text:
    Terrance Keith ROYLE, Plaintiff-Appellee, v. CASUALTY RECIPROCAL EXCHANGE, et al. State of Louisiana, Department of Transportation & Development, Defendant-Appellant.
    No. 82-130.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

For the reasons contained in Myrtle Faye Royle v. Casualty Reciprocal Exchange, 419 So.2d 547, docket number 82-129, in which we render a separate decision this date, the judgments of the trial court are reversed and the case is remanded for further proceedings consistent with our views expressed in the opinion in the Myrtle Faye Royle case cited above.

The costs of this appeal are assessed in equal portions to movers Myrtle Faye Royle, Terrance Keith Royle and Toyota Motor Sales Limited.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Jean C. RYDER (Myrtle Faye Royle, Terrance Keith Royle and Toyota Motor Sales Company, Ltd.), Plaintiffs-Appellees, v. TOYOTA MOTOR SALES COMPANY, LIMITED, et al. State of Louisiana, Department of Transportation, Defendant-Appellant.
    No. 82-131.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

For the reasons contained in Myrtle Faye Royle v. Casualty Reciprocal Exchange, 419 So.2d 547, docket number 82-129, in which we render a separate decision this date, the judgments of the trial court are reversed and the case is remanded for further proceedings consistent with our views expressed in the opinion in the Myrtle Faye Royle case cited above.

The costs of this appeal are assessed in equal portions to movers Myrtle Faye Royle, Terrance Keith Royle and Toyota Motor Sales Limited.

REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Gwladys Howard FONTAINE v. McDONALD SYSTEMS, INC.
    No. 13062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.
    Roger J. Larue, Jr., Metairie, for interve-nor-appellant.

      Claude D. Vasser, Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   SCHOTT, Judge.

Gwladys Howard Fontaine, the mother of Warren Grilletta, filed this suit on January 9, 1979, for worker’s compensation benefits against McDonald Systems, Inc. in connection with the shooting of Grilletta while he was in the course and scope of his employment on January 10,1978, and his resulting death on February 22. On February 9, 1980, the parties filed a joint petition to compromise the claim and a judgment of compromise was rendered on February 11. On March 26, 1981, (over three years after Grilletta’s death, see LSA-C.C. Art. 3538) the State of Louisiana, through the Department of Health and Human Resources (Department) filed a “petition to annul judgment and for medical expenses” in which it alleged that immediately following his injury Grilletta was taken to Charity Hospital where he was treated and remained until his death on February 22. Defendant, McDonald Systems, Inc. and its insurer, filed an exception of prescription which was sustained by the trial court. The Department has appealed from that judgment dismissing its case. The issue is whether the Department’s claim was prescribed considering the particular facts and circumstances of this case.

LSA-R.S. 46:11.1 provides as follows:

“A. The Department of Health and Human Resources, on behalf of any of the general charity hospitals under the administration of said department, or the United States, on behalf of any veterans administration hospital in the state, may intervene at any time prior to judgment in any personal injury suit or in any suit involving workmen’s compensation claims in which any of these hospitals has an interest, for the purpose of recovering the cost of drugs, X-rays, laboratory fees, surgical, medical, and other expenses of hospitalization and services rendered.
B. It is the intention of this Section that prescription shall not run against the intervention by the department or a veterans administration hospital in the state in any such suit in which any of them may have an interest until judgment has been rendered in the cause in the court of original jurisdiction or the prescriptive period provided by law for the cause of action has run, whichever is the later.”

It seems clear that the Department’s claim was prescribed under § B since it sought to intervene in the proceedings more than a year after the judgment of compromise was signed. This is the later date provided under the statute since the original prescriptive period was one year from the date of Grilletta’s death. R.S. 23:1209.

In this court the Department challenges the judgment on two grounds: “(1) The debt due the State was acknowledged by defendant by its handwritten note following the Petition for Compromise; (2) Prescription does not run against one who has no knowledge of the facts giving rise to the claim, especially when another party asserting prescription has not followed the statutory requirements for service.”

In support of its first argument the Department refers us to a handwritten note, written on the last page of the joint petition to compromise the claim, initialed by counsel for both parties, and reading: “All medicals paid by McDonald Systems.” The department contends that this was sufficient to acknowledge the debt so as to interrupt prescription in accordance with C.C. Art. 3520 which provides “prescription ceases likewise to run, whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.” The Department correctly argues that an acknowledgment under Art. 3520 need not be in any particular form but may be made verbally, in writing, by partial payment, by payment of interest, or by pledge, or in other ways; and that it may be implicit or it may be inferred from the facts and circumstances. Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378 (La. 1980). There is no explanation in the record, nor was counsel for defendants able to offer any, for the reason that the handwritten note was placed on the petition for a joint compromise of the claim. We can only speculate that the trial judge asked counsel for the parties if the bills were paid and asked for an indication on the petition to that effect.

R.S. 46:13 requires that the superintendent or director of the charity hospital providing treatment give notice to the employer or the insurance company that the patient is being treated and that charges will be made for the treatment. We can infer from the record that the Department was on notice that Grilletta might have a workmen’s compensation claim. The Department’s petition alleges that he was taken to Charity Hospital when he was shot and was treated there for over six weeks until his death. We note that R.S. 46:13 goes on to provide that the failure of the hospital to give the notice required by the statute “shall not relieve the employer or the insurance company from liability when notice has been otherwise received” but we cannot infer that defendants had such notice. Perhaps they had notice that Grilletta was being treated at Charity Hospital, but nothing supports the inference that they had notice that the hospital would make charges for this treatment. Defendants could not acknowledge a claim of which they had no knowledge. Accordingly, we do not find that C.C. Art. 3520 has any application to the case.

The Department’s second argument is based primarily on the failure of compliance with R.S. 46:9 which provides as follows:

“A. Any person who has received in any of the charity hospitals of the state or in a veterans administration hospital in the state treatment for injuries which might entitle him to damages or compensation, and who files suit for the recovery of the damages or compensation, shall cause a copy of the petition to be served on the hospital from which he received treatment, or on the attorney designated to represent the hospital, at least ten days before the trial of the suit.
B. No court of this state shall proceed with the trial of any suit involving any claim referred to in this Section, unless a copy of the petition has been served as required, or such service has been waived as provided in Subsection C.”

The Department argues that the failure of the plaintiff to comply with this statute provided the grounds for the application of the doctrine of contra non valen-tem agere nulla currit praescriptio discussed at length in Corsey v. State Department of Corrections, 375 So.2d 1319 (La.1979). One of the categories of situations in which the doctrine was said to apply was where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action. Thus, says the Department, the failure of plaintiff to comply with the provisions of R.S. 46:9 gives rise to the application of the doctrine. This court in Foxworth v. State Farm Automobile Ins. Co., 308 So.2d 348 (La.App. 4th Cir. 1975) and Times v. Wickman, 261 So.2d 113 (La.App. 4th Cir. 1972) had occasion to apply the statute. There plaintiffs failed to comply with it, and both cases were remanded to the district court to require that Charity Hospital be served with copies of the petitions. However, the statute has application to the person who received the treatment for the injuries and does not impose this obligation on survivors as in the instant case.

Therefore, we conclude that the trial judge correctly sustained the exception of prescription and the judgment is affirmed.

AFFIRMED.


author: KLEES, Judge.

text:
    Vernell MERRICK v. Patricia WHEELER, et al. Gertrude EDWARDS v. Esther FALLEN and New Orleans Public Service, Inc. Jean MATTHEWS v. Patricia WHEELER, New Orleans Public Service, Inc., and Esther Fallen.
    Nos. 12944, 13172, 13173.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.
    Writ Denied Nov. 12, 1982.
    Thomas E. Dunn, Ungar, Jacobs, Manuel & Kain, New Orleans, for plaintiff-appellee, Vernell Merrick.
    Harold J. Wheeler, Di Rosa & Wheeler, New Orleans, for plaintiff-appellee, Gertrude Edwards.
    Ernest Lee Caulfield, New Orleans, for plaintiff-appellee, Jean Matthews.
    James Maher, III, New Orleans, for defendant-appellant, New Orleans Public Service, Inc.
    Before SCHOTT, KLEES, and LOBRA-NO, JJ.
   KLEES, Judge.

In each of these consolidated cases, Defendant, New Orleans Public Service, Inc., appeals from judgments for damages sustained by Plaintiffs, Vernell Merrick, Gertrude Edwards and Jean Matthews in an accident which occurred while they were passengers on a bus owned and operated by defendant.

The issue presented on appeal is whether defendant driver’s action in parking her bus with the rear end protruding into the street constituted a proximate cause of the accident. The trial court concluded that it did and we affirm.

On August 2, 1977 at approximately 7 p. m. during a light rain, the plaintiffs were all fare-paying passengers aboard a New Orleans Public Service, Inc. bus. The bus was struck from the rear by an automobile as it was at a stop near the corner of Canal Street and South Galvez. The bus operator did not pull the bus all the way into the designated bus stop space, but rather brought the bus in. at an angle, so that the rear of the bus protruded into the adjacent travel lane. Defendant-appellant’s claim that there was no negligence on the part of their bus operator or alternatively that any such negligence was not the proximate cause of the accident.

According to the jurisprudence of the State of Louisiana, public carriers of passengers owe the highest degree of care to their passengers. Walker v. New Orleans Public Service, Inc., 245 So.2d 763 (La.App. 4th Cir. 1971), and although the public carrier is not the insurer of its passengers safety, it is required to exercise the highest degree of vigilance, care and precaution for the safety of its passengers, and is liable for the slightest negligence which causes or contributes to their injury, Vaughn v. New Orleans Public Service, Inc., 314 So.2d 545 (La.App. 4th Cir. 1975).

In addition, it was incumbent upon appellant at trial to prove that its driver was free from negligence. Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979). Appellants agree that our jurisprudence holds that a motorist who stops or parks his vehicle so that part of the vehicle or all of the vehicle is obstructing a travel lane may be liable for his actions depending upon the conditions that existed at the time of the occurrence.

Nonetheless, they contend that even if the vehicle were improperly parked, that there must be a causal connection between the improper act and the resulting accident. In this case the evidence reveals that the bus was stopped at such an angle that the rear of the bus was protruding into the middle of South Galvez Street.

By parking at such an angle, the appellant’s bus driver has breached the duty not to obstruct the roadway or safe flow of traffic. However, this breach, in and of itself, does not mean that the appellant is automatically liable for the injuries sustained by the injured passengers. The duty, and subsequent breach of that duty, must encompass the risk of these particular plaintiffs’ being injured by way of such an accident before liability can be imposed upon the defendant-appellant. The language of Dixie Drive It Yourself v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), when considered in light of the facts of the present case, seems to indicate that the duty imposed upon the appellant did encompass the risk that an inattentive or confused motorist might strike the bus while the rear of the bus was protruding into the middle lane of traffic.

Appellant cites Laird v. Travelers, 263 La. 199, 267 So.2d 714 (1972), and Smith v. Frederick, 221 So.2d 306 (La.App. 4th Cir. 1969) contending that in these cases the courts found no causal connection between improperly parked vehicles and the accident. In each of those cases, the courts went to great lengths to recite facts which indicated the fault of the following motorist. In this case there is no such evidence presented.

Accordingly, the judgments appealed from are affirmed. All costs to be borne by appellant.

AFFIRMED.


author: LOBRANO, Judge.

text:
    Rosemary THOMAS v. BARKER’S DEPARTMENT STORE (Franklin Stores) & Home Insurance Co.
    Nos. 13234, 13284.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.

      Lawrence E. Larmann, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for defendants/appellees.
    Norman Mopsik, P.C., New Orleans, for plaintiff/appellant.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   LOBRANO, Judge.

This is an appeal from two judgments rendered by the lower Court, both in favor of the defendants-appellees, Barker’s Department Store (Franklin Stores) and The Home Insurance Company dismissing plaintiff-appellant’s claims for workmen’s compensation benefits. From these judgments plaintiff-appellant has appealed.

STATEMENT OF FACTS

Plaintiff-appellant alleges that on July 3, 1978 while in the course and scope of her employment with Barker’s Department Store No. 418 on Judge Perez Drive in Chalmette, Louisiana, she sustained injuries when two boxes of glass fell striking her on the shoulder and straining her back, neck and shoulder. She was seen by Dr. W. Hammond Newman four days after the accident and was treated off and on by Dr. Newman until March 31, 1980. Dr. Newman’s diagnosis was a tear of the ligaments of the lumbar vertebrae. Ms. Thomas was absent from work three days immediately after the accident and approximately 30 total days. Ms. Thomas did not make a claim for workmen’s compensation benefits against Barker’s Department Store or their insurer, The Home Insurance Company, nor did Barker’s Department Store or the Home Insurance Company make any workmen’s compensation payments to Ms. Thomas. Ms. Thomas first made a claim for compensation benefits when she filed Suit No. 36-768 in the 34th Judicial District Court for the Parish of St. Bernard on May 28, 1980. Exceptions of prescription were filed by defendants and were sustained by the trial court. From that judgment plaintiff-appellant has appealed.

Plaintiff-appellant also alleges that on March 3, 1979 while working within the course and scope of her employment with Barker’s Department Store she was injured when several boxes of push brooms fell on her. Appellant did not return to work after that accident. She was treated three days thereafter again by Dr. Newman and continued to see him on an on-and-off basis through March 31, 1980. As with her prior accident appellant did not make a claim for workmen’s compensation benefits nor were any benefits paid. Appellant then filed suit No. 36-766 on May 28, 1980 in the 34th Judicial District Court, which suit was answered by an exception of prescription. That exception was also upheld. Both of these matters have been consolidated on appeal.

The workmen’s compensation statute generally provides that a claim for benefits shall be barred unless suit is filed within one year after the accident. A claim specifically excluded from the one year limitation is one “where the injury does not result at the time of, or develop immediately after the accident.” In that instance, “the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.” La. R.S. 23:1209, Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956) and Bolden v. Georgia Cas. & Sur. Co., 363 So.2d 419 (La.1978) provide the jurisprudential interpretation of the “development of injury rule.”

As stated in Wallace, supra, 86 So.2d at p. 526:

“Development, as applied to a compensa-ble injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer.”
As explained in Bolden, supra, at p. 422: “The underlying rationale of the Wallace rule is that an employee who becomes disabled after the prescriptive year (but within two years after the accident) will not be penalized by the loss of his compensation rights, unless he fails to bring suit to enforce them within one year after it is manifest, rather than conjectural, that he has a compensable claim.”

In the case at bar, the plaintiff visited her physician within a few days of both accidents. According to plaintiff’s answer to interrogatories she missed a total of 30 days after the accident of July 3, 1978. When plaintiff visited Dr. Newman on March 6, 1979 approximately 3 days after her second accident she gave him a history of being injured in the earlier accident. Plaintiff by her own testimony at the trial of the exception indicates that her injuries manifested themselves immediately after both accidents.

“Q. Why if you know of your own mind and you could tell the court did you come to an attorney after a year rather than before the year was up? Do you know Rosemary?
A. Because I needed an attorney because Barkers my employer were not interested in what nature of my problem being hurt on that job. They do nothing for me. I told the manager and whatever they were over me, the department head. I went to the doctor right after the accident. I was treated at St. Claude Hospital. Nobody took interest of what I was saying. Took my name and accident report. I never knew how I was going to be affected and what way I was going to be affected. I was considerably ill and I was still working at the same time. Nobody was interested in what was going on with me. I needed to come to an attorney. I didn’t have money to pay all of those doctor’s bills anyway. I had an insurance with them. I was employed there. Everytime I tell something they said I always had to go to the doctor.”

The evidence establishes that Ms. Thomas suffered two traumatic events, suffered immediate pain, displayed objective signs of injury, and sought and obtained medical evaluation.

Defendant correctly asserts that this is not a situation where an employee becomes disabled as a result of successive traumatic incidents on the job without being able to attribute his disability to a single event; or where a relatively minor trauma did not cause immediate pain; or, where an employee is injured and sustains pain but continues to work believing he can perform his duties, only to subsequently find the injury has developed to a state of disability. Thus the rule allowing prescription to take effect at the expiration of “one year from the time the injury develops” does not apply.

Counsel for appellant advances the novel legal argument that plaintiff’s physical injuries created within her an emotional state such that she was prevented from realizing the legal ramifications of her injury until after one year from the date of the accident. The failure of a litigant to recognize the legal ramifications of an injury is not a factor which interrupts the running of prescription. To so hold would destroy the efficacy of prescription as a bar to dilatory claims.

Additionally it should be noted that Ms. Thomas had been receiving treatment for depression and anxiety on and off since 1948. The medical report which was allowed into evidence by Judge Gauthier indicates that she was first seen in the office of Mental Health and Substance Abuse by Dr. Walls on August 31, 1979 and was seen every other week thereafter. In addition, Dr. Walls’ reports indicated that Ms. Thomas became increasingly distraught about her situation in her home life. There was no history given to Dr. Walls by Ms. Thomas of either of the accidents nor is there any reference in his reports that either accident played any part in her depression.

For the above and foregoing reasons the decision of the trial court is affirmed. Plaintiff to bear all costs of this appeal.

AFFIRMED.


text:
    SUCCESSION OF Lawrence ORLANDO.
    No. 13037.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.

      Donald M. Pierce, Gertler & Gertler, New Orleans, for plaintiffs/appellants.
    Donald A. Meyer, Shushan, Meyer, Jackson, McPherson & Herzog, Wanda Kimble, Herman & Herman, New Orleans, for the Succession of Lawrence Orlando defendants/appellees.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   LOBRANO, Judge.

Lawrence Orlando, the testator in this case, died on May 14, 1979. On May 16, 1979, a purported testament of the decedent was admitted to probate and recorded in ex parte proceedings. The testament was dated April 13, 1979.

On June 7, 1979, August J. Franzella, Antoinette Orlando Molay, Marie Orlando Timphony and Antoinette Orlando Muscle filed a suit to annul, the probated testament. The petitioners alleged that the formalities for the execution of a nuncupative testament by public act were not complied with. They further alleged that at the time of the execution of said testament the testator was physically and mentally disabled and that his disability was of such a nature that it was impossible for him to understand or properly comprehend the execution of a last will. Made defendants in the suit were Lorenzo Loria, Vita Loria and Josephine Orlando Loria, all legatees of the decedent’s last will and testament.

After trial on the merits, the Court rendered judgment in favor of the Succession of Lawrence Orlando and its duly appointed representative, Lorenzo Loria, and against the plaintiffs dismissing their suit to annul the testament of Lawrence Orlando. From said judgment, plaintiffs have perfected this appeal.

Articles 1578 and 1579 of the Louisiana Civil Code establish the formal requirements for the writing of a nuncupative will by public act. These formalities are as follows:

1) The will must be dictated by the testator to the notary in the presence of three witnesses residing in the place where the will is executed or of five witnesses not residing in the place;
2) the will must be written by the notary as it is dictated;
3) the will must then be read to the testator in the presence of the witnesses;
4) there must be no interruptions or turning aside to other acts;
5) the testament must be signed by the testator or, if he cannot sign or does not know how to write, express mention of this fact must be made in the will;
6) the testament must be signed by the witnesses; or at least by one of them for all, if the others cannot write;
7) express mention of the accomplishment of these forms must be made in the testament.
La.C.C. Articles 1578 and 1579

Appellants do not dispute that Mr. Herman, the notary, assiduously complied with all the formalities listed above. Their attack is based on testimony which indicates that Mrs. Búcaro, a witness, translated a word or phrase from English into Italian for the decedent’s benefit. Appellants contend that this translation in a foreign language vitiates the testament. We disagree.

The applicable law on this issue is found in Succession of Centanni, 142 So.2d 636, (4th Cir. 1962) wherein we stated:

“The inability of a necessary witness to a nuncupative will by public act to understand either the language in which the will is written or the language in which the same is dictated renders the will null; and such a will is also null where the testator does not understand the language in which the notary wrote and read the will. Debaillon v. Fuselier, 159 La. 1044, 106 So. 559; Lataprie v. Baudot, 152 La. 177, 92 So. 776; Succession of D’Auterive, 39 La.Ann. 1092, 3 So. 341; Gonzales v. Gonzales, 13 La. 104.
The rationale of these cases is especially well expressed in Dabaillon v. Fuselier, supra, at page 1048 of the Louisiana eitation and at page 561 of the Southern citation as follows:
‘The decisions maintaining that a witness to a nuncupative will by public act is incompetent if he does not understand the language in which the will is dictated, or if he does not understand the language in which the will is written, are founded, not upon any express requirement of the Code with regard to the competency of witnesses, but upon the obvious and substantial reason that a witness to a nuncu-pative will must be able to compare what he hears the notary read to the testator with what he has heard the testator dictate to the notary. For the same reason — if not for better reason — the testator must be able to compare what the notary reads to him with what he has dictated to the notary. There is no opportunity for such comparison when the notary, having written the will in a language other than that in which it was dictated, translates it back into the language in which it was dictated, and thereby merely repeats to the testator what he dictated.’ ” at p. 638

In the instant case the testimony clearly reflects that the will was dictated by Mr. Orlando in English and taken down by Mr. Herman, the Notary, in English. The testator, notary and the witnesses all spoke and understood English. It appears from the record that Mr. Orlando requested that Mrs. Búcaro, a witness, translate several words and phrases from English into Italian for the purpose of insuring that he, Mr. Orlando, was expressing correctly what he wanted to say and that what Mr. Herman was writing conformed to his testamentary intentions.

After the translation took place, the notary read that portion of the will back to the Testator in English and Lawrence Orlando stated that he understood the English, and that what he heard the notary read was in fact his true wish and direction.

Code of Civil Procedure Article 2933 provides that the plaintiff has the burden of proving the invalidity of the testament. The proof of noncompliance with the formalities required in executing a nuncupa-tive will by public act must be peculiarly strong to overcome the presumption in favor of its validity. Succession of Smith v. Domangue, 297 So.2d 717 (1st Cir. 1974).

It is well established that the trial judge is vested with great discretion in assessing whether witnesses to a testament or the testator himself possess a sufficient degree of proficiency in the language utilized. We find no manifest error in the trial judge’s conclusion as to the proficiency of the testator and witnesses in the English language. Furthermore we hold that the mere discussion of a phrase or thought of the testator in a foreign tongue then translated into English by a disinterested witness, and read back to him in English does not nullify the will.

Appellants second argument is that at the time the will was executed the testator was physically and mentally disabled to the point that he lacked the testamentary capacity to execute a valid will. Our jurisprudence defines testamentary capacity as the possession of one’s mental faculties to the extent that the testator has full knowledge and understanding of the import and effect of his action. The testator must be legally sane or experience a lucid interval throughout the period required to confect the testament. Succession of Herson, 127 So.2d 61 (La.App. 1st Cir. 1961).

Testamentary capacity is always presumed and the burden is upon the party attacking the will to prove that at the time the will was drawn, the testator was not sufficiently sound of mind to fully understand the nature of the testamentary act and appreciate its effect. Artigue v. Artigue, 210 La. 208, 26 So.2d 699 (1946) The test in determining testamentary capacity is whether such capacity existed at the moment the will was made. Cornmeir v. Myers, 223 La. 259, 65 So.2d 345 (1953) “The degree of proof required to overcome the presumption of testamentary capacity is similar to that required to rebut the presumption of innocence which the law creates in favor of the accused in criminal cases.” Succession of Collins v. Hebert, 377 So.2d 516 (La.App. 3rd Cir. 1980) at 519.

Dr. Hanckes A. Klein, a specialist in internal medicine who was decedent’s treating physician, testified in his deposition that Mr. Orlando was suffering from arteriosclerosis and was on occasion somewhat nervous and depressed. All those who were present at the taking of the will testified that Lawrence Orlando was both physically and mentally aware of what was happening that day. None of appellants’ witnesses saw the testator on April 13, and were thus unable to testify as to his condition on that date.

After reviewing all of the evidence, the trial court concluded that plaintiff had not carried out the burden of proving that Orlando was not of sound mind. Whether or not a testator had the requisite capacity is a question of fact, and the findings of the trial judge will not be disturbed on appeal unless they are manifestly erroneous. Succession of Zinsel, 360 So.2d 587 (La.App. 4th Cir. 1978); Succession of Staggers, 254 So.2d 289 (La.App. 4th Cir. 1971); Succession of Brown, 251 So.2d 465 (La.App. 1st Cir. 1971). We find no error in the trial court’s conclusion.

Appellees, in their first Amended and Supplemental brief ask that we reverse the District Court’s assessment of costs to the succession. Appellees did not assert their objections to the assessment of costs by way of answering the appeal thus they are foreclosed from raising this issue by supplemental brief. La.C.C.P. Art. 2133. A judgment cannot be changed in favor of an appellee who has neither appealed nor answered his adversary’s appeal. Arrow Const. Co. v. American Emp. Ins. Co., 273 So.2d 582. (La.App. 1st Cir. 1973).

For the above and foregoing reasons, the judgment appealed from is hereby affirmed. All costs of the appeal are assessed against appellant.

AFFIRMED.

      . The testament itself states that Mr. Orlando spoke and understood English, although unable to read or write same.


author: BROOM, Justice,

text:
    Willie Albert SMITH v. STATE of Mississippi.
    No. 53564.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    As Modified on Denial of Rehearing Sept. 22, 1982.

      Minor F. Buchanan, Jackson, John E. Gregg, Raymond, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   BROOM, Justice,

for the Court:

Death penalty sentence resulted from the capital murder trial of Willie Albert Smith (defendant) in the Circuit Court of the First Judicial District of Hinds County, the Honorable William F. Coleman, Circuit Judge, presiding. The indictment charged that the defendant murdered Shirley Roberts while “engaged in the commission of the crime of robbery of said Shirley Roberts ...” On his appeal, the defendant (1) challenges several evidentiary rulings made by the trial court, (2) contends that the verdict and sentence were unsupported by the “weight of the evidence”, and (3) asserts that Mississippi Code Annotated §§ 97-3-21 and 99-19-101 (Supp.1981), are unconstitutional as violative of the Eighth and Fourteenth Amendments to the United States Constitution. We affirm.

Shirley Roberts, the murder victim, was the manager of Tote-Sum Store No. 6, situated on Robinson Street in the City of Jackson. She normally arrived to open the store about 5:15 A.M., but unfortunately on the morning of March 15, 1981, upon her arrival she was assaulted and abducted and subsequently murdered. Kenneth Thomas testified that, shortly after 5:00 on that morning, he was driving by the Tote-Sum in a car with James Wells. As they passed the Tote-Sum store, they saw a black man in the parking lot (later identified as the defendant) grab a white woman who struggled with him. Thomas’s driving companion, James Wells, stated that he saw the defendant grab the woman and choke her, but, not wanting to become “involved”, they drove on. A few minutes later they returned, at which time Jackson Police Department officer G. E. Otis was present. They related to Otis what they had seen a few minutes earlier. Officer Otis conducted a preliminary search and discovered in the parking area by the Tote-Sum store the following items: car keys, brass knucks, a twenty-dollar bill, a woman’s (right) tennis shoe, and a pair of eyeglasses. Witness Thomas indicated in his testimony that Mrs. Roberts was about to unlock the store when the defendant grabbed her. Thomas last saw the woman at approximately the spot where the glasses, brass knucks and tennis shoe were found. At trial, Thomas testified that the next day he identified the defendant in a lineup as the person with whom the woman struggled outside the store. Thomas’s testimony was substantially corroborated by that of his friend, James Wells.

Officer Otis testified that he was present at the store when Thomas and Wells arrived and related to him the incident they had seen transpire between the defendant and the woman (Mrs. Roberts) in the parking lot. He conducted a preliminary search at the exterior of the store and discovered the twenty-dollar bill, car keys, brass knucks, a woman’s-type tennis shoe and eyeglasses. The officer determined that a car in the parking lot was that of Mrs. Shirley Roberts, but she was not on the premises. Then Officer Otis noticed a red Pinto traveling on Robinson Road which fit the description of the suspect’s car given him by Thomas and Wells. A few minutes later he stopped the vehicle which was being driven by defendant Willie Albert Smith. During the process of stopping the defendant, Officer Otis saw the defendant put something under the right side of the front seat, which, upon investigation, was discovered to be a shoe: the mate to the one found at the parking lot. Otis observed mud and blood on the defendant’s hands and arrested the defendant. The defendant told Otis that he had borrowed the red Pinto from one Edward Charles McDonald and directed the officer to McDonald’s address. McDonald, in turn, directed them to an apartment off Henley Street where the defendant lived. During their investigation, the officers followed a “drag trail” from the house to a wooded area where they came to a ditch of water covered with leaves, from which a human foot protruded. The body in the water was later identified as that of the victim, Mrs. Shirley Roberts.

Cause of death, according to the testimony of Dr. Rodrigo Galvez, was manual strangulation or choking. He found scratches and abrasions about her knees, ankles, and on her right hip. There was a marking around her neck. Testifying in his own defense, the defendant denied that he had ever seen Mrs. Roberts or that he had anything to do with her death or any robbery. Additional facts will be stated as needed in this opinion.

The first argument made by the defendant is that the trial court “committed reversible error by admitting (sic) the prosecution to introduce the criminal record of another as being that of the defendant’s . ... ” On direct examination, the defendant gave testimony pertaining to his prior criminal record, and during his cross-examination he was queried about prior convictions of disorderly conduct and resisting arrest, which he denied. In rebuttal, the state called the keeper of the Jackson Municipal Court records, Mr. Gladney, who testified that a Willie Albert Smith had been convicted for disorderly conduct and resisting arrest. On cross-examination, Gladney stated that according to his records Willie Albert Smith would be twenty years old at the time of trial of this cause, and had lived at 118 Bonair in Jackson, and had a social security number of [ XXX-XX-XXXX ]. The defendant testified that he was twenty-three years old at the trial date, had never lived at the mentioned address, and had a different social security number from the one produced by Gladney. He contends that the conviction record of disorderly conduct and resisting arrest was in fact the record of another person and that its use constituted reversible error.

We note that first to bring up the subject of the defendant’s past criminal record was his own counsel, who asked the defendant about two prior convictions which he acknowledged. Then counsel made no objection to Officer Gladney’s testimony, and at no time during the trial was there any attempt on the part of the defense to have the testimony excluded. Our general rule is that reversible error cannot be predicated upon the trial court’s failure to exclude evidence as to which there has been no timely objection or motion to exclude. Black v. State, 308 So.2d 79 (Miss.1975). Nevertheless, we have here considered the argument. We point out that when one gives data to arresting officers or to a court clerk, the content may be true and accurate, or may be false and misleading. Of course, the jurors were allowed to hear all of the evidence concerning the names and identification and other data in question which raised a question of credibility for them to consider. In the jury’s evaluation of the defendant’s credibility, the decision as to the weight to be accorded this evidence was within the sole province of the jury’s role as fact trier. Defense counsel’s election to bring up the subject of the past criminal record cannot be charged to the prosecution or the trial court. Defense counsel’s further election not to object to the portion of the arrest record brought out by Officer Gladney may have been a trial strategy decision to gain the jury’s sympathy by attempting to put the prosecution in the unfavorable light of unfairly using the criminal record of another defendant. Reversible error cannot be predicated upon this aspect of the case.

The next argument advanced by the defendant is his contention that Mississippi Code Annotated §§ 97-3-21 and 99-19-101 (Supp.1981) “are unconstitutional and viola-tive of the Eighth and Fourteenth Amendments to the United States Constitution.” He says that § 97-3-21 “is unconstitutional in that it does not allow the jury to sentence a defendant to life imprisonment without parole.” The following is asserted in his brief:

[T]he only instances in which one may be sentenced to life without parole are: (1) § 99-19-107, Mississippi Code of 1972, which states that in the event the death penalty is held unconstitutional, the person shall be sentenced to life without parole; (2) § 99-19-81 and 83 of said Code which are commonly called the habitual offender act, and (3) if one is convicted of armed robbery and given life, then § 47-7-3(d) of said Code would prevent his release or make his sentence life without parole.

He contends that because of the different sentencing options available under our present statutory scheme “and the absence of life without parole the imposition of the death penalty denies equal protection of the law and amounts to cruel and unusual punishment in view of the available options.” He says that under the present law execution is the only means by which a jury can be sure that the defendant will not be released and again return to society. He takes the position that regardless of how a jury might view an individual case, death is the only means to prevent the defendant from ever being released again. Further, he asserts “that the death penalty is per se cruel and unusual punishment” ... and “that the absence of the alternative form of sentencing ... denies equal protection of the law ...”

According to our prior decisions, the legislature’s prerogative is to define crimes and set the punishment for offenders. Peterson v. State, 268 So.2d 335 (Miss.1972). Also, we have held in a number of instances that the death penalty is not per se unconstitutional. Bullock v. State, 391 So.2d 601 (Miss.1980); Washington v. State, 361 So.2d 61 (Miss.1978). Similar issues were before the Court in Capler v. State, 237 So.2d 445 (Miss.1970), wherein we stated:

Viewing the statute as here construed, the fact that a jury could impose life imprisonment in one case and death in another, or different punishments in the same case, does not result in the possibility of unequal punishment to that class of persons convicted of murder in the first degree. The legislature has a very great .latitude in prescribing and fixing punishment for crime. Id. at 451. (Emphasis added). (Quoting from State v. Latham, 190 Kan. 411, 375 P.2d 788 (1962), cert. denied 373 U.S. 919 [83 S.Ct. 1310] 10 L.Ed.2d 418 (1963)).

The defendant is basically contending that the fact that the legislature declined to allow a jury to choose among conceivable gradations of punishment between the two statutorily specified alternatives, renders those statutory alternatives cruel and unusual. To follow his reasoning to its logical conclusion, any statute imposing such alternative penalties must allow for the jury to determine at exactly what point in his sentence the defendant should become eligible for parole. Such determinations are clearly within the legislative and executive province. The legislature’s decision to provide two alternative penalties, with clear guidelines for the application of each, is unquestionably within their proper discretion. Accordingly, this argument lacks persuasion.

The next issue raised by the defendant is whether the trial court erred in “allowing photographic slides previously admitted in evidence to be projected upon a screen during the state’s closing argument in the sentencing phase.” Our rule has long been that competency, relevancy, and materiality of photographs are matters resting within the sound discretion of the trial judge. Reddix v. State, 381 So.2d 999 (Miss.1980). In the instant case, there is no indication that the photographs were inordinately gruesome or that they would have inflamed a juror. The photographs have probative value going to the nature of the wounds inflicted upon the victim. On the issue of whether the offense was especially heinous, atrocious or cruel, it is likely that the photographs likewise had some probative value, and accordingly their being allowed into evidence does not constitute reversible error. Coleman v. State, 378 So.2d 640 (Miss.1979).

Next the defendant • contends that the jury’s verdict at both the guilt and sentencing phases of the trial is “contrary to the great weight of the evidence.” This portion of his argument, constituting only one page of his brief, sets forth neither logic nor authority in support of his bare contention that the verdict of guilty and the sentence of death were unsupported by the weight of the evidence.

Strong and convincing evidence links the defendant with the killing of Mrs. Roberts and establishes beyond a reasonable doubt that he was the guilty person. He was seen struggling with a woman at the Tote-Sum Store. In the car he was driving when stopped was a woman’s tennis shoe identified as that of Mrs. Roberts, matching another shoe taken from the parking lot just outside the store where she was seen struggling with the defendant. In that same location were found her eyeglasses, and a pair of brass knucks which, according to his friend Charles McDonald, appeared to be the same knucks shown McDonald during the preceding night at the wedding party.

Edwina Ard, a criminalist with F.B.I. training, testified that blood taken from the defendant’s khaki pants was identical to Shirley Roberts’ blood in all aspects tested, and that only .29%, considerably less than 1%, of the population had that particular combination of blood characteristics. Joe E. Andrews, also an F.B.I.-trained forensic scientist, specializing in hair and fiber identification, testified that he compared samples of pubic hairs taken from the defendant with combings obtained from the pubic area of Shirley Roberts, and found the same microscopic characteristics.

The defendant’s version was that he had never seen Mrs. Roberts and had nothing to do with her death. On the witness stand he testified that at about 4:30 or 4:35 A.M. he borrowed Charles McDonald’s car, a red Pinto, with instructions to return it by 7:00 A.M. He stated that he was using the car to deliver a package to the University Medical Center area but had car trouble and returned to his apartment to make repairs. There, he was afraid to enter because the lights were on in his apartment and the radio playing. Instead of going inside, he changed into some clothes and shoes that were outside. He further testified that he “turned to leave the front porch and fell backwards and passed out and did not awaken until morning.” After he awakened, he drove down Robinson Road and he observed a police car, which reminded him that his driver’s license had expired. According to the defendant, he threw out a package of marijuana after which he was stopped while reaching for a cigarette he had dropped. He denied ever having the woman’s shoe that was found in his car, but asserts that he saw the policeman put the shoe in his car. After hearing Charles McDonald testify that he (defendant) had a pair of brass knucks at the party, the defendant denied having the knucks.

On the witness stand during the sentencing phase, the defendant admitted that on two prior occasions he had been in an altercation and had shot a weapon in an argument about a van and on another occasion had shot up in the air during an argument with his brother-in-law. Testifying for him at the sentencing phase were his mother and several relatives who had a rather high opinion of him but who knew about his prior difficulties. We cannot say that the jury’s verdict, returned at either the guilt phase or the sentencing phase, was unsupported by the evidence beyond a reasonable doubt.

The next argument asserted by the defendant is that the trial court erred during the sentencing phase in allowing the jury to find that the murder was committed for pecuniary gain. Precisely, the defendant contends “that this aggravating circumstance is meant to cover capital offenses committed for compensation from another source, i.e., a hired assassin, or one who murders to collect other benefits, as distinguished from robbery. There was no evidence of a pecuniary gain in this meaning throughout the entire trial.”

Instruction number S-4 allowed the jury to find from the evidence the following aggravating circumstances if any:

1. The capital murder was committed while the defendant was engaged in the commission of robbery;
2. The capital murder was committed for pecuniary gain;
3. The capital murder was especially heinous, atrocious or cruel.

The defendant’s position is that the inclusion of the second enumerated aggravating circumstance, i.e., that the capital murder was committed for pecuniary gain, renders the allowance of this instruction reversible error for reason that the same burdened him with “the necessity of overcoming two aggravating circumstances” when he had been “charged with a murder during the course of a single felony.” When the Court along with counsel was considering state’s instruction number S-4, the following is excerpted from the record:

BY MR. GREGG:
If the Court please, for purposes of the record, I would object to it because I don’t think that has been proven beyond a reasonable doubt. I just make that for record purposes.

Obviously the defense objection made at the trial level was not on the same ground here argued, and ordinarily cannot on ap--peal be ground for reversal upon a different ground from that asserted below. Daumer v. State, 381 So.2d 1014 (Miss.1980). Nevertheless, we have specifically upheld the instruction now attacked, and we can find no merit to the present argument. Voyles v. State, 362 So.2d 1236 (Miss.1978); Bell v. State, 360 So.2d 1206 (Miss.1978).

As his final argument, defendant asserts that the trial court “erred in overruling defendant’s motion to suppress evidence taken from the defendant’s apartment and further erred by admitting the evidence in the trial ...” The defendant points out that the law officers “made a cursory search of the apartment and failed to discover” Shirley Roberts. Raising no challenge to the officers looking inside the apartment for Mrs. Roberts, the defendant states that they failed to seize any evidence during this first search of the apartment which they exited and went outside and then discovered her body 40 to 50 yards away. The officers informed the mobile crime lab personnel about the objects they had seen in the house. He notes that the crime lab technicians came and removed the victim, and it was their “re-entry” and war-rantless search of the apartment (made without the defendant’s consent) to which he now, as he did at the trial level, objects. During re-entry of the apartment, an evidence technician (officer) seized a padlock, two pair of pants, a pair of shoes, a wallet, a purse, a sweater, a blanket, and the sheets from the appellant’s bed, and took photographs. Also “re-entering” the apartment were police officers Adams, Patton and Foundren of the Mobile Crime Lab, who pointed out the observed objects.

The defense argues that this evidence, taken during re-entry of the apartment and used at trial, was extremely prejudicial and should have been excluded. He concedes that the rule against warrantless searches is subject to a few “specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). He theorizes that this “second” search was not incident to any established exception to the warrant requirement, and that the state failed to meet its burden to show any exception to that requirement. In reply, the state correctly notes that no full-fledged extensive investigatory search was conducted, and that the items which were seized had been observed to be “in plain view” during the initial search of the premises. Both the original entry and subsequent reentry were closely related in time, and the re-entry was confined to the area of the initial intrusion. Under such factual circumstances the seizure of those items was not violative of Fourteenth Amendment proscriptions.

The record is somewhat ambiguous regarding the sequence of events surrounding the search. For the purposes of clarity, the following chronology of events is set forth:

4:30 A.M. Smith borrows McDonald’s car.
5:00-5:10 A.M. Smith seen leaving Tote-Sum with Mrs. Roberts, by two witnesses.
5:30 A.M. Sgt. Otis arrives at Tote-Sum to make phone call. The two witnesses approach him and relate the incident they observed, describing with particularity the vehicle involved. Sgt. Otis radios this information to headquarters and locates one of the victim’s shoes (and other items) in the parking lot. Sgt. Otis remains at the Tote-Sum for approximately 45 minutes.
5:40 A.M. Officer Terry Grice arrives at the Tote-Sum in response to Otis’s radio call. He leaves shortly thereafter.
6:15-6:20 A.M. Sgt. Otis, still at the Tote-Sum Store, sees a red Pinto fitting the witnesses’ description approach the store, do a “U-turn” and leave. He pursues and stops the vehicle. He asks the driver, Willie Albert Smith, to get out of the car. Smith has no driver’s license on his person. Upon exiting the vehicle, Smith gets belligerent. Sgt. Otis observes the other shoe in the car and places Smith under arrest. Sgt. Otis observes mud and blood on Smith’s hands.
6:20-6:25 A.M. Officer Grice arrives at the scene of the stopped vehicle.
6:30 A.M. Sgt. Otis, Officer Grice and others go to McDonald’s house (the owner of the car). They stay approximately 10 minutes, during which time McDonald agrees to show them to Smith’s house. Smith is still in Sgt. Otis’s ear.
6:45 A.M. Officers meet at Smith’s apartment. Sgt. Otis remains at the car with Smith. Officers Grice and Roebuck make the first search of the house, looking for Mrs. Roberts. During the course of this search, they observe several articles, including some articles of women’s clothing, but do not stop to collect any of these articles. They search the house for approximately 4 minutes and determine that Mrs. Roberts is not in the house. They exit.
6:50 A.M. Search begins outside the house.
7:12 A.M. Mrs. Roberts’ body is discovered.
7:20 A.M. The mobile crime lab arrives on the scene with Officer Walter Welch and three others, approximately 50 minutes from the first officers’ arrival and search.
Upon being informed of the existence of certain articles in the house, they enter the house and enter Smith’s bedroom.
They stayed in the room approximately 30 to 35 minutes, photographing the room and removing the articles on Smith’s bed and on the floor.
8:00 A.M. The police leave the scene.

For clarity, we summarize the status of the situation at approximately 6:30 A.M. when the officers, with Smith in custody, arrived at his house (apartment). Two eyewitnesses had reported an assault and abduction. One of the victim’s shoes had been found at the store and the other in the defendant’s car. The defendant (with bloody hands) had been taken into custody within approximately one hour from the time of abduction, and the officers were in front of his house, a relatively short distance from the scene of the abduction.

In the context of these circumstances, the record shows that Officer Grice, a Jackson Police Department official, accompanied by several other officers, first entered the apartment trying to locate Mrs. Roberts, “because we were worried about her well being. We didn’t know whether she could possibly have been injured or something like that and we were concerned about her well being.”

Given the above situation, were officers Grice and Roebuck within their legal authority in making a warrantless search of Smith’s apartment without his consent? Courts in all jurisdictions have long recognized the existence of an “exigent circumstance” or “emergency doctrine” exception to the requirement for a warrant for search and seizure. The “emergency doctrine” has its roots in the common law, U. S. v. Barone, 330 F.2d 543 (2d Cir. 1964). Many recent decisions, both state and federal, have recognized that “important legitimate governmental interests may override the Fourth Amendment warrant requirement when official conduct is prompted by the motive of preserving life and reasonably appear[s] to be necessary for that purpose.” United States v. Perez, 440 F.Supp. 272, 288 (N.D. Ohio 1977), at n. 45, (see also cases cited therein).

Conduct prompted by the motive of preserving life has been upheld by the courts in a wide variety of circumstances. People v. Mitchell, 39 N.Y.2d 173, 383 N.E.2d 246, 347 N.E.2d 607 (N.Y.1976); United States v. Perez, 440 F.Supp. 272 (N.D. Ohio 1977); Patrick v. State, 227 A.2d 486 (Del.1967); Wayne v. United States, 318 F.2d 205 (D.C.Cir.1963), (Burger, Circuit Judge, concurring). See generally, LaFave, Search and Seizure, § 6.6 (1978). Obviously there is well-established judicial acceptance of the “emergency” or “exigency” doctrine as a narrowly defined exception to the general requirement of a warrant for all searches and seizures. What constitutes an emergency or an exigency that will allow such a warrantless search?

The basic elements of the exception may be summarized in the following manner: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize the evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

When may an officer claim an emergency or exigent circumstances so as to justify his warrantless entry and search of premises for which there is a “reasonable expectation of privacy?” (See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), (Harlan, J., concurring)). As then Circuit Judge Burger noted in Wayne v. United States, supra:

Neither the Constitution, statutes or judicial decisions have made the home inviolable in an absolute sense. Collectively they have surrounded the home with great protection but protection which is qualified by the needs of ordered liberty in a civilized society.
Breaking into a home by force is not illegal if it is reasonable in the circumstances. 318 F.2d at 211-12.

The reasonableness of those circumstances must be evaluated on a case by case basis. In light of the sequence and the timing of the events which transpired on March 15, 1981, Officers Grice and Roebuck’s belief that Mrs. Roberts was probably on the premises of defendant Smith’s residence and either in extreme danger or in need of immediate assistance was sufficiently reasonable and well-founded to justify their original entry into defendant Smith’s apartment. The legality of this entry is conceded by defense counsel.

Once lawfully within Smith’s apartment, the question arises as to the authority of the officers to effect seizures of certain objects within the dwelling. This question was asked somewhat rhetorically by then Circuit Judge Burger in Wayne, supra:

Are we to say that police or firemen may enter to apply a tourniquet or resuscitator, for example, but may not act on evidence of a crime which they then observe incidentally without any search? 319 F.2d at 212.

Certainly it cannot be said that the mere existence of either exigent circumstances or an emergency justifies a warrantless search unlimited in scope. The limits in the scope of a warrantless search undertaken pursuant to the emergency doctrine are embodied in the plain-view rule as set forth by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

In Coolidge, the United States Supreme Court points out that anytime any evidence or contraband is seized, such evidence or contraband is almost always in “plain view”. Therefore, the question is to determine both the legality and the legal significance of the circumstances bringing the officer into view of the evidence in question. “Plain view” in and of itself is never enough to justify the warrantless seizure of objects. No amount of probable cause alone will suffice to justify such a “plain view” seizure. 403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 586. However, when the “plain view” of an object is coupled with sufficiently “exigent circumstances”, the warrantless seizure of such an object is permitted. Coolidge gives several examples of these types of exigent circumstances: (1) when an incriminating object is discovered pursuant to a lawful search (via search warrant) for other specified objects; (2) when the incriminating object comes into plain view during the hot pursuit of a fleeing criminal; (3) when the incriminating object comes into plain view during the limited search of a suspect incident to an arrest; (4) when an officer is not searching for evidence, but inadvertently discovers the incriminating object. In the instant case, the officers’ original justification for entry into Smith’s apartment clearly falls within the “exigent circumstances” as set forth in Coolidge.

Consideration of the search of the defendant’s apartment and the subsequent seizure of the articles in question does not stop with the justification for the initial entry and a discussion of whether a seizure of the incriminating objects at that time would have been lawful. Officers Grice and Roebuck left the house after satisfying themselves that Mrs. Roberts was not in the house. They then proceeded to search the area immediately surrounding the house where they discovered Mrs. Roberts’ body. Defense counsel contends that at this point the exigent circumstance lapsed and any subsequent re-entry into the house required a warrant. A proper analysis of Coolidge and the underlying basis for the justification of “plain view” seizures reveals the fallacy in this contention. What if the police, upon their lawful entry into the defendant’s apartment, and after seeing the various articles of clothing, etc. lying in plain view upon the bed and the floor, and recognizing them for their evidentiary value, had stopped to gather them up, log their positions in the room, and otherwise insure that their evidentiary value was preserved? Such actions on the piart of the police officers might have cast grave and possibly fatal doubts upon the validity of the exigent circumstances justifying their initial entry. See Root v. Gauper, 438 F.2d 361 (8th Cir. 1971). A careful analysis of the actions of the officers upon reaching the scene of the “emergency” is vital to insure that the emergency doctrine exception to the requirement of a warrant does not escape its bounds and engulf the general rule. In the instant case, any actions on the part of the police officers other than those which clearly reflected their belief that Mrs. Roberts was in the vicinity, either in the house or immediately outside it, would have tended to cast doubts upon the validity of their search.

Viewed from this perspective, the conundrum of the emergency doctrine exception becomes apparent. If the officers stopped to seize the evidence in plain view, their initial search is invalidated since their actions would not have been consistent with the existence of an emergency. If they continue to search for the victim, so that the object is no longer in plain view, they may not return and seize the incriminating objects without first obtaining a search warrant. The solution to this dilemma must follow one’s viewing the totality of the circumstances surrounding the initial entry and search. From the time of their initial entry, the officers of the Jackson Police Department were engaged in only one search. That search had only one goal: locating Mrs. Roberts (and assisting her, if not too late). The actions of Officer Welch and the other members of the mobile crime lab (after the re-entry of the apartment) were merely to effectuate the physical seizure of articles in plain view which Officers Grice and Roebuck would have been able to seize had not the circumstances been so “exigent”. There was no unwarranted delay in time, nor was there any expansion of the scope of the search. The fact that the actual physical taking of the items into the custody of the police was effectuated by an evidence technician who was trained to preserve the evidentiary value of the objects, rather than by the first officers to view the objects, is not significant.

The state cites the case of La Fournier v. State, 91 Wis.2d 61, 280 N.W.2d 746 (1979), which dealt with the validity of a warrant-less search and seizure of evidence following an initial entry into the defendant’s place of residence. In that case, the first officer who entered the residence did so without a warrant under the “emergency rule”. He observed “plain view” incriminating evidence and called for assistance much as happened in the instant case. He called for other officers to “secure the scene” and left. Three other officers came within about fifteen minutes and entered the defendant’s premises. Evidence seized during this alleged “second entry” was sought to be suppressed. The Wisconsin Supreme Court upheld the last entry and seizure of evidence, and stated:

The three officers did no more than Weiland would have been justified in doing had he remained on the premises. They entered the same area of the house in which Weiland had found the drug victim and in which the contraband was discovered in plain view. These officers were called as backup; they were completing that which was lawful under the first entry, securing evidence in plain view. They did not expand the scope or nature of the original entry. Their purpose was limited to the evidence Weiland had found in plain view. That evidence and La Fournier’s statement that he had just shot up provided the officers with probable cause for La Fournier’s arrest and the custodial search which brought to light the heroin.
Whether a subsequent entry is detached from an initial exigency and war-rantless entry or is a continuation of the lawful initial entry can be determined only in light of the facts and circumstances of each case. We conclude that in the instant case the successive intrusions of Weiland and the three officers were close in time and practically identical in nature so as to be analytically and factually inseparable. The entry of the three officers must be regarded as a continuation of Weiland’s initial legal entry. No warrant was needed.

Id. at 69-70, 280 N.W.2d at 750-51.

This Court has been confronted with a somewhat similar situation. In Norman v. State, 302 So.2d 254 (Miss.1974), the Jackson police and the F.B.I. had arrest warrants for four people, and had received reliable information as to their location. Upon arrival at the house which informants had indicated as the suspects’ dwelling, a shootout occurred, killing one officer. Tear gas was employed and the occupants of the house surrendered. The officers entered the house and began to search for weapons. In the process of this legal search, they discovered what appeared to be a bomb. They immediately, and quite reasonably, left the house until an army bomb squad was able to come and remove the bomb from the house. Then they resumed the search. At trial the defendant sought to suppress the objects recovered as the result of this second search, claiming that there had been an illegal re-entry. In upholding the validity of this “second search”, we noted several factors which justified the officers’ actions. The original search had not been completed due to the discovery of the bomb. During the hiatus of the search, the police officers maintained the status quo awaiting the bomb squad. There was no unreasonable lapse of time. Finally, when search was resumed it was merely a continuation of the original search and hence could not be held to be unreasonable. See Crum v. State, 349 So.2d 1059 (Miss.1977). See also, Voss v. State, 198 Tenn. 135, 278 S.W.2d 667 (1955), cert. den. 348 U.S. 965, 75 S.Ct. 526, 99 L.Ed. 752 (1955); State v. Downey, 104 Ariz. 375, 453 P.2d 521 (1969).

In the instant case, the justification for the initial search differs from Norman, (emergency circumstances versus a search incident to an arrest), but in both situations the officers’ presence within the dwelling had a prior legal justification. The original search in the present case was not completed due to the overriding importance of first locating Mrs. Roberts. After the officers first exited defendant Smith’s apartment, Jackson police officers continually maintained the status quo around the residence. There was no unreasonable lapse of time between the initial viewing of the incriminating objects and the subsequent physical seizure. Finally, the entry of the house by the members of the mobile crime lab merely constituted a continuation of the original search. The only objects seized were those in plain view (or contained within them) and the only room searched was the one room in which they were seen.

Accordingly, we conclude that the original entry of Officers Grice and Roebuck appears justified under the emergency doctrine exception to the requirement of a warrant for the entry and search of a dwelling. Once in Smith’s apartment, they were authorized to seize incriminating objects coming into plain view. The fact that they did not do so at the time is merely evidence of the exigency of the particular circumstances. The second entry into Smith’s apartment by members of the mobile crime lab constituted a continuation of the original search. Therefore, the decision of the trial court to overrule the appellant’s motion to suppress those items of evidence recovered as a result of the search of Smith’s apartment was not error.

In its (appellee’s) brief filed in response to the defendant’s (appellant’s) brief, the state did not see fit to set forth a statement of facts. Whereupon, this Court in writing (dated July 6,1982) asked the state to file a “statement of facts as to all pertinent circumstances related to search of the apartment and seizure of evidence.” We also asked the state for additional “authorities or decisions” concerning “re-entry of the apartment and seizure of evidence ...” The state complied with the Court’s request, and in response thereto defense counsel filed a pleading by which the appellant “prays that the appellee’s brief and attempted supplement ... be stricken and this case remanded for new trial ...” Also, defense counsel discussed further the facts surrounding the search of defendant’s premises and the seizure of evidence, and set forth his views on cases cited by the state in its response to this Court’s request. Defense counsel also asserted additional argument concerning “in court identification” of the defendant by state’s witnesses. Also discussed in the response of defense counsel is the issue of the “pretrial identification” of the defendant.

This Court has carefully considered all these matters discussed in the paragraph immediately above, and all propositions argued. Our review of the case has extended to every part of the record which includes motions for change of venue, motion to suppress evidence, discovery motions, jury instructions, and a meticulously detailed motion for new trial. Jury instructions given clearly and adequately advised the jurors in all material aspects of their function. At the sentencing phase, jurors were liberally and specifically instructed as to mitigating circumstances which they were allowed to consider, including the defendant’s age, lack of significant criminal record, his employment record, plus “any and all other matters ...” which the jurors saw fit to “consider from the evidence as mitigating circumstances”. Jurors were instructed that they could consider “any circumstance or combination of circumstances” surrounding the defendant’s life and character, and surrounding the offense which “reasonably mitigates against imposition of the death penalty.” No reversible error has been pointed out by counsel, and we have been unable to find such.

After carefully reviewing this record, we have compared it with all our decisions upholding death penalties subsequent to Jackson v. State, 337 So.2d 1242 (Miss.1976). For other cases wherein we have affirmed the death penalty, see Bullock v. State, 391 So.2d 601 (Miss.1980). See also Johnson v. State, 416 So.2d 383 (Miss.1982). By his own testimony, the defendant admitted that he had a prior record of previous convictions for criminal offenses. He admitted that on two occasions he had fired a deadly weapon in separate altercations with other people. Comparison of this case with the other cases in which we have affirmed the death penalty causes us to conclude that such penalty here is not excessive in view of the aggravating and mitigating circumstances shown. No argument can be logically made that the execution of Smith upon this record would be wanton or freakish. We find that his execution would be consistent and even-handed with all the post-Jackson death penalty cases which we have previously affirmed.

At the trial the defendant was ably defended by astute counsel retained by his family. The trial accorded him was fair, and the verdict and sentence were based upon evidence which established his guilt and aggravating circumstances beyond a reasonable doubt.

Affirmance is, therefore, ordered, and Wednesday, the 29th day of September, 1982, is fixed as the date on which the death sentence shall be executed as provided by law.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . On cross-examination, Thomas’ version of the identification process became somewhat confused and contradictory. The appellant apparently contends that such impeachment on cross-examination renders the record devoid of any testimony which will support a finding that Thomas identified the defendant the next day in a lineup. Such contradictory statements go only to the weight and credibility of the witness’s testimony, which is properly solely within the province of the jury.

      . The defendant relies upon the Mississippi case of Isaacks v. State, 350 So.2d 1340 (Miss.1977), claiming that the list of four circumstances in which the “plain-view” seizure of contraband is held to be authorized is exhaustive in nature. Such reliance is misplaced. The four circumstances enumerated in Isaacks come essentially from the Coolidge case, with the exception of the fourth requirement, “incident to a search of a stopped automobile on probable cause or because of the mobility of the vehicle.” Isaacks at 1344. This listing of the four circumstances in Isaacks should not be read as constituting an exhaustive enumeration, but rather should be read under the doctrine of ejusdem generis as being examples of the types of circumstances which are discussed in the Coolidge case within the overall framework of a Fourth Amendment analysis.

      . The Supreme Court cites Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, as an example of this exigent circumstance. The Harris case, it should be noted, involved the discovery of a car registration card during the process of impounding an automobile. The court upheld the inadvertent discovery of the registration card since such discovery was the result of a “measure taken to protect the car.” Surely measures taken to protect a life are infinitely more worthy of justification.

      . Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), relied upon by the defendant, is factually quite different from the present case and not controlling.


author: SUGG, Presiding Justice,

text:
    Ames BELL, Appellant, v. HILL BROTHERS CONSTRUCTION CO., INC., Appellee.
    No. 53364.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Talmadge D. Littlejohn, New Albany, for appellant.
    Smith, Elliott & Fortier, Robert W. Elliott, Ripley, for appellee.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   SUGG, Presiding Justice,

for the Court:

This appeal is from an order of the Circuit Court of Union County sustaining three of appellee’s pleas in bar and dismissing appellant’s declaration. We reverse and remand for a trial on the merits. '

Appellant alleged in his declaration that he and appellee entered into a written contract on September 10,1979 whereby appel-lee agreed to purchase approximately 14,556 cubic yards of borrow material (fill soil) from appellant’s land and to place approximately 14,958 cubic yards of waste material on appellant’s land. The contract provided that appellee would pay appellant $1,000 for the borrow material to be removed from appellant’s land, and that appellee would pay appellant $5,000 damages for the privilege of placing waste material on appellant’s land, such waste material to be spread and leveled so as to allow natural drainage on appellant’s land. The written contract is attached as Appendix A to this opinion.

Appellant then alleged that, subsequent to the written contract, he and appellant entered into an oral agreement for the purchase by appellee of additional borrow material to be removed by appellee from appellant’s land. Appellant alleged that ap-pellee agreed to pay twenty cents per cubic yard for the additional 35,944 cubic yards of borrow material removed from appellant’s land for a total contract price of $7,188.80.

Appellant further alleged that he had performed all of the conditions of the oral agreement by allowing appellee to remove 35,944 cubic yards of borrow material in accordance with the oral agreement, but that appellee had breached the agreement by failing to pay the sum of $7,188.80.

Appellee answered and filed several pleas in bar. Without hearing evidence, the trial judge sustained the pleas in bar, and with respect to the plea of accord and satisfaction held:

[T]he court is of the opinion that the plea is well taken, and that as the contract is drawn, and that it is not ambiguous or uncertain as to the statements thereof. It is set forth in the alternative that the payment was for approximately 14,556 cubic yards, or as required by the Mississippi State Highway Department and the payment therefore was in the sum of $1,000.00 and was to be removed from the approximately four acres, or at least that was the amount of real property that was involved herein, and that there was a payment for damages on the spreading of waste material for approximately 14,958 cubic yards ...

The trial judge erred in holding that the plea of accord and satisfaction barred the action because the declaration clearly alleged that the suit was based on a separate oral agreement entered into subsequent to the written contract. Whether such oral agreement was entered into between the parties is a question to be decided by a jury after hearing evidence from both parties.

The trial judge also held that the written contract could not be altered by parol evidence under the provisions of section 75-2-202 Mississippi Code Annotated (1972).

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (Section 1-205) [§ 75-1-205] or by course of performance (Section 2-208) [§ 75-2-208];
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

In reaching this conclusion the trial judge relied on Ralston Purina Co. v. Rooker, 346 So.2d 901 (Miss.1977) and Noble v. Logan-Dees Chevrolet-Buick, Inc., 293 So.2d 14 (Miss.1974). Those cases are not applicable because in both cases an effort was made to vary the terms of written contracts by oral agreements claimed to have been entered into before the written contracts were executed. In the case at bar appellant is not attempting to vary the terms of a written contract by a previous or contemporaneous or oral agreement, but specifically alleged that the oral agreement was entered into subsequent to the written contract. Appellant brought suit on a separate, independent oral contract; therefore, the trial judge erred in holding that the suit was an effort to amend a written contract by a previous or contemporaneous parol agreement.

The trial judge also found that the suit was barred by the statute of frauds under section 75-2-201 Mississippi Code Annotated (1972) (Revised 1981). This statute provides that a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought. “Goods” are defined in section 75-2-105 Mississippi Code Annotated (1972) (Revised 1981) as follows:

(1) “Goods” means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Chapter 8) and things in action. “Goods” also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2-107) [§ 75-2-107],

Section 75-2-107 Mississippi Code Annotated (1972) (Rev.1981) provides in part as follows:

(1) A contract for the sale of minerals or the like (including oil and gas) or a structure or its materials to be removed from realty is a contract for the sale of goods within this chapter if they are to be severed by the seller but until severance a purported present sale thereof which is not effective as a transfer of an interest in land is effective only as a contract to sell.

The official comment on § 2-107(1) by the National Conference of Commissioners on Uniform State Laws follows:

1. Subsection (1). Notice that this subsection applies only if the minerals or structures “are to be severed by the seller”. If the buyer is to sever, such transactions are considered contracts affecting land and all problems of the Statute of Frauds and of the recording of land rights apply to them. Therefore, the Statute of Frauds section of this Article does not apply to such contracts though they must conform to the Statute of Frauds affecting the transfer of interests in land. [West’s Selected Commercial Statutes at 61 (1978)]

We have no Mississippi cases construing this section of the Uniform Commercial Code but two recent cases from other jurisdictions have adopted the official comment quoted above. Tousley-Bixler Const. v. Colgate Enterprises, 429 N.E.2d 979 (Ind.1982); DeLuca v. C. W. Blakeslee & Sons, Inc., 391 A.2d 170 (Conn.1978). These cases involved an oral contract for the sale of “fill soil” and “clay soil” to be removed by the purchaser.

We adopt the construction placed on the section by the official comment and the cases cited above, and hold that the words in the statute “minerals or the like ” include borrow material to be removed by the purchaser. We therefore hold that the statute of frauds, section 75-2-201, does not apply to the oral contract in this case because the contract provides for the purchaser rather than the seller to sever the borrow material from the land.

The oral contract in this case is governed by the statute of frauds affecting the transfer of an interest in land. Section 15-3-l(c) Mississippi Code Annotated (1972). However, we are of the opinion that appellant’s declaration is not barred by the statute of frauds covering sale of an interest in land for two reasons.

First, appellant alleged that the contract to sell borrow material to be removed from his land by the purchaser had been fully performed by him. Where a contract for the sale of land has been fully performed by one of the parties and nothing remains to be done by the other party other than to pay the consideration, the vendor is entitled to recover the purchase price. Washington v. Soria, 73 Miss. 665, 19 So. 485 (1896). In that case Mrs. Soria alleged that she had sold land to the appellant Washington for the consideration of $500 cash, payment of $500 twelve months later, and payment of $500 eighteen months later. She alleged she conveyed the land and, although Washington executed no writing promising to make the payments, he accepted the deed, recorded the deed, and went into possession of the land. Washington demurred to the bill. This Court held:

It is uniformly held that, after full performance of an oral agreement, the statute of frauds does not apply. The statute neither declares an oral contract to be illegal nor void. It does not prohibit the contract, but simply declares that no action shall be maintained to enforce it. Where the contract has been fully executed by one of the parties, and nothing remains to be done by the other than to pay the consideration, relief is very generally afforded at law by permitting the plaintiff to recover, not upon the special contract, but in assumpsit or on the case, upon the promise implied by law, for the statute has no application to promises implied by law. 2 Reed on Statute of Frauds, § 640. Where there has been a special contract fully performed by the plaintiff, he may recover either in case, on the contract or in indebitatus assumpsit for the consideration. Fowler v. Austin, 1 How. (Miss.), 156; Hill v. Robeson, 2 Smed. & M., 541; Cutter v. Powell, 2 Smith’s Lead.Cas., 1, and note; 2 Devlin on Deeds, § 1074. When the vendor has made conveyance of land to the vendee, who has executed no written promise to pay the purchase price, the courts, while uniformly affording relief, are not very well agreed upon what precise ground the right is rested.
With us the forms of action are not material. All rights may be redressed by an action on the case—for it is provided that “the declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language; and if it contain sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient, and it shall not be an objection to maintaining any action that the form thereof should have been different.” Code, § 671. (73 Miss. at 674, 676, 19 So. at 486)

In the case before the Court appellant alleged that appellee had removed the borrow material and all that remained to be done by appellee was to pay the consideration. Therefore, the statute of frauds does not apply because appellant alleged he had fully performed. Washington, supra.

Second, appellant is entitled to recover because the oral contract only amounted to a license granted by appellant to permit appellee to remove borrow material from appellant’s land. In a number of cases involving oral sales of timber to be cut and removed, which are sales of realty, this Court has held that an oral contract for the sale of timber is a license to cut and remove the timber and is not within the provisions of the statute of frauds relating to contracts for the sale of an interest in land. These cases also hold that the license is revocable at any time by the vendor and the vendor may recover the agreed purchase price of the timber theretofore cut and removed by the purchaser. Towles v. Hodges, 235 Miss. 258, 108 3o.2d 884 (1959); Dixie Pine Products Co. v. Breland, 205 Miss. 610, 39 So.2d 265 (1949); Rowan v. Rosenblatt, 206 Miss. 259, 39 So.2d 873 (1949).

In the oral contract in the case before us, the sale of the borrow material constituted a revocable license to appellee which permitted it to remove the borrow material from appellant’s land for a stated consideration. Appellant did not revoke the license and the declaration alleges that appellee removed the borrow material but refused to pay for it. The facts as alleged state a good cause of action not barred by the statute of frauds. For the reasons stated, we therefore reverse and remand for a trial on the merits.

REVERSED AND REMANDED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

APPENDIX A

HILL BROS. CONSTRUCTION CO., INC.

P. 0. Box 131 Falkner, Mississippi 38629

Kenneth W. Hill, President September 10,1979 PHONE 837-3161 AREA CODE 601

This agreement entered into this 10 day of September between Mr. Ames Bell herein called landowner, and Hill Brothers Construction Co., Inc., P. O. Box 131, Falkner, Miss., herein called purchaser of borrow material from landowner. Said purchaser also obtains by this agreement permission to waste material on said landowners property as required by the Mississippi State Highway Department concerning State Project No. SP-0926-0(4), Union County, Mississippi. The location of borrow pit will be approximately 150 feet east of station no. 250 and south of State Highway No. 348. The amount of borrow material to be required will be approximately 14,556 cubic yards or as required by the Mississippi State Highway Department. The purchase price of all borrow material required will be ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) paid to landowner by the purchaser. The borrow area involved will be approximately FOUR (4) ACRES or less for obtaining required borrow material. Landowner grants permission to waste material which will be approximately 14,958 cubic yards or as required by the Mississippi State Highway Department concerning the above project. Location of material to be wasted will be disposed of starting at Highway Right of Way and progressing away from Highway Right of Way filling low lying area from hill to hill of landowners property. Waste material used in filling low lying area will be worked to a grade of existing lot on the northeastern part of landowners property. Waste material used for fill will be used to fill low lying area until exhausted. When waste material has been exhausted purchaser will cease fill operations on landowners property regardless of finish grade. Disposal area will be kept in a reasonably smooth condition as work progresses. Purchaser will cut a new ditch in disposal area to allow natural drainage of landowners property. Ditch cut by purchaser will intersect existing ditch at back of fill area. Payment for damages to landowners property by placement of waste material will be FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00). Designated disposal area will be dressed reasonably smooth to allow transversing with a power tractor pulling a rotary mower. Sloping of disposal area and borrow pit area to be no steeper than 3:1. Borrow area to be left in a reasonably smooth condition easily transversed with a power tractor pulling a rotary mower. Seeding of waste area and borrow pit area will be done in accordance with Mississippi State Highway Department Specifications.

Existing timber on landowners property is the property of Mr. Jim Harrington, New Albany, Mississippi herein called timber owner. Timberowner has agreed to remove his timber within the area and location described above, concerning State Project No. SP-0926-0(4) Union County. The timberowner agrees to release landowner and purchaser from any and all damages incurred to said timber within the areas and locations described concerning this project.

EXHIBIT A

      . Section 75-2-107(2) Mississippi Code Annotated (1972) was amended in 1977 to include timber to be cut as a contract for the sale of goods. However, the principle followed in Towles, Dixie Pine Products and Rowan, supra, was not changed by the amendment because the principle in those cases is that the oral sale of any part of realty to be severed from the realty constitutes a revocable license not within the statute of frauds.