author: AUGUSTINE, Judge. WARD, Judge, AUGUSTINE, Judge. WARD, Judge,

text:
    Frances May Bua LO COCO v. Dr. Santo Joseph LO COCO.
    No. 12401.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    On Rehearing Oct. 19, 1982.
    Writ Denied Dec. 20, 1982.
    Floyd R. Reed, J. D., Reed & Reed, New Orleans, for plaintiff-appellant.
    Frederick J. Gisevius, Jr., Jane M. Gisevi-us, New Orleans, for defendant-appellee.
    Before GARRISON, WARD and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Plaintiff, Frances May Bua LoCoco, filed suit against her husband, Dr. Santo Joseph LoCoco, for separation a mensa et thoro, alleging both abandonment and cruelty under Art. 138 of the Louisiana Civil Code. The defendant denied plaintiff’s allegations and reconvened, alleging abandonment and cruelty on the part of his wife.

After a lengthy trial, the court ordered the separation sought by each of the parties, based on a finding of mutual fault.

The plaintiff now pursues this appeal, claiming error in the trial court’s finding of fault on her part. Alternatively, she argues that the trial court erred in not dismissing the case in its entirety, due to failure of each party to prove fault on the part of the other.

The first question before this Court, therefore, is whether the evidence adduced at trial supports either of the defendant spouse’s reconventional claims of abandonment and cruelty on the part of his wife.

The party seeking a legal separation on the basis of abandonment must prove the elements thereof. Although our Civil Code does not in terms define “constructive abandonment” among grounds for separation under Art. 138, considerable jurisprudence has developed which recognized “constructive abandonment” as occurring whenever one spouse, without just cause, orders the other to leave the matrimonial domicile. The rejected party is said to be “constructively” abandoned even though the offending spouse remains in the matrimonial domicile. Burnett v. Burnett, 349 So.2d 488 (La.App. 3rd Cir. 1977). The critical factor in “constructive abandonment” cases is the rejected spouse’s good faith effort to return and live with the other spouse. Robertson v. Robertson, 332 So.2d 896 (La.App. 2nd Cir. 1976).

Because the peculiar facts of this case also entail abandonment in the more commonly understood sense, we need only note that Article 143 of the Civil Code requires proof of the following elements to constitute abandonment: withdrawal of the spouse from the common dwelling; without lawful cause; with the constant refusal to return to live with the other. Von Beehman v. Von Bechman, 386 So.2d 910 (La.1980).

Although the trial testimony is in conflict on several points, we find that the credible testimony established the following facts:

Dr. and Mrs. LoCoco had been married for nearly twenty-five years as of the time of their physical separation on July 23, 1979.

For approximately a week and a half prior to that date, Mrs. LoCoco had refused to engage in sexual relations with her husband, preferring instead to sleep in her youngest son’s bedroom. During this period, there was some argument between the two over this new arrangement, but no more than can be reasonably expected to flow from such a dispute.

In the early hours of July 23, 1979, after returning from what was hoped to be a reconciliatory outing together, Mrs. LoCoco calmly informed her husband that she no longer loved him, and that she no longer wanted to be married. At first, she ordered him to leave the residence immediately, but then consented to allow him to remain but only for the night. As before, Mrs. LoCoco again slept in the youngest son’s bedroom and locked the door. There was no reconciliation that night.

The next morning, Dr. LoCoco packed a small bag with a few belongings and moved to the Fat City Motel, where he stayed for about a week.

He returned to the matrimonial domicile on August 1, 1979, to find his wife and children gone; they had already moved to Mrs. LoCoco’s mother’s house a number of days earlier.

Suspecting that Mrs. LoCoco might be at her brother’s house, Dr. LoCoco called and spoke with him. His wife and children were there having dinner. Dr. LoCoco ordered the children home and, although he did not speak with Mrs. LoCoco, requested that she return home to resume the marriage.

The children did return, but without their mother. Mrs. LoCoco did not go back to the matrimonial domicile until the next day, and then only to recover personal belongings. She continued living with her mother for sometime afterward before finding an apartment of her own in Kenner, Louisiana.

It is undisputed by the parties that over the course of the next two months, Dr. LoCoco made several attempts to persuade his wife to return to the marriage, finally even conducting a tour with her in the new family house in Metairie which had just completed construction. Having been again rebuffed on that occasion, Dr. LoCoco resigned himself to the fact that reconciliation was impossible and made no further attempts to achieve it.

We find that the wife’s acts constitute both constructive and actual abandonment. Once proven, the burden then shifts to the opposing party (the plaintiff in this case) to prove the alleged abandonment was done with lawful cause or adequate provocation. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976); Farkas v. Farkas, 264 So.2d 721 (La.App. 1st Cir. 1972).

Although her brief to this court styles the week preceding the July 23,1979 separation as a “reign of terror”, and alleges numerous acts of physical violence, Mrs. LoCoco’s own trial testimony reveals that Dr. LoCoco did not at any time strike her or physically abuse her during the entire year preceding the separation, these admissions coming only when pressed on cross-examination, after having testified that the defendant-husband had slapped and physically abused her. Furthermore, when called to testify in his mother’s behalf, the youngest son (who was present during the final argument of July 23) offered no corroboration whatsoever of any physical abuse by Dr. LoCoco. The defendant-husband resolutely denied having struck his wife on any night during the “reign of terror” or on any occasion during the time span to which the court had limited the testimony. To the contrary, he stated that although there was some argument over the week-long denial of sexual relations, the tone was more or less moderate. This was confirmed by Mrs. LoCoco’s own testimony to that effect.

The only other allegation of cruelty on the part of Dr. LoCoco which might have provided “lawful cause” for abandonment was that the defendant subjected her to insults and humiliation in front of the children. At trial, Mrs. LoCoco complained that her husband had the habit of countermanding her orders to the children. She did succeed in proving that on one occasion Dr. LoCoco told Nazarene, their daughter, not to listen to her mother’s order to wash the dishes. But as the defendant and the daughter pointed out, Nazarene was in the midst of final exams and required all the study time she could get. Under these circumstances, Dr. LoCoco’s countermanding order was not at all unreasonable nor was it done with the arrogance and humiliation that would warrant a finding of “cruelty”.

We find that the cause for the plaintiff’s abandonment was merely her own desire to be free from the responsibilities and obligations inherent in marriage. We accept as credible Dr. LoCoco’s testimony that during the last year of the marriage, Mrs. LoCoco frequently expressed displeasure with married life itself. He stated that as they approached their silver anniversary, the plaintiff told him that she would not want to be married to anyone for twenty-five years. Josie Cazeaux, a friend of the LoCo-cos, corroborated this testimony when she revealed under oath that in May, 1979, the plaintiff, in the presence of three other women, stated that she would not be celebrating her twenty-fifth anniversary with her husband. Dr. LoCoco further testified that shortly following the de facto separation, Mrs. LoCoco admitted she was tired of being a housewife for many years, that they had married at too young an age and that she wanted to be single again.

Mrs. LoCoco claimed that marriage to Dr. LoCoco deprived her of sufficient identity. To illustrate the point, she stated her resentment of the fact that Dr. LoCoco’s new company car, a Lincoln Continental, given to her to drive and use as her own, bore a license plate with the doctor’s name, “SAN-TO”. She also objected to the fact that the family home carried the names “Dr. and Mrs. Santo LoCoco” on the mailbox.

But the greatest friction arose over Mrs. LoCoco’s desire to move to Las Vegas to establish a business of her own. The defendant-husband opposed such a move, explaining that he had a well established medical practice in New Orleans (he was, at the time, Chief of Staff at Mercy Hospital) and furthermore, that construction of the new family house in Metairie was approaching completion.

Although Mrs. LoCoco denied having any plans to conduct a business in Las Vegas, the record supports a finding that Mrs. Lo-Coco had expressed these inclinations to her husband and had the intention of carrying them out. Clara Dykes, the family maid of seven years, stated in testimony that the plaintiff had briefly discussed such plans with her. It is not disputed that during the year proceeding the separation, Mrs. LoCo-co went to Las Vegas without her husband on three occasions, and made three solo trips during the five month period between the separation and the trial of this case in January, 1980. When cross-examined as to her purpose in going to Las Vegas and as to the frequency and duration of these trips, plaintiff displayed a baffling loss of memory and downright evasiveness.

We conclude that the plaintiff has totally failed to satisfy the burden of proving “lawful cause” for the constructive and actual abandonment of her spouse. While we recognize that each party was guilty of even vile verbal abuse of the other at certain times during the marriage, and that the general demeanor of each to the other was unpleasant (at best) during the last months, the Civil Code does not regard these factors in themselves as a reason to excuse an abandoning spouse. Lewis v. Lewis, 345 So.2d 1010 (La.App. 2nd Cir. 1977); Burnett v. Burnett, 324 So.2d 622 (La.App. 2nd Cir. 1975).

We are, of course, aware that since abandonment only takes place when a spouse leaves the matrimonial domicile without just cause, it is inconsistent to judge the abandoned spouse as being also “at fault”, for in that case, his fault would justify the abandonment.

We are also aware that in this case, the trial court found mutual fault of the parties.

The Louisiana Supreme Court faced the same result in Adams v. Adams, 389 So.2d 381 (La.1980), where only the wife, who was granted a separation on grounds of the husband’s abandonment, appealed because the judgment also decreed her to be at fault in causing the abandonment. It was held that “the better approach, where such an inconsistency is present, is to examine whether the record supports the finding at issue without regard to other findings not before the Court.” Adams, supra, at 382. See also Leriche v. Leriche, 303 So.2d 250 (La.App. 2nd Cir. 1974).

In the present case, as in Adams, the husband has not appealed, and therefore the question of fault on his part is not directly before this Court. The only issue which we may properly consider is whether the trial court erred in finding fault on the part of the plaintiff, Mrs. LoCoco.

For the reasons stated, we conclude that the trial court was correct in finding fault on the part of the plaintiff, the fault consisting of the wife’s abandonment of her spouse without lawful cause.

The judgment is therefore affirmed.

AFFIRMED.

WARD, Judge,

dissenting with written reasons.

In this petition for permanent alimony Ms. Bua alleged that her former husband, Dr. Lococo, precipitated the divorce when he abandoned her. She also alleged that she was justified in not returning to the matrimonial domicile after Dr. Lococo returned, since he had treated her cruelly during the marriage. Dr. Lococo alleged his wife abandoned the matrimonial domicile and caused the dissolution of the marriage. The trial court found both Ms. Bua and Dr. Lococo “mutually at fault.”

That finding is legally inconsistent. If Dr. Lococo abandoned the domicile before Ms. Bua left the domicile, she is not at fault. If Dr. Lococo treated Ms. Bua cruelly, forcing her to leave the domicile or justifying her refusal to return to the domicile after he returned, she is not at fault.

The majority opinion points out that Dr. Lococo has not appealed the trial judge’s finding of fault on his part, and therefore his fault must be accepted as proven; yet it finds Ms. Bua at fault and affirms the trial court’s decision. In order to affirm the trial court’s decision, the majority must necessarily find that Ms. Bua abandoned the matrimonial domicile — meaning she left without cause and without fault of Dr. Lo-coco; therein lies the inconsistency.

This in effect reverses the trial court’s finding that Dr. Lococo was at fault. This court cannot reverse the trial court’s finding of fault of Dr. Lococo when that finding of fact was not appealed.

The inconsistent finding of mutual fault should be reversed.

ON REHEARING

AUGUSTINE, Judge.

For the reasons stated in our original opinion, the judgment of the trial court in this matter is affirmed.

WARD, Judge,

dissenting.

I dissent because of the views which I expressed in my original opinion.

      . Rather than become enmeshed in the myriad conflicts and cruelties which may have occurred during the course of their twenty-five year marriage, the trial court wisely limited inquiry on these points to those occurring after July 23, 1978, a year prior to the date of de facto separation.


source: Caselaw Access Project

author:
SEXTON, Judge. SEXTON, Judge.
      FRED W. JONES, Judge, PRICE, Judge,

license: Public Domain

text:
    Mary Elizabeth Rogers MINGLEDORFF a/k/a Mrs. Mary Elizabeth Weaks, Plaintiff-Appellant/Appellee, v. AMERICAN BANK AND TRUST COMPANY IN MONROE, Monroe Building and Loan Association and ISM, Inc. d/b/a O.K. Finance, and Ouachita National Bank in Monroe, et al., Defendants- Appellees/Appellants.
    No. 14829.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    On Rehearing Sept. 20, 1982.
    Writ Denied Dec. 10, 1982.

      Guerriero, Smith, Hingle & Anzalone by Joe D. Guerriero, Monroe, for plaintiff-appellant/appellee, Mary Elizabeth Rogers Mingledorff a/k/a Mrs. Mary Elizabeth Weaks.
    Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for defendant-appellee/ap-pellant, Ouachita Nat. Bank.
    Hudson, Potts & Bernstein by James A. Rountree, Monroe, for defendants-appel-lees/appellants, Monroe Building and Loan Ass’n and ISM, Inc. d/b/a O.K. Finance.
    Boles & Mounger by Charles H. Ryan, Monroe, for defendant-appellee/appellant, American Bank and Trust Co.
    Brown, Wicker & Lee by Joseph S. Cage, Jr., Monroe, for defendant-appellee/appel-lant, L. Edwin Greer.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

In this action for the ranking of mortgages and privileges against the property of J. C. Mingledorff, the creditors, American Bank and Trust Company in Monroe, Mary Elizabeth Rogers Mingledorff a/k/a Mary Elizabeth Weaks, Monroe Building and Loan Association, ISM, Inc. d/b/a O.K. Finance, and Ouachita National Bank in Monroe all appeal from a trial court judgment which ranked their mortgages as inferior.

The property encumbered by the various recorded mortgages and privileges consists of two separate funds, each of which has been deposited in the registry of the Fourth Judicial District Court. The first fund (Fund No. 1), is made up of the proceeds from the sale of Mr. Mingledorff’s residence in Monroe, Louisiana. Fund No. 2 consists of Mr. Mingledorff’s interest in the successions of his parents, who both died prior to 1979. The distinction between the funds is important since there exist different claims relating to the two separate funds. We affirm the trial court’s ranking with respect to both funds.

FUND NO. 1

Those having claims against Fund No. 1 as ranked by the trial court are as follows:

1. L. Edwin Greer by virtue of his mortgage to “Future Holder” in the amount of $25,000 recorded January 5, 1979;
2. Monroe Building and Loan Association by virtue of a lien arising from attachment, recorded January 8,1979, with a suit on a note which was eventually reduced to judgment on November 19, 1979;
3. ISM, Inc., by virtue of a lien arising from attachment, recorded January 8, 1979, with a suit on a note which was eventually reduced to judgment on November 19, 1979; and
4. Mary Elizabeth Rogers Mingledorff, by virtue of a judgment on rule dated January 11, 1979, reflecting an inscription by the Clerk of Court to the effect that it was filed and recorded on January 11, 1979.

The principal claimants to Fund No. 1 are L. Edwin Greer, Monroe Building and Loan Association, and ISM, Inc. d/b/a O.K. Finance. The claims of these three creditors apparently well exceed the balance held in Fund No. 1, though the amount thereof is unclear to us from the record.

The only issue on appeal, with regard to Fund No. 1, is whether the instrument filed in the mortgage records on January 5,1979, at the request of L. Edwin Greer, was in fact a valid mortgage. The facts relating to the document are not disputed.

Mr. Greer had acted as legal counsel for Mr. Mingledorff and had been promised a fee of $25,000 for his services. Mr. Mingle-dorff paid $7,600 of that amount. In December of 1978 Mr. Greer requested security for his fees and legal expenses then outstanding, and for anticipated expenses. Mr. Greer drew up a promissory note for $25,000 secured by a mortgage on Mr. Min-gledorff’s residence in Monroe. The amount actually owed Mr. Greer on the note at the time of trial was $15,624 (plus legal interest and attorney fees as per the note). These instruments were then sent to Mr. Mingledorff in California where he was temporarily located. Mr. Mingledorff signed the mortgage in the presence of a notary and two witnesses as is required for an authentic act. Mr. Mingledorff then sent the mortgage to Mr. Greer. Since the note was payable to any future holder and therefore negotiable, Mr. Greer instructed Mr. Mingledorff to mail only the mortgage and to hand deliver the note to Mr. Greer or to a mutual friend in Monroe when Mr. Mingledorff returned to the state. Mr. Greer had the mortgage recorded in Oua-chita Parish on January 5, 1979. At that point in time Mr. Mingledorff still held the note as instructed by Mr. Greer. The note was later delivered to the mutual friend, who then delivered the note to Mr. Greer.

Monroe Building and Loan Association and O.K. Finance argue that, since the note was still in the hands of the maker and not yet delivered to Mr. Greer when the mortgage was recorded, the mortgage is invalid. They also contend the instrument here is a collateral mortgage and that such a mortgage is ineffectual until the note and mortgage are pledged. Also they allege that there was a lack of acceptance of the mortgage and note by Mr. Greer and without an acceptance there can be no valid mortgage. If any of these assertions are correct, the mortgages recorded by Monroe Building and Loan Association and O.K. Finance on January 8, 1979, outrank Mr. Greer’s mortgage. Monroe Building and Loan Association and then O.K. Finance as prime secured creditors would be entitled to the assets in Fund No. 1.

The trial court found no merit in the arguments of Monroe Building and Loan Association and O.K. Finance. First addressing the issue of whether the mortgage and note constituted a collateral mortgage, the trial court found that the jurisprudence clearly establishes that three instruments are required for a collateral mortgage to exist: a mortgage, a note, and a hand note. Greer’s mortgage cannot be classified as a collateral mortgage because the third instrument, the hand note, was not executed nor was there any intent to issue such a note. The trial court in written reasons for judgment stated:

“In the instant case, there is no evidence that the ‘ne varietur’ note and mortgage were pledged to secure a debt widened by another note on [sic] instrument. There is no merit to the argument that the ‘ne varietur’ note, rather than the hand note, is evidence of indebtedness. True, the ‘ne varietur’ note is evidence of the obligation secured by the mortgage but it is the third instrument (the hand note) in the collateral mortgage which is evidence of the indebtedness. Cameron Brown South, Inc. v. East Glen Oaks, Inc., 341 So.2d 450.”

We agree with the trial court that the instruments under consideration here do not constitute a collateral mortgage. A collateral mortgage is a mortgage designed and intended to secure a mortgage note pledged as collateral security for a debt or a succession of debts. A collateral mortgage is not designed to directly secure an existing debt, LSA-C.C. Arts. 3292 and 3293; Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972), rehearing denied; First Guaranty Bank v. Alford, 366 So.2d 1299 (La.1978), rehearing denied. Instead, the collateral mortgage note and the mortgage which secures it are pledged to secure a debt. First Guaranty Bank, supra.

Clearly, the mortgage at issue in this matter is not a collateral mortgage. Even though the note was made payable to any future holder, the evidence establishes that the mortgage here directly secures an existing debt, and does not involve a pledge of a note and mortgage to secure a debt. See Thrift Funds, supra. We conclude that the present mortgage is one for a specific debt.

The issue remaining, with regard to Mr. Greer’s mortgage, is whether Mr. Mingle-dorff’s continued possession of the note at the time the mortgage was recorded rendered the mortgage invalid.

Mr. Greer cites both Scott v. Corkern, 231 La. 368, 91 So.2d 569 (La. 1956) and Central Bank v. Bishop, 353 So.2d 1109 (La.App. 2d Cir. 1977), for the proposition that the jurisprudence permits a debtor to hold an instrument, negotiable or not, as agent for the creditor. We note that in both cases, the instruments were pledged and also that the pledged instruments (a note in Central Bank and an insurance policy in Scott) were first delivered to the pledgee before winding up in the pledgor’s possession. In the instant case we are dealing with a note, not a pledge of that note. LSA-C.C. Art. 3152 requires delivery of the pledged property to the pledgee, just as delivery is necessary to negotiate a bearer instrument. LSA-R.S. 10:3-202(1). The requirements of delivery and possession to effect and maintain a pledge are strict. Thus in our view the authorities cited by Mr. Greer do lend support to his position that the debtor may hold the instrument as agent for creditor.

Under LSA-C.C. Arts. 2985 and 2987, an agent may be appointed to perform legal acts that the principal himself has the authority to do. See Craft v. Trahan, 351 So.2d 277 (La.App. 3d Cir. 1977). We find no restriction which would disqualify the maker of the note from being appointed such an agent to temporarily accept and hold the note for the payee. Mr. Greer’s testimony at the trial was sufficient to support the trial court’s finding that such an agency relationship did exist.

Finding an agency relationship between Mr. Greer and Mr. Mingledorff, we find that the appellants’ argument that there was no acceptance of the note and mortgage by Mr. Greer is without merit. Mr. Greer’s intent to accept both instruments is obvious by his preparation of both documents, his sending them to Mr. Mingledorff with instructions to sign the note and return the mortgage to him but to personally deliver the signed note. The note was accepted by Mr. Greer through his agent, Mr. Mingledorff.

We therefore hold that L. Edwin Greer’s mortgage recorded January 5, 1979, primes those of the appellant creditors. We affirm the trial court’s rankings as to Fund No. 1.

FUND NO. 2

We now address the ranking of mortgages and privileges against Fund No. 2 which is composed of Mr. Mingledorff’s interest in the successions of his parents. Those having claims against Fund No. 2 in the amount of $31,693.50 as ranked by the trial court are as follows:

1. Mary Elizabeth Rogers Mingledorff (Weaks), by virtue of the judgment in the amount of $2,200 rendered on January 11, 1979;
2. The Ouachita National Bank in Monroe, by virtue of a lien arising from attachment filed on January 12, 1979, with a suit on a note which was eventually reduced to judgment;
3. Monroe Building and Loan Association, by virtue of a lien arising from attachment filed January 12, 1979, with a suit on a note which was eventually reduced to judgment;
4. ISM, Inc., d/b/a O.K. Finance Company, by virtue of a lien arising from attachment filed January 12, 1979, with a suit on a note which was eventually reduced to judgment;
5. American Bank and Trust Company in Monroe, by virtue of its judgment rendered on March 6, 1979, and the subsequent garnishment of the successions on December 20, 1979; and
6. Mary Elizabeth Rogers Mingledorff (Weaks), by virtue of her judgment rendered on November 20, 1979.

The issues raised regarding Fund No. 2 are: (1) when a money judgment is filed prior to the running of suspensive appeal delays and subsequently no suspensive appeal is taken, how does this affect the rights of creditors acquired during the interim? (2) does such a recorded money judgment create a judicial mortgage upon the judgment debtor’s interest in an unopened succession? and (3) what is the proper method of seizure of a debtor’s interest in a succession?

LSA-C.C. Arts. 3322 and 3323 conclusively support appellee, Mrs. Mingle-dorff’s (Weaks), position that in a case where a money judgment is recorded prior to the running of the suspensive appeal delays and no such appeal is taken, the judicial mortgage created by the recordation of the judgment relates back to the date on which the judgment was recorded.

Turning next to the question of the effect of Mrs. Mingledorff’s (Weaks) judicial mortgage on the fund, the Louisiana Supreme Court recently explained that both seizin and ownership, though different, flow to the heir at the time of death, Baten v. Taylor, 386 So.2d 333 (La. 1979):

“The court of appeal . .. mistakenly equated seizin with ownership, [footnote omitted] Seizin is not ownership, however, but the legal investiture of one class of heirs with possession of the succession upon the death of the deceased, enabling the heirs who acquire seizin, from the instant of death, to bring all the actions which the deceased could have brought. Lazarus, The Work of the Louisiana Appellate Courts for the 1971-72 Term, 33 La.L.Rev. 199, 201-02 (1973); 3 Marcade, Explication Du Code Civil no. 47, at 33 (7th ed. 1873) as cited in Lazarus, supra, at 202 n. 12. Ownership, on the other hand, is transmitted by operation of law at the moment of death to heirs and legatees designated by the Code, regardless of whether they have seizin of a particular succession or whether they can ever have seizin, [footnote omitted] For example, although a legatee under a particular title cannot acquire seizin, he has ownership of the thing bequeathed to him from the day of the testator’s death. La. Civ.Code art. 1626. In order to be eligible for seizin, an heir must be either a forced heir, universal legatee or legitimate heir; and the latter two classes acquire seizin only in default of those preferred to them. Whether an heir acquires seizin depends, therefore, not on his ownership of succession property, but on whether he is a member of the class of heirs entitled to seizin of a particular succession according to the codal order of priority.
The redactors of the Code of 1825 made the distinction between ownership and seizin clear when they adopted the French system of succession, which embodies two different concepts: (1) Ownership rights of the heir are vested from the moment of the death, and, (2) seizin, the faculty of claiming and exercising possession, is acquired by either the forced heirs, the universal legatee or the legitimate heirs at the moment of death. Lazarus, supra, at 201; Comment, 49 Tul.

L.Rev. 1110, 1111 (1975); 1 Louisiana Legal Archives, Project of the Civil Code of 1825 at 115, In other words, as Planiol observes:

‘Seizin has nothing to do with the transfer of property, which takes place immediately, whether it is in favor of heirs who have seizin, or who are deprived of it. It affects only the taking of possession of the estate, which takes place in two forms, one for the property in kind, the other for the rights of action.’ 3 Planiol, supra § 1938, pp. 604-05.” Id. at 339-340.

The Tableau of Distribution in the succession of Mr. Mingledorff’s parents discloses that the majority (78%), of the succession assets were real estate. This real estate was sold and the entirety of Mr. Mingle-dorff’s interest therein (including the interest in movables) was reduced to cash. This sum, in the amount of $31,693.58, was paid into the registry of the court. The ancient but still valid case of Smith v. Charles, 27 La.Ann. 503 (La.App.1875), squarely addresses the issue at hand:

“The heir being considered seized by the succession from the moment of its being opened, the right of possession, which the deceased had, continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession; and each of the heirs becomes an undivided proprietor of the effects of the succession for the part or portion coming to him . . . and the recording of a judgment against an heir was held to affect all the mortgageable property thus owned by such heir.”

Also, LSA-C.C. Art. 3328 notes:

“The judicial mortgage may be enforced against all the immovables which the debtor actually owns or may subsequently acquire.”

Thus Mr. Mingledorff’s ownership vested in the real estate belonging to his parents at their death. The judgment of Mrs. Mingledorff (Weaks) is well below the value of his interest therein and is therefore properly ranked by the trial court as the superior privilege against Fund No. 2.

The final issue is whether the three creditors (Ouachita National Bank, Monroe Building and Loan Association, and ISM, Inc.), who attached Mr. Mingledorff’s interest in his parents’ unopened succession contemporaneously with their suits on notes, prime the claims of American Bank and Trust who garnished the succession under a writ of fieri facias subsequent to judgment, and that of Mrs. Mingledorff as a result of her judgment and judicial mortgage of November 20, 1979.

Having determined that the heir is vested with ownership of his interest in the deceased’s succession at the moment of death, we find that this interest may be attached by creditors as was done here by Ouachita National Bank, Monroe Building and Loan Association and ISM, Inc., d/b/a O.K. Finance. Our conclusion is buttressed by the holdings in First National Bank and Trust Co. of Vicksburg v. Drexler, 171 So. 151 (La.App. 2d Cir. 1936); Van Der Kar v. Stead, et al, 21 So.2d 111 (La.App. 1st Cir. 1945); Jackson-Hinds Bank v. Davis, 244 So.2d 633 (La.App. 4th Cir. 1971). All of these cases stand for the proposition that an heir’s creditor may seize that heir’s interest in a succession by attachment of that interest. As explained in Jackson, what is seized is not the property of the succession but rather is the heir’s interest in the succession. Such is the case here. The creditors have attached the heir’s interest in his parents’ succession. There is no attachment of succession property, therefore, there is no need to open a succession. By attaching an heir’s interest the creditors merely put themselves in the position of receiving whatever interest the heir has and receiving that interest whenever the heir would have received it. Since only the proprietary interest of Mr. Mingledorff and not succession property is attached, it matters not that the succession was unopened at the time the attachments were made. See First National Bank and Trust Co. of Vicksburg, supra.

Thus under LSA-C.C.P. Art. 2292 the creditors acquired a privilege which gives them a superior claim to Mr. Mingledorff’s interest in his parents’ succession. We therefore affirm the trial court’s ranking of the privileges of Ouachita National Bank, Monroe Building and Loan Association, and ISM, Inc., d/b/a O.K. Finance, respectively as inferior only to the judicial mortgage of Mrs. Mingledorff (Weaks) which was recorded on January 11, 1979. We affirm the trial court’s rankings as to Fund No. 2.

Thus the entire judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

Before PRICE, HALL, MARVIN, FRED W. JONES and SEXTON, JJ.

ON REHEARING

SEXTON, Judge.

A rehearing was granted in this case to reconsider our original opinion, particularly with respect to Fund No. 1. Upon reconsideration, we adhere to our original decision affirming the district court judgment as to both Fund No. 1 and Fund No. 2, essentially for the same reasons expressed in the original opinion.

For clarification, we point out that in discussing the trial court’s reasons for judgment we did not hold or intend to hold that a “hand note” is essential to confection of a collateral mortgage “package.” A hand note is usually but not necessarily present in a collateral mortgage transaction. The principal point in the original opinion was that, in addition to a mortgage and note, there must be a third element, a pledge of the mortgage note, to create a collateral mortgage which would rank only from the date the mortgage note is pledged.

We continue to emphasize that there were no elements of pledge involved in this transaction, thus precluding characterization of the mortgage as a collateral mortgage with the resulting ranking effect as urged by appellants. This mortgage securing a note evidencing a debt for specific fees and anticipated costs without any elements of pledge must be categorized as a conventional mortgage, ranking from date of recordation.

Since the original opinion viewed the mortgage as clearly not a collateral mortgage, the central point of concern in the original opinion, consistent with the issue presented by appellants’ specifications of error, was the issue created by the temporary retention of the note by the maker, rather than the kind of mortgage involved. We adhere to the views expressed in the original opinion on that issue, holding that the general codal rule of ranking the mortgage from the date of recordation is not altered under the particular facts of this case where the maker, pursuant to express instructions from the intended holder and owner of the note, mailed the mortgage to the creditor but maintained possession of the note for the holder and owner’s account for a few days until physical delivery could be accomplished in the ordinary course of the practicalities of the situation.

For clarification, reference to the “payee” of the note in our discussion of this issue should have been to “holder and owner” of the note.

As clarified, our original opinion and judgment is reinstated as the judgment of this court.

FRED W. JONES,'J., dissents in part and concurs in part, and assigns written reasons.

PRICE, J., dissents in part and concurs in part for the reasons assigned by FRED W. JONES, J.

FRED W. JONES, Judge,

dissenting in part and concurring in part.

I disagree with the conclusion of the majority, on rehearing, that our original opinion was correct in holding that the Greer lien primed other liens affecting Fund No. 1.

At the hearing on the rule filed by Mrs. Mingledorff to rank the mortgages and liens affecting this fund, the only witness to testify concerning the circumstances surrounding the confection of the promissory note and mortgage by Mingledorff on December 29, 1978, was Greer, the holder of the promissory note.

Greer, a Shreveport attorney, stated that in October 1978 he agreed to represent Min-gledorff, a Monroe resident, in connection with a pending federal criminal investigation and any subsequent prosecution for a fee of $25,000, payable in three installments of $7600 each, with the first due on November 1, 1978, the second on November 15, 1978, and the third when Greer began to prepare for trial. Mingledorff paid Greer $7600 on November 1, 1978, but made no subsequent payments.

Greer further testified that on or about December 21, 1978, Mingledorff telephoned him from California and asked Greer if he would wait and take the balance of his legal fee ($14,900) out of the proceeds from the sale of Mingledorffs Monroe residence, which was on the market at that time. When Greer responded in the affirmative, the parties agreed that Greer would prepare and mail to Mingledorff a promissory note in the principal amount of $25,000, to cover the $14,900 indebtedness for legal services and all expenses that might be incurred in connection with a criminal trial, accompanied by a mortgage for the same amount covering Mingledorffs Monroe residential property, to secure payment of the note. However, in his testimony Greer explained that if the U.S. Attorney’s office declined to prosecute his client, Mingledorff would not owe the final $7600 installment.

Consistent with the parties’ understanding, Greer prepared and mailed to Mingledorff a promissory note for $25,000, payable to Future Holder, due on demand, bearing 8% per annum interest from date, together with a mortgage identified therewith covering the Monroe residential property. Greer instructed Mingledorff by telephone to complete both instruments in accordance with his directions and mail the mortgage back to Monroe for filing and recordation. However, since the promissory note was bearer paper and could possibly be lost in the mail, Mingledorff was requested to hold that instrument in his possession until he returned to Monroe.

Mingledorff apparently executed the promissory note and mortgage on December 29, 1978. The mortgage was mailed back and recorded in the office of the Ouachita Parish Clerk of Court on January 6, 1979. Mingledorff retained the promissory note in his possession until he returned to Monroe later in January 1979, at which time he gave the instrument to David McCormick, a friend of Greer. McCormick testified that he held the note until the spring of 1980 when he turned it over to Greer’s legal counsel in this proceeding.

At the time of the trial of this rule, Greer stated that Mingledorff owed him $17,-232.60 for legal services rendered and expenses incurred in connection with the federal criminal charge.

Applicable Law

The Louisiana Civil Code recognizes two kinds of conventional mortgages — the ordinary conventional mortgage granted to secure a specific debt and the mortgage to secure future advances. These mortgages are accessorial obligations, dependent upon underlying valid obligations for their existence.

The conventional mortgage granted to secure a specific debt ranks with reference to other mortgages from the time of its recordation. Where the mortgage is given to secure future advances (or future obligations) and the advances are in fact made, that mortgage has a retroactive effect to the time of the contract and is likewise ranked as of the time of its recordation.

It was held in Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972) that:

“... [i]n order to secure a future debt, a mortgage need not express on its face that it is given for future advances. It may be phrased as security for an existing debt, when no debt in fact exists, and yet secure a later debt in accordance with the intention of the parties.”

In Pickersgill & Co. v. Brown, 7 La.Ann. 297 (1852) the mortgage was drafted in terms of an existing debt, but was actually given partly for an existing debt and partly for later advances. The court classified the mortgage as one for future advances. Also see Hortman-Salmen Co. v. White, 168 La. 1057, 123 So. 711 (1929).

In addition to the two described conventional mortgages, Louisiana jurisprudence has created a third category — the collateral mortgage, which represents an unusual blend of pledge and mortgage. It seems to be generally agreed that the purpose of the collateral mortgage package is to confect a mortgage note that can be pledged as collateral security for either a pre-existing debt, for a debt created contemporaneously with the mortgage, for a future debt, or for a combination of these. The collateral mortgage note or “ne varietur” note is not the evidence of the indebtedness, but is merely the security that will be pledged as collateral for the true debt, which is often but not necessarily evidenced by a “hand note.” Unlike the other two conventional mortgages, the collateral mortgage ranks only from the time that the collateral mortgage note is issued or pledged to secure a debt. Tallulah Production Credit Assn. v. Turner, 391 So.2d 885 (La.App. 2d Cir. 1980).

The fact that both the future-advances mortgage and the collateral mortgage can be used to secure future advances or future obligations has been a source of considerable confusion. Attempting to draw a line of demarcation between the two kinds of instruments, the court in Cameron Brown South, Inc. v. East Glen Oaks, Inc., 341 So.2d 450 (La.App. 1st Cir. 1976), found that a construction mortgage was a future-advances mortgage rather than a collateral mortgage because it provided for specific future advances. On the other hand, the collateral mortgage is generally used to secure future advances of an unspecific variety-

To summarize, generally, as explained in Thrift Funds Canal, Inc. v. Foy, supra, a mortgage for a specific debt is a mortgage given to secure a particular, existing debt; a mortgage for future advances is a mortgage given to secure a debt not yet in existence; a collateral mortgage is a mortgage designed, not to directly secure an existing debt, but to secure a mortgage note pledged as collateral security for a debt or a succession of debts, with the mortgage usually drawn in favor of future holders.

Applicability of Law to Facts of the Case

Against this background of the Louisiana law dealing with conventional mortgages covering immovable property, we direct our attention to the mortgage in question securing the $25,000 promissory note held by Greer.

On its face this mortgage secured a bearer note evidencing a specific debt then in existence. However, Greer stated that Mingledorff only owed him $14,900 at the time he signed the note and mortgage, Therefore, this was obviously not a conventional mortgage securing a specific existing indebtedness. As a matter of fact, Greer testified that the note represented a then existing, fixed indebtedness together with possible future obligations. This leads us to the critical question — is the mortgage one for future advances, subsequently actually made, (ranking from time of recordation) or is it a collateral mortgage (ranking from time of pledge of the note)?

As previously noted, our jurisprudence recognizes that a future-advances mortgage may secure both an existing debt and a future debt. However, it seems clear that, to fall into this category of conventional mortgage, the instrument must secure specific future advances. In this case there is some question as to whether Greer, who was not named as mortgagee in the mortgage nor as payee on the note, was obligated to make any future advances or render other services in the future. Be that as it may, the substance of Greer’s testimony was that any future advances were indefinite and non-specific. In fact, at the time of the trial, when Greer’s representation of Mingledorff in the federal proceeding had evidently terminated, Mingledorff only owed Greer $2,332.60 over and above the $14,900 indebtedness existing when the note and mortgage were executed. Consequently, the instrument in question may not, under our law, be categorized as a future-advances mortgage.

Having engaged in this process of elimination, I conclude that this mortgage, given to secure existing and future indebtedness, is a collateral mortgage. Although not containing the customary language stipulating that the note and mortgage were intended to constitute integral parts of a collateral mortgage package, it is significant that the note is bearer paper made payable on demand. Further, I glean from Greer’s testimony that the $25,000 note itself was not meant to evidence the existing indebtedness (fixed) and future indebtedness (indefinite), but was designed to secure that indebtedness.

Concluding that the $25,000 note held by Greer is secured by a collateral mortgage, it follows under our law that the mortgage in question ranks as of the time that the note was issued or pledged by Mingledorff to secure his indebtedness to Greer. McCormick testified that he received the note on Greer’s behalf from Mingledorff when the latter returned to Monroe from California sometime in January 1979. I gather that the pledge of this collateral mortgage note occurred subsequent to January 11, 1979 (date of recordation of Mrs. Mingledorff’s $2200 judgment), but the record is not clear on this point. Regardless, it was Greer’s burden to establish that the collateral mortgage note held by him was pledged at a time in January prior to the recordation of the other liens recorded that month — a burden which he failed to discharge.

For the reasons explained, I find that the trial court erred in finding that the $25,000 mortgage note held by Greer primed the liens of Monroe Building and Loan Association, ISM, Inc. and Mrs. Mingledorff. Insofar as the majority holds otherwise, I respectfully dissent.

I concur in the majority opinion insofar as it affirms' the trial judge’s ranking of liens affecting Fund No. 2, simply noting that a mortgage of this nature affects only the residuum of the mortgageable property accruing to the heir [whose interest in the immovable property of the unopened succession is burdened by the judicial mortgage] after all succession debts are settled. Succession of Tureaud v. Gex, 21 La.Ann. 253, 255 (1869).

DISSENTING IN PART AND CONCURRING IN PART.

PRICE, Judge,

dissenting in part and concurring in part.

I concur in the majority opinion insofar as it affirms the trial judge’s ranking of liens affecting Fund No. 2 is concerned. I must respectfully dissent from the majority opinion holding that the Greer mortgage primes other liens relating to Fund No. 1 for the reasons assigned by Judge Fred W. Jones.

      . LSA-R.S. 10:3-202. Negotiation
      (1) Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary endorsement; if payable to bearer it is negotiated by delivery.

      . LSA-C.C. Article 3322. Effective date of judicial mortgage
      The Judicial Mortgage takes effect from the day the Judgment is recorded in the manner hereinafter directed.

      . LSA-C.C. Article 3323. Effect of appeal from judgment
      If there be an appeal from the judgment and it is confirmed, the mortgage relates back to the day when the judgment was recorded.

      . LSA C.C.P. Article 2292. Privilege of creditor on seized property; successive seizures
      The seizing creditor, by the mere act of seizure, acquires a privilege on the property seized, which entitles him to a preference over ordinary creditors.
      When several seizures of the same property are made by ordinary creditors, the seizing creditors acquire a privilege and are entitled to a preference among themselves according to the order of their seizures.

      .Greer explained that, although he worked out a plea bargain for Mingledorff with the office of the U.S. Attorney and, consequently, did not have to go to trial, Mingledorff understood that the third or last fee installment of $7500 was owed since Greer had completed preparations to try the case.

      . La.Civil Code Article 3290.

      . La.Civil Code Article 3292.

      . La.Civil Code Article 3284.

      . La.Civil Code Article 3329.

      . La.Civil Code Article 3293.

      . For an excellent discussion of this subject see Nathan and Marshall, The Collateral Mortgage, 33 La.L.Rev. 497 (1973).

      . As Nathan and Marshall pointed out in the cited law review article, p. 524, “the classic example of the ordinary mortgage to secure future advances is the agreement of a lending institution to advance funds in connection with the construction of a building; for example, homestead A agrees to advance $50,000 for the construction of a house on property belonging to B, where B has entered into a building contract for the construction of the house by contractor C. The building contract provides for stage payments to the contractor, as the slab is poured, the roof constructed, the electrical and plumbing roughed in, and so forth. Homestead A agrees that it will advance the funds and make payments to the contractor as the various stages are met and certified as having been completed. Homestead A may take a mortgage on B’s property at the same time that it commits itself to advance funds for the construction of the house.... As each stage is completed by contractor C, homestead A advances to him the funds for that stage, and under the provisions of article 3292 and 3293 of the Civil Code, the advances made by the homestead are secured by the mortgage originally granted and each advance relates back to the original date of the mortgage.”


author: WARD, Judge.

text:
    B.A. HORSTMANN and Mrs. B.A. Horstmann v. Darwin DRAKE and Continental Insurance Company.
    No. 12972.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Oct. 26, 1982.

      Charles R. Capdeville, Metairie, for defendants-appellants.
    Bruce G. Reed, New Orleans, Law Office of Richard A. Tonry, Chalmette, for plaintiffs-appellees.
    Before BYRNES, WARD and WILLIAMS, JJ.
   WARD, Judge.

Dr. and Mrs. Horstmann brought suit in the Civil District Court seeking damages for personal injuries and medical expenses they sustained in an automobile accident. In the suit they allege they were injured on February 11, 1978, when an automobile driven by Darwin Drake struck the rear end of the automobile they occupied. After the accident, Dr. and Mrs. Horstmann attempted to locate Drake, but they were unsuccessful, and they could not serve him with either their petition for damages or their pretrial motions. They therefore joined as a defendant their insurance carrier, Continental Insurance Company, which had insured Dr. Horstmann’s vehicle and any of its occupants against the risk of injury from an uninsured motorist. After a trial on the merits, the jury awarded to Dr. Horstmann $30,000.00 for pain and suffering and $10,-000.00 for lost income; and to Mrs. Horst-mann $20,000.00 for pain and suffering and $300.00 for medical expenses. The trial court rendered judgment, based on the jury verdict, against Continental, and Continental has appealed, alleging that there were two errors committed during the trial.

First, Continental claims the trial judge erred when he refused to permit the jury to hear testimony that would show that Dr. Horstmann by verbal instructions had purchased uninsured motorist coverage with limits of $5,000.00 for injuries to one person and $10,000.00 for injuries to more than one. Since the jury’s award exceeded those limits, that award must be reduced if Dr. Horstmann gave those instructions and if, but only if, verbal instructions may reduce uninsured motorist limits. Otherwise, the uninsured motorist policy limits are required by statute to be the same as Dr. Horstmann’s policy limits for bodily injury to others, in this case $100,000.00/$300,-000.00, more than enough to cover the jury’s award. LSA-R.S. 22:1406.

During trial Continental offered the testimony of Mr. Crusel, Continental’s agent, to prove Dr. Horstmann was insured by Continental for years prior to the accident and that he had always selected $5,000.00/$10,000.00 coverage for uninsured motorist- risk. Continental claimed that since the policy at the time of the accident was a renewal policy, Dr. Horstmann’s verbal instructions in the purchase of prior policies applied to that policy. Dr. Horst-mann objected to the offer; the trial judge sustained the objection, and Continental proffered the excluded testimony.

Although Continental alleges the trial judge erred, we hold that the ruling is correct; a prior oral selection of lower limits is not applicable to the policy that insured Dr. Horstmann at the time of the accident. Evidence of a prior oral selection of a lower amount of coverage is immaterial. We base our holding on the Louisiana Supreme Court’s decision in A.I.U. Insurance Co. v. F.J. Roberts, Jr., 404 So.2d 948 (La. 1981). In that case the court said:

Uninsured motorist coverage is to be determined not only by the provisions of the contract but also by applicable statutes. In the absence of a specific rule, general insurance law controls. While it is true that prior to 1977, La.R.S. 22:1406 did not require selection of lower limits to be in writing, La.R.S. 22:628 then provided:
“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance.”
In determining the applicability of La. R.S. 22:628, the provisions of La.R.S. 22:1406 must be examined more closely. La.R.S. 22:1406 mandates the inclusion of uninsured motorist coverage in any automobile liability policy delivered or issued for delivery in this state. Coverage is required in limits not less than the limits of bodily injury liability provided in the policy unless the insured selects lower limits. It is of no moment that the policy in the instant case provided lower limits since the coverage was read into the policy by the terms of the statute. Since selection of lower limits conflicted with the coverage written into the policy law, such selection was required to be in writing and attached to the policy. The oral waiver of uninsured motorist coverage was therefore invalid as being in contravention of La.R.S. 22:628 notwithstanding the fact that the version of La.R.S. 22:1406 in effect at the time did not contain a writing requirement. (Citations omitted). Clearly, prior to September 9, 1977, the effective date of Act 438 of 1977, any selection of lower limits, to be valid, had to be in writing and attached to the policy. (Emphasis added)

The instant case is strikingly similar. Dr. Horstmann’s past policies contained the uninsured motorist provision with limits of $5,000.00/$10,000.00. Act 438 of 1977 (LSA-R.S. 22:1406) requires uninsured motorist coverage with policy limits equal to that for bodily injury to others, in this case $100,000.00/$300,000.00, unless Dr. Horst-mann selected lower limits. General insurance law requires that agreements that modify coverage must be in writing and made a part of the policy. LSA-R.S. 22:628. Hence, before the uninsured motorist limits could be modified by Dr. Horst-mann to select coverage at less than coverage for bodily injury, that selection had to be made by written agreement. A.I.U. Insurance Co. v. F.J. Roberts, Jr., supra. We therefore conclude the testimony offered by Continental to show a verbal agreement to purchase less uninsured motorist coverage would be immaterial.

On the same issue, during trial Continental alluded to a written selection of lower coverage by Dr. Horstmann in prior years. Dr. Horstmann denied that any existed. Nevertheless, he objected to the introduction of any document not produced by Continental in response to discovery motions, and the objection was sustained. We agree with the trial judge’s ruling; if it existed, it was not admissible because it was not produced in response to Dr. Horst-mann’s discovery request. Further, since it was not proffered, it is not part of the record in this appeal, and Continental has not shown the ruling was erroneous.

Continental next contends the jury abused its discretion when it awarded damages which were excessive compensation to both Dr. and Mrs. Horstmann. The Louisiana Supreme Court has set the appropriate standards for appellate review of a jury award of damages in Reck v. Stevens, 373 So.2d 498 (La. 1979):

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
With regard to appellate review of the much discretion of the trier of fact in the award of general damages, La.C.Civ.P. art. 1934(3), we stated (after exhaustive review of the facts, and reversing the appellate court (on the basis of prior awards) the trier of fact’s award) in Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127, 132 (1967):
“The law is plain and means what it says, and it is the duty of all appellate courts to follow it. Under this rule the amount of damages assessed by the judge or jury should not be disturbed unless the appellate court’s examination of the facts reveals a clear abuse of the discretion vested in the trial court . . . . ”
However, the function of an appellate court is not “to decide what it considers an appropriate award on the basis of the evidence,” (citation omitted) but rather only to review the exercise of the trier of fact’s discretion in the matter.

To determine whether the jury abused its discretion, a brief summation of the facts is essential. The accident occurred on February 11, 1978, when Dr. and Mrs. Horstmann were returning to New Orleans from their farm. Dr. Horstmann was driving when the car developed engine trouble. He had put on his emergency lights and pulled to the far right side of the 1-10 interstate, and he was travelling at a very low rate of speed, half in the right lane of the highway and half on the shoulder, when he was struck by Darwin Drake. The car was hit hard and knocked about a block down the road. Dr. and Mrs. Horstmann were thrown around inside the car so forcefully that they broke the front seat, and both ended up in the back seat of the automobile. The car was demolished.

The record also reveals the individual circumstances of the injuries in the present case. It shows Dr. Horstmann is a dentist who maintained an active practice before the accident, and who enjoyed a variety of robust activities in his leisure time. Because of injuries he sustained in the accident, he was forced to dramatically reduce his practice and curtail leisure activities. Dr. John McLachlan, his treating physician and an orthopedic surgeon, testified that Dr. Horstmann suffered injury to his neck caused by a whiplash motion when the automobile was struck from the rear and to his right knee when it was thrown against the dashboard. Dr. MeLachlan’s expert opinion was based on x-rays and subjective complaints made by Dr. Horstmann. It was his opinion that Dr. Horstmann had injured a pre-existing degenerative bone structure of the knee and that pain would continue indefinitely. Dr. Horstmann testified and described the continuous pain he experiences in his neck and knee, and he further described how his dental practice is limited, his income reduced, and his activities curtailed. This testimony was corroborated by income tax returns and the testimony of his daughter and son-in-law. We conclude, as to Dr. Horstmann, that the record supports the jury’s award for both pain and suffering and loss of income.

The record also shows that after the accident, Mrs. Horstmann was immediately taken to the emergency room at Methodist Hospital, where she was examined by Dr. Robert Fortenberry. He testified that Mrs. Horstmann had a cervical strain and that he had observed muscle spasm and that he believed there was injury to pre-existing degenerative changes in her spine. Shortly thereafter, Dr. McLachlan assumed responsibility for her care and treatment. He testified, and his opinion was the same as the opinion of Dr. Fortenberry: Mrs. Horst-mann suffered a cervical sprain and injured a pre-existing degenerative spinal bone condition. He based his opinion on Mrs. Horst-mann’s complaints of pain in the neck, shoulder blade, thoracic spine, and coccyx and on his observation of muscle spasm. Because of the pre-existing spinal condition, he believed pain would continue indefinitely. Mrs. Horstmann testified and described the pain she experiences as a result of the accident, and she related how her activities are limited because of it. Her testimony was also corroborated by her daughter and son-in-law. We conclude the record also supports the jury’s award to Mrs. Horst-mann for her pain and suffering.

We hold, therefore, that the Trial Judge did not err when he refused to admit testimony and the jury did not award excessive damages.

AFFIRMED.

REASONS FOR JUDGMENT ON APPLICATION FOR REHEARING

Defendant’s petition for a rehearing is denied. We, however, modify the judgment of June 8, 1982, to provide that plaintiffs are entitled to legal interest only from the date of judgment.

Counsel for defendants questioned for the first time in this motion for a rehearing the propriety of the Trial Court’s award of interest from the date of judicial demand, and he now argues that interest is due only from the date of the Trial Court judgment. Although raised at this late date, we have considered this interesting question: In suits by an insured against his insurer for uninsured motorist benefits, does legal interest accrue from the date of filing of suit or from the date of judgment against the insurer? There is a difference of opinion among the Circuit Courts of Appeal as to when legal interest begins to accrue. The Second Circuit holds that legal interest accrues from the date of judicial demand, Powell v. Allstate Insurance Co., 233 So.2d 38 (La.App.2d Cir. 1970), while the Third Circuit holds that legal interest accrues from the date of judgment in the Trial Court, Guidroz v. Tauzin, 413 So.2d 682 (La.App.3rd Cir. 1982). We find the reasoning in Guidroz v. Tauzin more persuasive, and we adopt the rule of the Third Circuit: In suits by an insured against his or her insurer for uninsured motorist benefits, legal interest accrues from the date of judgment of the Trial Court.

The judgment of June 8, 1982, is hereby modified. The judgment of the Trial Court is amended to award plaintiffs interest from the date of judgment in the lower court; otherwise, it is affirmed.

BYRNES, J., concurs in the denial of the rehearing but dissents from the modification of the judgment as it relates to judicial interest.


author: SAVOIE, Judge.

text:
    Hattie M. FRANKLIN v. HOLIDAY RESTAURANT, et al.
    No. 14905.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    On Rehearing Oct. 12, 1982.

      Edwin R. Fleischmann, Jr., New Orleans, for plaintiff and appellant.
    Sylvia Landry Holder, Edward A. Rod-rigue, Jr., New Orleans, for defendants and appellees.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This is an appeal from a denial of worker’s compensation benefits. We reverse.

The appellant, Hattie M. Franklin, was injured on September 13, 1977, when she fell while on the job as a short-order cook at the Holiday Restaurant in Houma, Louisiana. It is undisputed that this work-related accident occurred and that more than two years later, in January of 1980, she had two ruptured spinal discs surgically removed.

The extensive medical evidence in the form of treatment records, doctors’ testimony and depositions introduced on the trial of this case shows that Hattie M. Franklin was under a doctor’s care almost continually between the time of the accident on September 13, 1977, and the time of the surgery on January 15, 1980.

The records show forty visits to the doctor during this period. The longest period between visits was five months, between October 12, 1979 and March 12, 1979. Other than this gap, there are recorded visits almost every month. It is undisputed that Hattie M. Franklin complained of back pain the whole time. There is no evidence of such complaints before the slip and fall in September, 1977.

The issue here is the application vel non of a presumption in favor of the claimant.

This case is strikingly similar to the recent case of Dixon v. Ruby’s Inc., 389 So.2d 73 (La.App. 1st Cir. 1980). There, a short-order cook fell in the kitchen of a restaurant. She was diagnosed next day as having severe lower back strain, but neither the medical report from that time nor the report of the orthopedic surgeon who treated her for six months following the incident made mention of any knee injury. Nearly one year after the accident, she saw another doctor who diagnosed a disabling contraction of the left knee. On these facts, the trial court denied recovery, but this court reversed, applying what we termed the well-settled rule that:

"... disability is presumed to have resulted from an accident if the injured person was in good health before the accident and the symptoms of the disabling condition appear after the accident and manifest themselves continuously af-terwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition.” (Citations omitted)

Here, as there, the proof is clear that the claimant was in good health before the 1977 accident and that the symptoms appeared afterwards. Also, there is a reasonable probability of causal connection in that ruptured spinal discs are frequently caused by falls. As in the Dixon case, our greatest difficulty is with the element of continuous manifestation of the symptoms.

In Dixon, no knee injury was mentioned in the early medical reports and, indeed, the first treating physician reported “good range of motion in all of the joints” and advised his patient to return to work. Nevertheless, we found that her general complaints of pain coupled with a lack of evidence of intervening trauma were enough to support application of the legal presumption.

Here, the complaints of pain were continuous and were focused on the claimant’s back, which is the place where the injury was ultimately proved. We think this makes out a stronger case for application of the presumption than existed in the Dixon case. The overriding fact is that the claimant contended all along that she had severe back pain and a disabling back injury was finally proved.

Consistent with our finding and pursuant to Louisiana jurisprudence (see Gonzales v. Xerox Corporation, 320 So.2d 163, 166 (La. 1975), and Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 709 (La.1980), rehearing denied October 6, 1980, this court awards claimant-appellant the following sums for the stated reasons:

1. $86.66 per week for the period of temporary total disability. L.S.A.R.S. 23:1221(1). The record reflects that claimant-appellant was injured on September 13, 1978, and apparently released to seek employment on October 17, 1980, with an estimated partial permanent disability of 10-15 per cent. Said award shall be reduced by any amount of payment previously made by defendant-appellee to claimant-appellant.
2. $28.62 per week commencing on October 18, 1980, for the statutory period of 100 weeks for the partial permanent disability sustained by claimant-appellant. L.S.A.-R.S. 23:1221(4)(p), L.S.A.-R.S. 23:1202(1), see also Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2nd Cir. 1980) writ denied 385 So.2d 793, and Ventress v. Danel-Ryder, Inc., 225 So.2d 765 (La.App. 3rd Cir. 1969).
3. Unpaid medical bills in the amount of $6,112.90 representing:
Ochsner Clinic 6/1/78 $ 77.50
St. Charles General Hospital 12/21/79 859.85
St. Charles General Hospital 1/22/80 2,518.05
Dr. Adatto to date of trial 2,619.00
St. Charles General Hospital 2/9/80 38.50

For the reasons assigned, the judgment of the trial court is reversed, annulled and set aside; and, accordingly, it is now ordered that there be judgment in favor of claimant and against defendant granting unto claimant compensation at the rate of $86.66 per week from the date of the accident until October 17, 1980, subject to a reduction for benefits previously paid by defendant to claimant.

Further, claimant-appellant is awarded the sum of $28.62 per week for a period of one hundred weeks for partial permanent disability.

Further, the claimant is awarded the sum of $6,112.90 for unpaid medical expenses.

Claimant’s prayer for attorney’s fees and penalties is denied.

Appellee is to pay all costs.

REVERSED AND RENDERED.

ON REHEARING

Plaintiff-appellant and defendant-appel-lee contend this court erred on original hearing as to the quantum of workmen’s compensation benefits awarded. We limit this rehearing to set-off of awards and medical transportation expenses.

On original hearing, we granted temporary total disability benefits to appellant for a period of 161 weeks less 30 weeks previously paid. L.S.A.-R.S. 23:1221(1). Additionally, we awarded the sum of $28.62 per week for a period of 100 weeks for partial permanent disability. L.S.A.-R.S. 23:1221(4)(p). Appellee seeks a credit set-off for temporary total disability benefits paid against partial permanent disability benefits due.

Appellee correctly notes that compensation paid under subdivision (1), (2), or (3) of L.S.A.-R.S. 23:1221 shall be deducted from any compensation allowed under subdivision (4) thereof. Under L.S.A.-R.S. 23:1221(1), appellant’s compensation award of $86.66 per week for temporary total disability exceeds that granted for permanent partial disability. L.S.A.-R.S. 23:1221(4)(p). When the maximum scheduled loss of function is less than the compensation paid under total (temporary or permanent) disability, the plaintiff is not entitled to additional compensation for impairment of a physical function. L.S.A.-R.S. 23:1223; Newell v. United States Fidelity & Guaranty Company, 368 So.2d 1158 (La.App. 3rd Cir. 1979); see also Jacks v. Bannister Pipelines America, et al, 396 So.2d 604 (La.App. 1st Cir. 1981). Therefore, appellant is not entitled to an award for such permanent partial disability benefits.

Appellant asserts we failed to award medical transportation costs. The record clearly indicates appellant is entitled to the sum of $525.00 for this expense.

Accordingly, we amend our original decision to conform with the above two items.

For the reasons assigned, judgment of the trial court is reversed, annulled and set aside. Judgment is ordered in favor of appellant, granting compensation at the rate of $86.66 per week from September 13, 1977 until October 27, 1980, subject to a reduction for benefits previously paid by appellee.

Further, appellant is awarded $6,112.90 for unpaid medical expenses, and $525.00 for medical ■ transportation expenses. Claimant’s prayer for attorney’s fees and penalties is denied.

Appellee is to pay all costs of the original appeal.

Appellant and appellee are to share any costs on rehearing.

REVERSED AND RENDERED.


author: SCHOTT, Judge. PER CURIAM.

text:
    Eugene V. MACON v. Louis COSTA.
    No. 13033.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 1982.
    Rehearing Denied Oct. 22, 1982.

      Mack E. Barham, David A. Marcello, Bar-ham & Churchill, New Orleans, for plaintiff-appellee.
    Thomas W. Tucker, New Orleans, for defendant-appellant.
    Camille F. Gravel, Gravel, Robertson & Brady, Baton Rouge, for Michael H. O’Keefe, President of the Louisiana State Senate, as amicus curiae.
    Before REDMANN, SCHOTT and AUGUSTINE, JJ.
   SCHOTT, Judge.

Plaintiff was appointed to membership on the Board of Commissioners of the Orleans Levee District (the Board) in December, 1979, by Governor Edwin W. Edwards. Defendant was appointed to the same position in October, 1980, by Governor David C. Treen. Upon taking his oath of office defendant attempted to replace plaintiff who instituted these injunction proceedings. From a judgment granting a preliminary injunction in plaintiff’s favor, defendant has appealed. The issue is whether plaintiff’s appointment is for a four year term commencing on the date of his appointment as may follow from LSA-R.S. 38:1233 or whether he is subject to early removal under R.S. 38:281(D), R.S. 42:4, or Art. 4, § 5(1) of the Constitution.

R.S. 38:1233 provides in pertinent part: “The governor shall appoint five persons possessing all the requisites of a qualified elector in the parish, to serve as commissioners of the district, who shall hold the office for a term of four years and until their successors are appointed and qualified. ...”

This Section had its origin in Act 93 of 1890 which established the Board and provided for seven members with four appointed for three years, three for six years, and successors to be appointed for six years. By Act 137 of 1920 this was amended to provide that “immediately upon the passage of this Act” the governor would appoint the seven to serve during the term of the governor subject to provisions for removal for cause." By Act 234 of 1924 the law was again amended to provide that the governor “shall immediately upon the passage of this Act” appoint the seven with four for three years, three for six years and all successors for six years. Finally, by Act 97 of 1928 these laws were amended substantially in their present form to provide that “the governor shall immediately upon the passage of this Act, appoint five persons who shall hold said office for a term of four years and until their successors are appointed and qualified.” The law also provided for ex officio membership by the mayor and a member of the commission council of New Orleans. Section 1233 was not further amended until the passage of Act 523 of 1979, which will be discussed hereafter.

Section 281(D) had its origin in Art. 16, § 1, of the constitution of 1921, subsection B of which provides as follows:

“Notwithstanding any other provision in this constitutuon or of any law to the contrary, every vacancy, whether for death, resignation, expiration of term or for any other cause, occurring on any present or future board of commissioners of any levee district now or hereafter created in this state shall be filled in the manner hereinafter provided.”

The constitution went on to establish a numination system from the legislature for members of levee districts and then provided:

“The terms of any and all members now serving on levee boards shall expire on January 1, 1967, and new commissioners shall be appointed to fill any and all vacancies created by the expiration of their terms in the manner hereinabove provided. All members of the boards of commissioners of levee districts shall have terms concurrent with that of the governor appointing them.”

Subsection C of this article of the constitution provided: “The provisions of this section apply to all boards of commissioners of all levee boards whether created or provided for by this Constitution or by the Legislature.”

This section of the 1921 constitution was continued as a statute by Art. 14, § 16, of the Constitution of 1974 and implemented by Act 99 of 1975. It was then designated § 281(C). By Act 256 of 1977 this law was amended to change the provision that board members serve terms concurrent with that of the governor to read:

“All members of the boards of commissioners of levee districts shall serve at the pleasure of the governor.”

Finally, by Act 314 of 1978 an additional subsection was added to § 281 and the pertinent subsection C was redesignated as subsection D.

Plaintiff was appointed to the Board on February 22, 1974, to succeed Claude W. Duke who resigned on February 21. He was not reappointed until December, 1979, by Governor Edwards. In the meantime § 1233 was amended by Act 523 of 1979 and provided as follows:

“AN ACT
To amend and reenact Section 1233 of Title 33 of the Louisiana Revised Statutes of 1950, relative to the appointment and term of commissioners of the Orleans Levee District, vacancies, and ex officio commissioners, and otherwise to provide with respect thereto.
Be it enacted by the Legislature of Louisiana:
Section I. Section 1233 of Title 38 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted to read as follows:
§ 1233 Appointment and term of commissioners; vacancies; ex officio commissioners:
The governor shall appoint five persons possessing all the requisites of a qualified elector in the parish, to serve as commissioners of the district, who shall hold the office for a term of four years and until their successors are appointed and qualified. In case of vacancy by death, resignation, or inability to act, the vacancy shall be filled by appointment by the governor. The other commissioners shall be ex officio the mayor or an executive employee of the mayor’s office, and one other member of the City Council of New Orleans, designated by the council, forming a board of seven members.
Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or application, and to this end the provisions of this Act are hereby declared severable. Section 3'. All laws or parts of laws in conflict herewith are hereby repealed.”

It is plaintiff’s contention that until § 1233 was reenacted by Act 523 of 1979, it had not been in existence because it had been repealed by Act 99 of 1975, which implemented the constitutional carryover of Art. 16, § 1, of the Constitution of 1921. Plaintiff would have us read this act to mean that the legislature provided for the governor to appoint all seven members of the board so that the two ex officio members were eliminated.

We disagree with that contention. As it was then designated § 281(C) was intended to do no more than place in the statutes the provisions of Art. 16, § 1, of the Constitution of 1921. The constitutional and statutory provisions do not purport to eliminate the ex officio members provided for in § 1233 but have to do only with the appointed members of the board.

Thus, it is clear that when Macon was appointed to the board in February, 1974, his appointment was for the unexpired term of Claude W. Duke to expire when the governor’s term expired in April, 1976, in accordance with Art. 16, § 1, of the Constitution of 1921. His appointment continued by virtue of § 1233’s provision, not affected by the constitution, that an appointee would also serve until his successor was appointed and qualified. By December, 1979, § 281(C) had again been amended to remove the provision for the term to be concurrent with that of the governor and replaced by the provision that the board member would serve at the pleasure of the governor, so that plaintiff continued in office not by virtue of his original appointment as held over and extended but now at the pleasure of the governor.

Plaintiff’s contention that Act 523 of 1979, amending and reenacting Section 1233 had the effect of recreating a dead act is also contradicted by the wording of the act itself. The legislature proclaimed that this was an Act “to amend and reenact Section 1233, etc.” Section 1 of the Act provided that Section 1233 “is hereby amended and reenacted, etc.” This language surely connotes that the legislature was not laboring under the impression that there was no Section 1233 in existence at that time.

Finally, notwithstanding the title of the Act which proclaimed a reenactment of Section 1233, the only change made in the Act was to provide that the ex officio membership on the board of the mayor of the City of New Orleans could be filled by an executive employee of the mayor’s office. In all other respects this Act is exactly as it existed prior to 1979, rebutting the contention that it was the legislature’s intent to start new terms of four years for every member of the board.

We reconcile these two sections to mean that the governor shall appoint board members for terms of four years under R.S. 38:1233 but that members serve at the governor’s pleasure in any case under R.S. 38:281(D). Thus, plaintiff served at the pleasure of Governor Treen until he appointed defendant to the position.

We recognize that the provision for service at the governor’s pleasure may be vulnerable to an attack based on the present constitution, Art. 4, § 5(I)’s prohibition against the governor’s removal of a person appointed for a term fixed by law. It may be argued that since the present Constitution carried over as a statute the provision establishing the term as concurrent with that of the governor, the legislature could not subsequently modify the term to expand the governor’s removal power beyond that which Art. 4, § 5(1) allows. But we need not address this issue in the present case because even if the argument is valid plaintiff’s term expired in April, 1980, and was held over only until defendant’s appointment in October.

Accordingly, the judgment appealed from is reversed and set aside, the preliminary injunction is dissolved and plaintiff’s rule is dismissed.

REVERSED AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Acts 1979 No. 523 bears the title “An Act to amend and re-enact” R.S. 38:1233. Because of the title-body clause, La. Const.1974 Art. 3 § 15(A) requiring an Act to have a title indicative of the purpose that the body of the Act seeks to accomplish, the only constitutional purpose that that 1979 Act can have is to amend (and re-enact) an existing § 1233. The Act must be given an interpretation consistent with its title rather than “construed into unconstitutionality,” State v. Banks, 106 La. 480, 31 So. 53 (1901).

If, as plaintiff contends, § 1233 was earlier repealed (by Acts 1975 No. 99), then the declared legislative purpose of Act 523 “to amend and re-enact” § 1233 would be impossible, and Act 523 would have no effect whatsoever.

If, on the other hand, § 1233 was not earlier repealed, then the only effect of Act 523 was to permit an ex-officio commissioner, the Mayor of New Orleans, to name a proxy. The four-year terms would have been the same ones previously provided by § 1233, ending with the Governor’s four-year term.

Under either situation, Act 523 as “An Act to amend and reenact” § 1233 cannot support plaintiff’s position.

Plaintiff’s real position is that this court should give effect to Act 523 as if its title were “An Act to add a new § 1233 to Title 38,” rather than as “An Act to amend and re-enact” R.S. 38:1233. That position is constitutionally insufferable. The title-body clause, La. Const. Art. 3, § 15(A), expressly prohibits giving the body of Act 523 an effect so contradictory to its title.

REHEARING DENIED.


author: CARTER, Judge.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, et al. v. SAFECO INSURANCE COMPANY OF AMERICA, et al.
    No. 14845.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1982.

      Daniel J, Dziuba, Baton Rouge, for plaintiffs-appellees Hugh C. Finklea and Safeco Ins. Co.
    George B. Richard, Marrero, for defendants-appellants Anthony R. Randazzo and Ronnie Randazzo.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge.

This is a suit for damages in tort resulting from a fire negligently set by two minor children which destroyed a dwelling under construction. Suit was originally filed by Durwood Gully Contractor, Inc. (hereinafter referred to as Gully), the contractor for the dwelling and its insurer, United States Fidelity and Guaranty Company (hereinafter referred to as U.S.F. & G.), against Hugh C. Finklea, the father of one of the minors, and his insurer, Safeco Insurance Company of America (hereinafter referred to as Safeco). Safeco and Finklea settled the claim against them and U.S.F. & G. and Gully executed a release and assignment agreement in favor of Safe-co and Finklea. The original petition was amended to add Anthony R. Randazzo, the father of the second minor, as a party defendant and Safeco and Finklea filed a third party demand against him for contribution. Randazzo filed peremptory exceptions pleading prescription which were overruled by the trial court. After the trial, judgment was rendered in favor of U.S.F. & G. on the original petition against Randazzo for $2,576.81 and judgment was rendered on the third party demand by Safeco and Finklea against Randazzo for $6,793.40. This devolutive appeal followed.

I. FACTS

On November 22, 1976, Lance Finklea, the minor child of Hugh C. Finklea, and Ronnie Randazzo, the minor child of Anthony R. Randazzo, entered a partially constructed dwelling located at 10533 Land-bury Avenue, Parish of East Baton Rouge, Louisiana. The two minors started a fire in a storeroom or utility room in order to keep warm. Apparently, this makeshift fire furnished more smoke than heat and failed to satisfy the needs of the youths and they decided to abandon the venture. Before departing the premises, they attempted to extinguish the fire by urinating on it and then stamping it out with their feet. Each minor then went his separate way and returned home. The fire subsequently consumed the structure.

Suit was originally filed on October 14, 1977, by U.S.F. & G., as Gully’s insurer, for $18,740.43 which represented the amounts it was called upon to pay under its policy of insurance for damages to the dwelling and by Gully for $100.00 which represented the deductible portion of the damages not covered by the policy. This suit was against Hugh C. Finklea, in his capacity as father of the minor, Lance Finklea, and his insurer, Safeco. On November 27, 1977, Safeco and Finklea filed their answer to the original petition.

On December 9, 1977, U.S.F. & G. and Gully settled their claims against Safeco and Finklea for $13,586.81 and executed an assignment and subrogation agreement in their favor. (See Appendix No. 1 attached hereto).

On February 13, 1980, Safeco and Finklea filed a third party petition against Thom S. Randazzo as father of the minor, Randy Randazzo, for contribution. On March 15, 1980, Anthony R. Randazzo appeared through counsel and filed a peremptory exception of prescription to the third party demand. On May 28,1980, U.S.F. & G. and Gully filed a supplemental and amending petition adding Anthony R. Randazzo, the father of Ronnie Randazzo, as a party defendant. Also on May 28, 1980, the trial court on joint motion of U.S.F. & G., Gully, Safeco and Finklea “ordered that movers, Safeco Insurance Company of America and Hugh C. Finklea, be submitted as parties plaintiffs in the place of United States Fidelity and Guaranty Company and Durwood Gully Contractor, Inc.” (See Appendix No. 2 attached hereto). On June 17, 1980, Anthony R. Randazzo filed a peremptory exception of prescription to the supplemental and amending petition. The trial court overruled both exceptions of prescription by judgment signed on October 10,1980. Ran-dazzo filed his answer on December 11, 1980, and the trial of this matter was held and completed on May 8, 1981. On June 1, 1981, judgment was rendered in favor of U.S.F. & G. and against Randazzo on the main demand for $5,153.62 and in favor of Safeco and Finklea on the third party demand for $13,586.81. On June 9, 1981, Randazzo filed a motion for a new trial on the grounds that the judgment was contrary to law because Randazzo was cast for the total amount of the claim, but as a joint tortfeasor could only be legally responsible for one-half of the claim. The new trial was granted and each of the original judgment awards were reduced by one-half in an amended judgment rendered on July 24, 1981.

II. THE ASSIGNMENT AND/OR SUBROGATION

The instrument dated December 9, 1977, provides that U.S.F. & G. and Gully “. . . hereby assigns, transfers, subrogates, and sets over to SAFECO INSURANCE COMPANY OF AMERICA AND HUGH C. FINKLEA, any and all claims and causes of action of whatsoever kind and nature which the undersigned now has or may hereafter have to recover against any person or persons as the result of a fire on November 22, 1976 at 10533 Landbury Avenue, Parish of East Baton Rouge, State of Louisiana, to the extent of the payment above made.” In that same agreement, U.S.F. & G. and Gully agreed to “. . . release and discharge Safeco Insurance Company of America and Hugh C. Finklea from any and all liability whatsoever under its policy No. HO 48 92 94,- issued to Hugh C. Finklea.” In Paragraph 2 of the motion and order to substitute parties plaintiff filed on May 28, 1980, U.S.F. & G., Gully, Safeco and Finklea acknowledged that ‘‘United States Fidelity and Guaranty Company and Durwood Gully Contractor, Inc., in exchange for the payment of $18,586.81 has released Safeco Insurance Company of America and Hugh C. Finklea from any liability whatsoever arising out of the fire on November 22, 1976 described above.” Safeco, Hugh Finklea, Lance Finklea, Anthony Randazzo and Ronnie Randazzo are debtors in solido for the damages caused by the fire in the instant case. La.C.C. arts. 2318, 2824, 2091 and 2092; Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982); Sampay v. Morton Salt Company, 895 So.2d 326 (La.1981); Foster v. Hampton, 381 So.2d 789 (La.1980); Kern v. Travelers Insurance Company, 407 So.2d 2 (La. App. 4th Cir. 1981). The release of one solidary obligor without an express reservation of the right to proceed against other solidary obligors releases all other obligors. La.C.C. art. 2203; Hemphill v. Strain, 371 So.2d 1179 (La.App. 1st Cir. 1979); Clay v, State Farm Mutual Automobile Insurance Company, 330 So.2d 380 (La.App. 3rd Cir. 1976); Written v. Travelers Indemnity Company, 304 So.2d 715 (La.App. 3rd Cir. 1974). When U.S.F. & G. and Gully released Safeco and Finklea, a reservation of their rights to proceed against Randazzo and/or his minor son was not included and thus they lost their right to proceed against them. The attempted subrogation and/or assignment by U.S.F. & G. and Gully in favor of Finklea and Safeco was without legal effect because the rights acquired by a subrogee and/or assignee can be no more (and no less) than the rights of the original parties. See Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979) (footnote 5); Barnes v. Fireman’s Fund Insurance Company, 399 So.2d 1318 (La.App. 4th Cir. 1981); Northern Assurance Company of America v. Waguespack, 304 So.2d 865 (La.App. 4th Cir. 1974).

III. PRESCRIPTION ON THE CONTRIBUTION CLAIM

The timely filing of suit against Safeco and Finklea on October 14, 1977 (within one year from November 22, 1976), interrupted prescription on the claims against those who were solidarily obligated with them for the damages, namely Lance Finklea, Anthony Randazzo and Ronnie Randazzo. La.R.S. 9:6801; La.C.C. art. 2097. Prescription on a claim for contribution does not commence to run until the right of contribution vests when the party seeking contribution is required to pay the common debt. La.C.G. arts. 2103 and 2104; La.G.C.F. arts. 1111-1116; Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979). When U.S.F. & G. and Gully settled their claims against Safeco and Finklea for $18,-686.81 and Safeco and Finklea paid that amount and were released from further liability in writing, a compromise of the claim resulted. La.C.C. art. 3071. This compromise had the authority of a judgment between the parties. La.C.C. art. 3078; Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La.1976); Ditch v. Finkelstein, 399 So.2d 1216 (La.App. 1st Cir. 1981). Safeco and Finklea became legally obligated to pay, and in fact did pay, the agreed upon portion of the common debt. At this time, December 9,1977, the right of contribution vested with Safeco and Finklea and the prescriptive period commenced to run. Tort actions prescribe in one year, and actions for contribution based on a defendant being solidarily liable for tort must likewise prescribe in one year. La.C.C. art. 3536. The action for contribution filed by Safeco and Finklea against Randazzo on February 13, 1980, more than one year after the compromise agreement of December 9, 1977, is prescribed. The trial court was in error when it failed to sustain the peremptory exception pleading prescription.

The fact that Safeco and Finklea were not dismissed as party defendants in the original petition is not determinative. The compromise left the original petition without viable defendants because it had the same effect as a judgment which had been satisfied. To hold otherwise would be to allow solidary obligors who compromise claims to wait indeterminate periods before seeking contribution. This would allow the party seeking contribution to manipulate the time when he would assert his claim to the possible prejudice of a potential contributor.

IV. CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the claims against Anthony R. Randazzo are dismissed. The appellees are cast for all costs.

REVERSED AND DISMISSED.

In consideration of the payment of Thirteen Thousand Five Hundred Eighty Six and 81/100 ($13,586.81) Dollars, the receipt of which is hereby acknowledged, the undersigned hereby assigns, transfers, subrogates, and sets over to SAFECO INSURANCE COMPANY OF AMERICA AND HUGH C. FINKLEA, any and all claims and causes of action of whatsoever kind and nature which the undersigned now has or may hereafter have to recover against any person or persons as the result of a fire on November 22, 1976 at 10533 Landbury Avenue, Parish of East Baton Rouge, State of Louisiana, to the extent of the payment above made. The undersigned agrees that Safeco Insurance Company of America and Hugh C. Finklea may enforce the same in such manner as shall be necessary or appropriate for the use and benefit of Safeco Insurance Company of America an Hugh C. Finklea, either in its own name or in the name of the undersigned, and the undersigned will furnish such

papers, information, or evidence as shall be within the undersigned's possession or control for the purpose of enforcing such claim, demand, or cause of action.

As further consideration, the undersigned does hereby release and discharge Safeco Insurance Company of America and Hugh C. Finklea from any and all liability whatsoever under its policy No. HO 48 92 94, issued to Hugh C, Finklea.

The undersigned agrees that no release or settlement or any such claim, demand or cause of action has been made, or wi‘ll be made without the express written consent of Safeco Insurance Company of America and Hugh C. Finklea.

"APPENDIX NO. 2"

MOTION TO BE SUBSTITUTED AS PARTY PLAINTIFFS

On motion of United States Fidelity and Guaranty Company and Durwood Gully Contractor, Inc., plaintiff herein and Safeco Insurance Company of America and Hugh C. Finklea, defendants herein through undersigned counsel, and on suggestion of the Court that:

1.

United States Fidelity and Guaranty Company and Durwood Gully Contractor, Inc. entered into a written contract dated December 9, 1979 with Safeco Insurance Company of America and Hugh C. Finklea wherein United States Fidelity and Guaranty Company and Dúrwood Gully Contractor, Inc. assigned, transferred and subrogated over to Safeco Insurance Company of America and Hugh C. Finklea all claims and causes of action whatsovever kind and nature which the said United States Fidelity and Guaranty Company and Durwood Gully Contractor, Inc. had or may hereafter have to recover against any person or persons as a result of a fire on November 22, 1976 at 10533 Landbury Avenue to the extent of $13,586.81.

2.

United States Fidelity and Guaranty Company.and Durwood Gully Contractor, Inc., in exchange for the payment of $13,586.81 has released Safeco Insurance Company of America and Hugh C. Finklea from any liability whatsoever arising out of the fire on November 22, 1976 described above.

3.

United States Fidelity and Guaranty Company and Durwood Gully Contractor, Inc. prays that Safeco Insurance Company of America and Hugh C. Finklea be substituted as parties plaintiff herein.

4.

Safeco Insurance Company of America desire to be substituted as parties plaintiff herein.

WHEREFORE, United States Fidelity and Guaranty Company, Durwood Gully Contractor, Inc., Safeco Insurance Company of America and Hugh C. Finklea pray that Safeco Insurance Company of America and Huch C. Finklea be substituted as parties plaintiffs herein.

By Attorneys:

DALE, OWEN, RICHARDSON, TAYLOR & MATHEWS

CERTIFICATE

I HEREBY CERTIFY that a copy of the above and foregoing Motion has been mailed, postage prepaid, this date to Mr. George B. Richard,

Considering the above and foregoing Motion now therefore, be i%- hereby ordered that movers, Safeco Insurance Company of 'America and Hugh C. Finklea be substituted as parties plaintiff in the place of United States Fidelity and Guaranty Company and Durwood Gully Contractor, Inc.

      . The original petition indicated that the whereabouts of Ronnie Randazzo and his parents were unknown.

      . This is a total judgment award of $18,740.43, the amount originally sought by U.S.F. & G. No judgment was rendered on the $100.00 deductible claim by Gully.

      . In addition, judgment could not be rendered in favor of U.S.F. & G. in June of 1981 because it was not a party plaintiff to the suit at that time. Safeco and Finklea were substituted as parties plaintiff in U.S.F. & G.’s place by the court order dated June 2, 1980. (See Appendix No. 2).