitrarily or unreasonably, Central La. El. Co. v. Covington & St. Tammany L. & I. Co., 131 So.2d 369 (La.App. 1st Cir. 1961). Some jurisdictions make a distinction between public and private expropriating authorities, 29A C.J.S. Eminent Domain § 90 (1965), however, in Louisiana no such distinction has been made. In addition, it is also settled that the availability of additional or alternate routes will not affect the authority’s use of their selected route, Central La. El. Co. v. St. Tammany L. & I. Co., supra.

This expropriation proceeding was instituted pursuant to LSA-R.S. 19:2(7) which provides:

“Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property:
* * * # * *
“(7) Any domestic or foreign corporation created for the purpose of generating, transmitting and distributing electricity and steam for power, lighting, heating, or other such uses. The generating plants, buildings, transmission lines, stations, and substations expropriated or for which property was expropriated shall be So located, constructed, operated, and maintained as not to be dangerous to persons or property nor interfere with the use of the wires of other wire using companies or, more than is necessary, with the convenience of the landowners; * * *.” (Emphasis supplied).

We note that of the nine categories under LSA-R.S. 19:2 authorized to expropriate needed property, it is only in category number 7 wherein there is any mention of the convenience of the landowners. Certainly, there must be some significance to this distinction and difference.

Plaintiff-appellant cites to this Court the case of Central La. El. Co. v. Covington & St. Tammany L. & I. Co., supra, for the proposition that an electric utility company is not required to suit in detail the convenience of each owner and to protect him from all possible danger. We do not disagree with this rule, however, each case must be determined by its own facts.

Generally, the route selected must be based on sound engineering and economic principles, however, we conclude that under LSA-R.S. 19:2(7) the convenience of the landowner is an element that must be considered.

In discussing LSA-R.S. 19:2(7), and in particular the convenience of the landowner, the Court in Southwest Louisiana Electric Mem. Corp. v. Simon, 207 So.2d 546, 553 (La.App. 3rd Cir. 1967), writ refused, 252 La. 104, 209 So.2d 37 (1968) for reasons that judgment was not final, said:

“The necessity for expropriation for public purposes or in the public interest relegates the landowner’s right to all of the aspects of his ownership to a secondary position. But we think it clear that the statute requires the court to consider the landowner’s safety and convenience as the primary consideration and the selection of location by the condemnor to be the secondary consideration.”

To disregard the added language of convenience of the landowners found in LSA-R.S. 9:2(7) and not found elsewhere in the expropriation authority granted by LSA-R.S. 9:2 would be to completely overlook the obvious intent of the Legislature that the convenience of the landowners be taken into consideration in determining whether the expropriating authority has abused that discretion granted it.

In determining whether the expropriating authority has abused the discretion granted it in route selection, all factors including sound engineering and economic principles as well as the inconvenience which the selected route may cause the landowner must be considered. “[I]t must be shown that the convenience of the landowner was not completely ignored by the condemnor in the selection of the route; and, where the record indicates that an alternate route is much more safe and convenient to the landowner without any unreasonable inconvenience to the condemnor, this court is of the opinion that such alternate route should be used.” Southwest Louisiana Electric Mem. Corp. v. Simon, supra at 561. In analyzing the reasons the plaintiff-appellant rejected the alternate route offered by defendants, the Trial Judge in written reasons said:

“Mr. Michael Bauer, Jr., transmission engineering supervisor for plaintiff, selected the route which plaintiff wishes established and rejected defendants’ request to erect the line adjacent to the present H line for several reasons: a) The proposed route was more economical (for plaintiff), b) It required less right of way for defendants. c) It would cause minimal interference with the farming operations of defendants, d) In event of a hurricane there would be no danger of one line falling into another and putting out the whole system, e) It would not interfere with crop dusting, f) Construction would be easier and the construction would cause less interference to the farming operation, g) It was in a better position for a future tie-in with the City of Thibo-daux. h) It would be 500 feet shorter than following along the H line. On cross-examination however Mr. Bauer negated some of these reasons by admitting that the new line would not necessarily be a hazard if erected next to the H line and there would be no electrical or construction problem in putting them next to each other. He further opined that crop dusters are not concerned with lines as long as they are aware of them. It would seem to the court on this point that there is a distinction to be made between whether a crop duster is ‘concerned’ with a line in place or whether it interferes with a proper method of crop dusting. At any rate an analysis of the reasons would appear to greatly favor the plaintiff without being overly concerned with inconvenience to the defendants.”

In reviewing this record, the only evidence we find to support plaintiff-appellant’s argument that its route is more economical is the general statement that it would be. There is no indication how much less expensive plaintiff’s route would be vis-a-vis defendants’. It is true that plaintiff’s route would require less right of way from defendants, but we question, the validity of this argument, when defendants offer more right of way in order to avoid major inconvenience with their farming operations. Two pilots, one from each side, testified as to the inconvenience caused by location of the line next to the parish road. The Trial Judge obviously believed the argument presented by defendants’ pilot when the pilot said that it would be better to have a new line next to the existing line inasmuch as flying under a line located next to a highway can cause problems for the motoring public. We certainly feel that the Trial Judge was reasonable and not in error in this conclusion. All in all, the evidence viewed in its entirety, we, too, conclude that the convenience of the landowner is best served by the alternate route, and it is not an unreasonable burden on the plaintiff that this route be selected.

We are impressed with the fact that for some time previous to this expropriation plaintiff has enjoyed a 100 foot wide right of way across defendants’ land, running in a generally east-west direction, approximately 2,300 feet north of and parallel to the Parish Road. To allow LP&L to expropriate an additional right of way across defendants’ land without giving any serious consideration to a partial utilization of the existing right of way, and attempting to group these electric lines in a corridor so as to minimize the inconvenience to the landowner, would be to completely pay no attention to the convenience to the landowners language found in LSA-R.S. 19:2(7).

In times past when it was considered that only one right of way would be sought from a landowner, the public was not as concerned with the disruption to the land or inconvenience to the landowner that was caused thereby. However, as our population increased, the increased demand for utility services has required the laying of new lines, the seeking of new and additional rights of way, and the reasonable possibility that it will be necessary to again cross land previously crossed. Is it not a reasonable approach to require that this continual carving up of individual parcels of land be held to a minimum by requiring the use of corridors? The convenience to the landowners exercised with reason by the Court would demand such. LSA-R.S. 19:2(7).

We, therefore, find no error on the part of the Trial Judge in his selection of this alternate route proposed by the defendants. It is, however, brought to the Court’s attention by plaintiff, without any dispute by defendants, that the route approved by the Trial Judge is deficient in that it does not provide sufficiently for land for guy wire anchor locations at the corners, or an adequate and appropriate exit route from the substation to the east-west traverse of defendants’ property. We agree. Therefore, we remand this case to the Trial Court for the limited purpose of allowing the introduction of additional evidence to properly locate and describe the additional land needed, as well as damages for the taking thereof.

ERROR NO. 3

Plaintiff-appellant lastly argues that the expert witness fees awarded defendants’ experts were excessive and amount to an abuse of discretion. The Trial Court fixed the fee of John W. Dugan at $2,700.00 for 9 days at $300.00 per day, and the fee of Preston Babineaux at $4,000.00, or 13 days at $350.00 per day. The Trial Judge found as a matter of fact that Mr. Dugan devoted 9 days to his appraisal and Mr. Babineaux 13 days. With this conclusion we can find no error, however, we are of the opinion that the Trial Judge was excessive in his award on a daily basis and reduce same to the rate of $200.00 per day each, or for John W. Dugan, $1,800.00 and Preston Babi-neaux, $2,600.00. Louisiana Intrastate Gas Corp. v. Girouard, 336 So.2d 1042 (La.App. 3rd Cir. 1976); Southwest Louisiana Electric Mem. Corp. v. Huval, 317 So.2d 264 (La.App. 3rd Cir. 1975), writ refused 320 So.2d 913 (1975).

DAMAGES

Plaintiff-appellant does not assign as error the award made by the Trial Judge for the taking of the alternate route. In seeking a reversal of the award of the alternate route, plaintiff-appellant does discuss at length in brief the proper award for its proposed route. Inasmuch as we agree with the Trial Judge in his award of the alternate route, and appellant does not assign as error the award for such taking there is no need for this Court to discuss the award made.

Therefore, for the above and foregoing reasons, IT IS ORDERED ADJUDGED and DECREED that the judgment of the Trial Court be and it is hereby amended to reduce the expert witness fees of John W. Dugan to $1,800.00 and Preston Babineaux to $2,600.00, and as amended it is affirmed; IT IS FURTHER ADJUDGED and DECREED that this matter be and it is hereby remanded to the Trial Court for the limited purpose of the taking of additional evidence in accordance with the views expressed hereinabove. All costs of this proceeding are assessed to plaintiff-appellant.

AMENDED, AFFIRMED AND REMANDED.

PONDER, Judge,

concurring in part and dissenting in part.

I agree with the reduction of the fees awarded to the appraisers.

I disagree, however, with the affirmation of the trial court’s substitution of routes.

“. . . in the location of rights-of-way considerable discretion is vested in the expropriating authority and the courts will not disturb or interfere with the exercise thereof in the absence of fraud, bad faith or conduct or practices amounting to an abuse of the privilege.” Central Louisiana Electric Co., Inc. v. Covington & St. Tammany Land & Improvement Co. (1st Cir., 1961), 131 So.2d 369 at page 375.

I have been unable to find fraud, bad faith or conduct or practices amounting to an abuse of the privilege in this record.

The reliance by the trial court and my brothers on Southwest Louisiana Electric Mem. Corp. v. Simon, (3rd Cir., 1967) 207 So.2d 546, writ refused, 252 La. 104, 209 So.2d 37 (1968), for the reason that the judgment was not final, I believe to be misplaced. The quotation therefrom in the above opinion was from the first rehearing. The effect was somewhat lessened by the following on rehearing:

“We did not hold in the original opinion, and we do not hold now, that the con-demnor must negotiate with each landowner in the selection of a site; however, it must be shown that the convenience of the landowner was not completely ignored by the condemnor in the selection of the route; and, where the record indicates that an alternate route is much more safe and convenient to the landowner without any unreasonable inconvenience to the condemnor, this court is of the opinion that such alternate route should be used.”

I therefore dissent.

      . This substation is located on the east side of La. 20 approximately 2000 feet north of its intersection with the Forty Arpent Road.


author: FORET, Judge.

text:
    Howard L. JONES, Plaintiff-Appellee, v. Unopened Succession of Pete BRADFORD et al., Defendants-Appellees, and Commercial Credit Equipment Corporation, Intervenor-Appellant.
    No. 6183.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.

      Francipane, Regan & St. Pee by Richard T. Regan, Metairie, for third party-appellant, Commercial Credit.
    Falkenheiner, Calhoun & Murray by George C. Murray, Jr., Lyman S. Gore, Vi-dalia, for plaintiff-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   FORET, Judge.

On August 26, 1975, petitioner, Howard L. Jones, obtained a non-resident writ of attachment against various pieces of equipment owned by the defendant, “Unopened Succession of Pete Bradford, et al,” seeking to recover the sum of $7,250.55 on open account.

On February 4,1976, while the equipment was still under attachment by the sheriff, Commercial Credit Equipment Corporation, hereinafter referred to as CCEC, filed a petition of intervention asserting a superior vendor’s privilege and chattel mortgage against a portion of the equipment which had been attached by the plaintiff. Inter-venor based its claim on a purchase security agreement executed by Pete Bradford on September 23, 1974, on which there was a principal balance due of $4,751.88 and which agreement provided for a delinquency charge of 5% on unpaid installments plus all attorney’s fees and court costs. Additionally, a Mississippi financing statement covering intervenor’s portion of the equipment was filed pursuant to the Uniform Commercial Code on September 24, 1974, with the Chancery Clerk of Franklin County, Mississippi, the county seat of Pete Bradford’s domicile.

Intervenor obtained a court order on February 4, 1976, directing the Sheriff for the Parish of Concordia to seize, appraise, and sell that portion of the equipment on which intervenor claimed its privilege.

On April 20, 1976, the Sheriff, after public advertisement and appraisal, held a public sale of that portion of the property on which intervenor claimed a privilege. The said property was purchased by intervenor for the sum of $5,000.00. The Sheriff collected the sum of $5,000.00 from interve-nor’s agent.

On April 30, 1976, petitioner, Howard L. Jones, filed a “Petition in Intervention Contending Privilege” seeking to have his privilege recognized as prior in rank to the privilege claimed by intervenor, CCEC. On May 4,1976, intervenor filed a rule to rank privileges and distribute proceeds of judicial sale seeking to have intervenor’s claim recognized as prominent over the privilege of plaintiff.

On June 11, 1976, a hearing was held on intervenor’s rule. Stipulations of fact were entered into as follows:

It is stipulated that on or about September 23, 1974, Carter Equipment Company of Jackson, Mississippi, entered into a purchase-security agreement with Pete Bradford; the purchase-security agreement, a copy of which is on file in the record, was recorded in connection with the uniform commercial code on September 24, 1974, in Franklin County, Mississippi. Subsequent to the recordation in 1974, the equipment was removed to Louisiana and then a non-resident writ of attachment was issued at the request of Mr. Howard L. Jones on August 26,1975. Commercial Credit then filed an intervention asserting its right under the purchase-security agreement executed and recorded in Mississippi and asserting a balance due to Commercial Credit of $4,751.88 plus cost. Mr. Jones has also filed an intervention claiming a privilege. The proceedings here are to rank the privileges. A sheriff’s sale was provoked by CCEC and took place on April 20, 1976. The equipment was sold to Commercial Credit Equipment Corporation for a bid of $5,000.00. The sheriff has collected the sum of $5,000.00 and is still holding the money.
Commercial Credit Equipment Corporation also stipulated the correctness of the amount of the claim of Howard L. Jones as claimed in the petition; and Howard L. Jones stipulated the correctness of the amount of the claim of Commercial Credit Equipment Corporation as claimed in the petition.

On November 2, 1976, the trial judge signed a judgment which stated in part:

“When this rule was filed and submitted, plaintiff had not gone forward with his suit and his lien under the attachment had never been recognized. The proper procedure is to try the plaintiff's main demand and the intervenor’s claim at the same time and in that proceeding, determine rank. In this rule, since plaintiff’s main demand has never been brought to trial, the rule to determine priority of liens was prematurely filed.”
“ . . . the determination of rank of liens is to be made by proper proceedings in the regular trial of this matter.”

Thereafter, intervenor filed a motion to fix the case for trial on the merits in accordance with the judgment of November 2, 1976. On December 28, 1976, petitioner filed a second petition in intervention and rule to rank privileges and distribute proceeds of judicial sale, which was set for hearing on February 11, 1977. Intervenor, CCEC, in response to plaintiff’s second petition in intervention and rule to rank, filed: (a) Exceptions of prematurity and res judi-cata and (b) Rule to annul judgment.

On February 11,1977, the court overruled the exception of prematurity and res judi-cata filed by intervenor, annulled the judgment on confession of judgment previously obtained by plaintiff on June 16, 1976, and found plaintiff, Howard L. Jones, and inter-venor, CCEC, to be “open account creditors of equal rank” and ordered that the proceeds on deposit with the Sheriff resulting from the judicial sale were to be split one-half to the plaintiff and one-half to interve-nor after deducting all court costs and Sheriff’s fees and commissions. This judgment was signed March 10, 1977. Interve-nor has appealed the said judgment, suspen-sively. Neither plaintiff nor defendant has appealed the judgment of March 10, 1977; however, plaintiff, Howard L. Jones, has answered the suspensive appeal of interve-nor.

Appellant assigns the following as manifest errors of the trial court:

1. The trial court erred in overruling intervenor’s exceptions of prematurity and res judicata and proceeding to a hearing on plaintiff’s rule to rank privileges.
2. The trial court erred in disregarding the respective privileges of plaintiff and intervenor by holding that neither plaintiff nor intervenor had a privilege whatsoever; in finding that both plaintiff and intervenor were open account creditors of equal rank; in failing to find intervenor’s privilege to be valid and superior to any privilege in favor of plaintiff; in failing to award intervenor the sum of $4,751.88 (or the net amount after deducting costs) from the proceeds of the sheriff’s sale, and in awarding one-half of the proceeds to the plaintiff.

Decedent, Pete Bradford, executed a purchase-security agreement by which he bought the equipment which was seized under the writ of attachment. That agreement was a type of security device by which Bradford did not acquire title or ownership until such time as the full purchase price was paid. It was stipulated as between plaintiff and intervenor that the purchase-security agreement was recorded in Franklin County, Mississippi, in accordance with the uniform commercial code of that state.

Conditional sales are invalid if executed within this State. However, if executed pursuant to the law of another state, conditional sales will be recognized as enforceable in Louisiana unless the object sold has been removed to this State with the consent or knowledge of the vendor and/or the intent of the parties thereto was to circumvent the law of this State. Fisher v. Bullington, 223 La. 368, 65 So.2d 880 (1953); Pecora v. James, 150 So.2d 90 (La.App. 4 Cir. 1963); May Finance Co. v. Nagy, 62 So.2d 152 (La.App. 2 Cir. 1952), affirmed 223 La. 816, 66 So.2d 860.

“The jurisprudence of this State applicable to conditional sale contracts is now well settled and can be stated thusly: In spite of the fact that conditional sales are invalid when contracted in Louisiana, the Louisiana courts, through comity, have recognized sales executed in other states, even as against a bona fide purchaser or pledgee of the vendee, where the object has been removed to Louisiana without the knowledge or consent of the vendor (citing cases). Where, however, if the removal to Louisiana is with the knowledge or consent of the vendor (or when the intent of the parties in contracting outside of Louisiana is to circumvent the law of the state), the conditional sale is not recognized. . . . ” Universal C.I.T. Credit Corporation v. Victory Motor Company, 33 So.2d 703, 704 (La.App. 1 Cir. 1948).

Likewise, chattel mortgages validly executed in other states will be recognized and enforceable in this State even in the absence of recordation unless the mortgaged property was removed to this State with the knowledge or consent of the mortgagee. Pecora v. James, supra.

“The great weight of authority is to the effect that a chattel mortgage, properly executed and recorded according to the law of the place where the mortgage is executed and the property is located, will, if valid there, be held valid even as against creditors and purchasers in good faith in another state to which the property is removed by the mortgagor, unless there is some statute in that state to the contrary, or unless the transaction contravenes the settled law or policy of the forum. . . .” General Motors Acceptance Corporation v. Nuss, 195 La. 209, 196 So. 323, 325.

In this case, there was no evidence or stipulation that CCEC lacked knowledge of, and/or did not consent to, the removal of the allegedly mortgaged equipment to this State by decedent, Pete Bradford. However, in their briefs, and at oral argument, counsel for appellee Jones and appellant CCEC stated that decedent Bradford removed the purchased property without the knowledge and/or consent of CCEC. Consequently, CCEC possessed a valid vendor’s privilege and chattel mortgage on defendant's property which was sold at that judicial sale. Therefore, CCEC should receive the proceeds of the judicial sale in preference to plaintiff.

In reaching the above conclusion, we find that it is immaterial whether Jones did or did not obtain a judgment against the Bradford heirs maintaining his writ of attachment. CCEC’s Mississippi privilege became effective in September of 1974, and the writ of attachment obtained by Jones was dated August 26, 1975. Therefore, the Mississippi privilege primes any privilege which Jones may obtain thereafter as a result of the attachment, regardless of whether or not his claim is reduced to judgment. The provisions of LSA-C.C.P. Art. 3511 granting a privilege to a creditor from the time of seizure if judgment is rendered maintaining the writ of attachment, are inapplicable in this case for the reasons above stated.

CCEC asserted a vendor’s privilege and a chattel mortgage upon certain items of the seized property. In conformity with, and pursuant to, the procedural laws of this State, it filed a petition in intervention, which pleading pre-dated the judicial sale of the seized property. Therefore, in accordance with LSA-C.C.P. Art. 1092, a judicial sale of those items assertedly mortgaged to CCEC, was held. The proceeds of that sale were held by the Sheriff subject to further orders of the court.

On March 10, 1977, the trial court annulled a judgment on confession of judgment previously obtained by plaintiff on June 16, 1976. Plaintiff has answered CCEC’s appeal asking for reversal of that portion of the trial court judgment of March 10, 1977, which annuls the judgment on confession of judgment. We agree with plaintiff, Jones; he clearly has a claim against the Bradford heirs, who were named in plaintiff’s suit, and who acknowledged plaintiff’s claim by signing a confession of judgment.

For the foregoing reasons:

(1) We reverse that portion of the trial court judgment annulling the judgment on confession of judgment, in favor of plaintiff, and it is ordered that the said judgment be declared valid and re-instated retroactive to the date of its filing;
(2) We reverse the judgment of the trial court wherein it ranked the claim of CCEC as an open account, and judgment is hereby rendered in favor of intervenor, Commercial Credit Equipment Corporation, recognizing its superior privilege on the funds in dispute held by the Sheriff of Con-cordia Parish.
(3) It is further ordered that the amount of $4,751.88 be paid to intervenor with preference and priority from the proceeds of the Sheriff’s sale, after deducting therefrom the costs attendant to the Sheriff’s sale; all other costs to be borne by plaintiff, Howard L. Jones.

REVERSED AND RENDERED.

      . Edited in part by Court of Appeal.

      . A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him in-junctive relief to prevent such sale before an adjudication of his claim of ownership.
      If the third person claims a mortgage or privilege on the entire property seized, whether superior or inferior to that of the seizing creditor, the intervention may be filed at any time prior to the distribution by the sheriff of the proceeds of the sale of the seized property, and the court shall order the sheriff to hold such proceeds subject to its further orders. When the intervener claims such a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court may order the separate sale of the property on which the intervener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege.
      An intervener claiming the proceeds of a judicial sale does not thereby admit judicially the validity, nor is he estopped from asserting the invalidity, of the claim of the seizing creditor. As amended Acts 1962, No. 92, § 1.


author: PONDER, Judge.

text:
    Henry C. MANNING v. Kenneth Addision DUNCAN et al.
    No. 11638.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Richard J. Dodson, Baton Rouge, Robert L. Morris, Houma, for plaintiff and appel-lee.
    Eddie N. Pullaro, Houma, Russell O. Ayo, Jr., Thibodaux, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment sustaining a plea of res judicata to a recon-ventional demand and incorporating provisions of a compromise agreement as the terms of the judgment.

The issue presented is whether there was a valid compromise agreement.

We affirm.

Plaintiff filed suit seeking the dissolution of a partnership and asking for sequestration of certain records and documents in defendant’s possession. At the service of the sequestration order, and after several hours of negotiating, the parties entered into the agreement in question. Some parts were not fully executed because of the need to obtain and prepare the documents required. Later, the parties met but disputes arose over the cancellation of a $5,000.00 promissory note, the inclusion of a liquidated damages provision in a non-competition agreement, the interest not provided in the agreement on some money admittedly owed and the rate of interest. The defendant then filed a reconventional demand. Plaintiff thereupon filed his exception of res judicata.

Defendant’s position on appeal is that the alleged compromise is null and void because of: (1) error as to the nature of the agreement, (2) error of fact, (3) lack of acceptance, (4) unfulfillment of suspensive conditions and (5) the failure of plaintiff to carry his burden of proof.

Defendant contends the dispute as to liquidated damages and the promissory note show failure of consent by defendant because of errors as to the nature of the contract and mistake of fact; the fact that these disputes arose is evidence that the agreement was just an agreement in principle to compromise rather than a final agreement of compromise; these disputes bar any possibility of a final compromise.

The agreement states in paragraph 9:

“9. This agreement encompasses full settlement between the parties, regardless of whatever nature.”

We regard this as an unequivocal expression of an intent to compromise all differences; it is difficult to see that one could misunderstand the nature of the agreement.

For a mistake of fact to be sufficient to vitiate any consent it must be the principal cause of the contract.

Defendant claims that he was evidently mistaken in his belief that plaintiff still held the $5,000.00 promissory note. There is evidence in the record to support the Trial Judge’s apparent finding since defendant knew of the loan from Dr. Sehroeter to the business, evidenced by a notation made on the note long before the compromise was entered. Considering, also, the language of the compromise stating that “all promissory notes held by Manning . . . are by this agreement cancelled: All notes in the possession of Manning are to be returned and cancelled with the closing of this agreement, . . .”, we cannot say the Trial Judge was manifestly erroneous in rejecting this claim.

The second claim of error by defendant relates to the absence of a liquidated damages provision in the non-competition agreement. The defendant included a liquidated damages provision in another part of the contract, but omitted it here. This omission would have to be to the principal cause of this agreement to warrant rescission of the contract. The Trial Judge evidently found that the liquidated damage clause was not, in fact, the principal cause. We agree.

The defendant claims a lack of acceptance by the plaintiff. The signatures on the agreement are full proof of all the acceptance required. Defendant argues, however, that the several points of difference between him and plaintiff are evidence that plaintiff did not accept the agreement on January 14,1976. This argument assumes that the compromise was not final on December 23, 1976, subject only to preparation and execution of certain documents as required by the agreement. There is enough evidence to support the Trial Judge’s evident finding that there was acceptance by both parties on December 23, 1976.

Defendant next argues that the contract was subject to a suspensive condition. LSA-C.C. Article 2021 states:

“Art. 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.”

The language in the contract is to the effect that this was a full settlement; that the parties “shall” do as the agreement states. That some documents were left to the approval of the attorneys could be to insure that no material changes were made in the contract. This evidence is in the record and is sufficient to support the trial court’s conclusions.

Defendant also contends that time was of the essence for the performance of these conditions, and the fact that they were not performed on January 14, 1977 is sufficient to relieve him of his obligations according to LSA-C.C. Article 2038. We disagree. The contract itself shows nothing more than an “anticipated” date of execution. There is evidence to support the trial court’s findings on this issue.

Even if we accept the testimony about the demand for interest not covered by the agreement, we still cannot say that the Trial Judge was manifestly erroneous in finding, as he evidently did, that plaintiff’s actions were efforts to amend amicably the terms of the agreement and were abandoned when rejected. This did not have the effect of nullifying the agreement, which plaintiff agreed to proceed with.

Defendant now asserts the proposition that plaintiff failed to carry his burden of proof in his plea of res judicata. As the greater portion of this opinion indicates we find there was a compromise agreement, in the form of the signed and notarized agreement of December 23, 1976.

The judgment appealed from is affirmed. Defendant is taxed with all costs of this appeal.

AFFIRMED.

      . LSA-C.C. Article 1821 and 1823 state:
      “Art. 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” “Art. 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

      . Paragraph 8 of the contract states in part: “* * * All notes in the possession of Man-' ning are to be returned and cancelled with the closing of this agreement, which is anticipated to be January 14, 1977.”


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. In the Interest of Keith James HILLMAN, Defendant-Appellant.
    No. 6237.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.

      Gravel, Roy & Burnes, by Richard V. Burns, Alexandria, for defendant-appellant.
    Ronnie Bordelon and Eddie Knoll, Dist. Atty., Marksville, John T. Bennett, Marks-ville, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and JOHNSON, JJ.
   DOMENGEAUX, Judge.

This is an appeal from juvenile proceedings in which Keith James Hillman was found to be a delinquent.

On the night of February 11,1977, young Hillman, then a sixteen year old, and Ram-mie Gauthier, an adult, entered Pepitons Mini-Mart in Dupont, Louisiana, without authorization. Gauthier had stolen some items from the store on the preceding Thursday and apparently wanted to return them. Keith was supposed to assist in this endeavor. Some merchandise was returned; however, while the two were in the store, additional items were stolen.

The following day, Saturday, Keith was given a sum of money from Gauthier. Gau-thier told Keith that this money was stolen from the store on Thursday. Keith took this money from Gauthier and purchased some equipment for his father’s truck. Additional sums of the stolen money were used by Keith and Gauthier for entertainment and gasoline expenses.

Keith was apprehended and proceedings to have him declared a delinquent child were commenced. The petition alleged that he was a delinquent because he committed the following acts:

“1. Unauthorized entry of Pepitons Mini-Mart located in Dupont, Louisiana after business hours by forcing open the back door through the use of a screwdriver in violation of R.S. 14:62.
2. Receiving stolen things in that he did use money taken from Pepitons Mini-Mart taken by Rammie Gauthier to purchase two (2) rims for his pickup truck valued at Ninety-Six Dollars ($96.00), a tape player also installed in the pickup truck, valued at Forty Dollars ($40.00), Twenty Dollars ($20.00) which was spent at the Sportman in Mansura, Louisiana, and Ten Dollars ($10.00) for gas for the truck making a total of One Hundred Sixty-Six Dollars ($166.00) in violation of R.S. 14:69.”

At the hearing held on April 7, 1977, Keith was represented by counsel of choice. The juvenile’s mother was also present. The court found that Keith had committed both acts and declared him a delinquent child. He was committed to the care, custody, and control of the Department of Corrections for an indefinite period. The sentence was suspended and Keith was placed on probation until his 18th birthday, with the special condition of probation that he serve thirty days in the Avoyelles Parish jail. An appeal on behalf of the child was perfected.

Four contentions are raised on appeal:

1. The petition did not adequately allege Keith committed the act of burglary;

2. The evidence was insufficient to sustain a finding of delinquency, particularly with reference to burglary.

3. The introduction at the hearing of a statement made by the juvenile to a community service technician prior to the establishment of the corpus delicti violated evi-dentiary rules;

4. The trial court was without authority to require Keith to serve thirty days in the Avoyelles Parish jail, an adult penal institution.

We reject appellant’s first contention concerning the sufficiency of the petition. Appellant argues that since the crime of burglary consists of both an unauthorized entry and an intent to commit felony or theft in the premises entered, the petition must allege intent in addition to unauthorized entry.

The purpose of the petition is to give the juvenile notice and an opportunity to defend. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In Re State in Interest of Harrell, 254 La. 963, 229 So.2d 63 (1969); In Re State in Interest of Sylvester, 267 So.2d 585 (La.App. 3rd Cir. 1972). The petition in this case clearly stated the date of the alleged burglary, the premises allegedly burglarized, and the criminal statute involved. It did not give inadequate notice or hamper the juvenile in his defense.

We also note that the petition was sufficient under La.R.S. 13:1574. This statute states in pertinent part:

“C. The petition shall set forth with specificity:
1. the facts which bring the child within the provisions of this chapter, together with a statement, when delinquency is alleged, that the child is in need of supervision, care, or rehabilitation. If a violation of law is the basis for filing the petition, the petition shall cite the statute or municipal ordinance which the child is alleged to have violated . . .

Furthermore the objection to the petition is being made for the first time on appeal. In the criminal law sphere the Louisiana Supreme Court has stated that:

. . . [WJhere ... an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.”

State v. James, 305 So.2d 514, 516-517 (La.1974). See State v. Mason, 305 So.2d 523 (La.1974); State v. Santos, 309 So.2d 129 (La.1975); State v. Marmillion, 339 So.2d 788 (La.1976).

The juvenile in this case was fully apprised of all his constitutional rights and was represented by counsel at all times during the hearing. Nevertheless no objection was made to the petition until appeal to this court. Absent a showing of unfairness, lack of notice, or surprise, we feel that the juvenile in this case was not unduly prejudiced by the omission of an allegation of intent in the petition.

Appellant’s next contention is that the evidence was insufficient to sustain a finding of delinquency. Specifically he argues that the intent necessary to constitute the act of burglary under La.R.S. 14:62 was not proven beyond a reasonable doubt.

We have reviewed the record in this case and find that there was sufficient evidence to sustain a determination that Keith committed burglary. As the Supreme Court observed in State v. Jones, 315 So.2d 650 (La.1975), specific intent is something which cannot be observed visually. It must be inferred from all the circumstances established at trial. Looking to the totality of circumstances established in this case we feel that the trial judge was not in error in finding that Keith committed the act of burglary.

We note that no serious issue is raised with reference to the commission of the act of receiving stolen things. There was overwhelming proof to sustain the finding that Keith committed this crime and the point was not argued in appellant’s brief. A delinquent child is simply one who has committed an act designated as a crime and who is in need of care or rehabilitation. La.R.S. 13:1569(13) and (14). Keith, therefore, could have been declared a delinquent child on this basis alone without the allegation or proof of burglary.

Appellant’s next contention is that it was error to allow David Owens, a community service technician, to testify with reference to an admission made by Keith during the pre-hearing investigation before establishing the corpus delicti at trial. The argument is unavailing. Assuming arguen-do that the corpus delicti must be established before introduction of an extra-judicial admission or confession, the error in this case would be harmless because Keith’s voluntary testimony on his own behalf at trial was consistent with that of Owens. See State in Interest of Brecheen, 264 So.2d 779 (La.App. 1st Cir. 1972), writ refused 262 La. 1175, 266 So.2d 450 (1972).

Appellant’s final contention on appeal is that the trial judge did not have authority to require Keith to serve thirty days in the Avoyelles Parish jail as a special condition of probation. The State argues in its brief that such authority can be found in La.R.S. 13:1577. Sub-Section C of that statute provides:

“C. Except as hereinafter provided, no child shall be confined in any police station, prison or jail, or be transported or detained in association with criminal, vicious or dissolute persons. A child fifteen years of age or older may be placed in a jail or other place of detention for adults, but in a room or ward entirely separate from adults.”

We reject the State’s argument. It is absolutely clear that this statute deals with detention pending a hearing. It does not govern the alternatives available after an adjudication of delinquency. Post-hearing alternatives are governed by La.R.S. 13:1580. Although several options are available to a juvenile judge, this statute does not authorize incarcerating a juvenile in an adult penal institution. We have found no authority, nor has any been brought to our attention, which would allow a juvenile to be placed in an adult penal institution after an adjudication of delinquency. The trial judge was without authority to place Keith in the Avoyelles Parish jail. We therefore find that the sentence or disposition, insofar as it requires the juvenile to serve thirty days in the parish jail, is unauthorized.

For the above reasons we affirm the judgment of the trial court which found that the juvenile was delinquent. We remand the case to the trial court for a new disposition or sentencing of the juvenile in accordance with law, and not inconsistent with the views expressed in this opinion.

AFFIRMED AND REMANDED.

      . We understand from the record that Gauthier was apprehended and convicted in criminal court.

      . The father could not attend and his presence at the proceedings was waived.

      . Compare, In the Interest of Garcia, 325 So.2d 364 (La.App. 4th Cir. 1976) in which the Fourth Circuit found a petition to be fatally deficient under the statute. That case apparently involved a petition which did not set forth the date of birth, sex, race, and criminal statute allegedly violated, and did not allege that the child was in need of supervision, care, or rehabilitation. In the instant case, the date of birth, sex, race, and the criminal statute allegedly violated, as well as a prayer for the court to take such action necessary for the welfare of the child was contained in the petition.

      . Appellant relies upon the case of State v. Brown, 236 La. 562, 108 So.2d 233 (1959), for the proposition that the corpus delicti must be established before the introduction of an extrajudicial admission or confession. We are persuaded by the State’s contention that the language relied upon is dictum and not controlling. Moreover, the Court in that case simply stated that this would be the better rule of law. We also note that a later case, State v. Odom, stands for the general proposition that “it is not essential for the State to prove the corpus delicti as a condition precedent to the introduction of other evidence to connect the accused with the crime charged, the time and order of receiving testimony being controlled to a large extent by the discretion of the trial judge.” 247 La. 62, 169 So.2d 909, 914 (1964). Furthermore, we note that in the instant case, no objection was made to Owens’ testimony during the hearing, even though the juvenile was represented by counsel of his own choice. The corpus delicti was eventually established and it seems to us that any objection should have been made at trial so that any possible error in the order of presentation could have been avoided.