text:
    Rudolf J. HEHN, Appellant, v. CUMIS INSURANCE SOCIETY, INC., etc., Appellee.
    No. 79-1401.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.
    Stuart Kocha and Larry Klein, West Palm Beach, for appellant.
    John J. Considine, III, Palm Beach, and Dewey H. Varner, Jr., Palm Springs, for appellee.
   PER CURIAM.

AFFIRMED on authority of Gilligan v. Liberty Mutual Insurance Company, 265 So.2d 543 (Fla.4th DCA 1972).

MOORE and GLICKSTEIN, JJ., and UP-CHURCH, JOHN J., IV, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard J. MEYERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-349.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.
    Richard J. Meyers in pro. per.
    No appearance for appellee.
   PER CURIAM.

This appeal is hereby dismissed sua sponte.

The appellant entered a plea of nolo con-tendere in the trial court without any reservation of the right to appeal.

DISMISSED.

■ DOWNEY, C. J., and LETTS and GLICKSTEIN, JJ., concur.


author: LETTS, Judge.

text:
    John BIANCO, Appellant, v. PALM BEACH NEWSPAPERS, INC., Appellee.
    No. 79-190.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.

      Paula S. Gold of Baskin & Sears, Boca Raton, for appellant.
    Richard W. Glenn of Albury, Webb, Park & Glenn, West Palm Beach, for appellee.
   LETTS, Judge.

This appeal arises from a dismissal with prejudice of a libel suit filed by a prominent Palm Beach County citizen against a newspaper. We affirm.

The original dismissal of this complaint was not with prejudice and it could have been amended. Instead, the attorney for the appellant' elected to stand on the complaint as written leaving us no choice but to consider it as presented to the trial court.

There can be no doubt that the language used in the newspaper editorial was defamatory, for it accused the appellant of “amoral manipulation” and attempts to “shakedown” elected officials. Had the complaint alleged only that the appellant was a private • citizen, it would have been error to dismiss it, notwithstanding our personal knowledge outside of the record that the appellant is, in fact, a prominent citizen and a public figure of considerable note. However, the complaint by its own language and attachments, puts the appellant very much in the public eye by describing him as a “civic minded and political figure.” Further, attached to it is the offending editorial which describes the appellant as President of the Sunshine Democratic Club, an organization engaged in helping local politicians to get elected. Also attached is the appellant’s own considerable list of public service and public works engaged in by the organization of which he is the President.

We, therefore, hold that it is established within the four corners of the complaint, that the appellant is a public figure which in turn requires the result to be controlled by the United States Supreme Court case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

In Gertz, the court extended the New York Times test to cover those persons who are “. . . involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society” and specifically went on to hold that such a public figure cannot recover damages for defamatory falsehood unless he proves that the falsehood was uttered with “actual malice.” The court then defined actual malice as requiring actual knowledge that the statement is false or with reckless disregard of whether it is true or false. Since such actual knowledge or reckless disregard must be proved, it follows that one or both must also be specifically alleged. Examination of the complaint before us reveals no such allegations except for the lone statement that the publication was “malicious.” This is clearly insufficient under the law of Gertz which mandates our adherence.

’ AFFIRMED.

GLICKSTEIN and HURLEY, JJ., concur.

      . New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).


author: COBB, Judge.

text:
    Howard A. PACHA, Relator, v. Honorable Dominick J. SALFI, Circuit Judge, Seminole County, Florida; Carl Gjelhaug and Evelyn Gjelhaug, his Wife; and Albert Byrnes and Sandra Byrnes, his Wife, Respondents.
    No. 79-3.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    Ned N. Julian, Jr., of Stenstrom, Davis, McIntosh & Julian, Sanford, for relator.
    Jim Smith, Atty. Gen., and Thomas A. Beenck, Asst. Atty. Gen., Tallahassee, for respondent Salfi.
    Kenneth R. Marchman of Hunter, Pattil-lo, Marchman, McGuire & Mapp, Winter Park, for respondents Gjelhaug.
    No appearance for respondents Byrnes.
   COBB, Judge.

The petitioner, Howard A. Pacha, seeks a writ from this Court prohibiting the respondent, a circuit judge, from entertaining further proceedings upon a petition filed in the lower court seeking to establish grandparent visitation rights.

The salient facts herein are that the petitioner married one Carolyn Gjelhaug in 1970, at which time Carolyn was the mother and custodian of an illegitimate two-year old child, Alisa. The three lived together as a family unit, although Pacha did not adopt Alisa, until Carolyn was killed in an automobile accident in 1977. Pacha then commenced adoption proceedings and a competing petition was filed by the child’s maternal aunt and her husband, Sandra and Albert Byrnes. After protracted litigation, the trial court ruled in favor of Pacha and entered a judgment of adoption on April 4, 1979. That judgment is now on an appeal taken by the Byrneses.

On April 5, 1979, the day after entry of the judgment of adoption, the maternal grandparents of Alisa, Carl and Evelyn Gjelhaug, served a petition for leave to intervene in the cause to establish their rights of visitation with Alisa pursuant to Section 68.08, Florida Statutes (1978). The trial court took this petition under advisement, finally granting it by an order entered June 4, 1979. Immediately, the Gjel-haugs filed and served a “petition to establish grandparent visitation rights.” Prior to any ruling on this petition, Pacha filed his petition for prohibition against the trial court, joining the intervenors (the Gjel-haugs) and the appellants (the Byrneses) as respondent parties.

The petitioner’s argument is simple: Section 63.172(b), Florida Statutes (1978) provides, in part, that the legal fact of'a judgment of adoption “terminates all legal relationships between the adopted person (Alisa Gjelhaug Pacha) and his relatives . so that the adopted person thereafter is a stranger to his former relatives for all purposes . . . ” Since Carl and Evelyn Gjelhaug ceased to be the grandparents of Alisa on April 4, 1979, with the entry of the final judgment of adoption in favor of her step-father, the trial court has no authority to entertain a petition for visitation by legal strangers, hence should be prohibited from even entertaining this petition, after erroneously having allowed their intervention in the cause for the purpose of asserting non-existent visitation privileges.

The respondent circuit judge contends that, since the circuit court of Seminole County is vested with jurisdiction over child custody matters, it is his province to make the initial determination concerning the interplay between Sections 68.08 and 63.-172(b), Florida Statutes, and if his determination should be erroneous', then petitioner’s remedy is appeal, not prohibition.

The respondents Gjelhaug argue that insofar as the two statutes are irreconcilable, that the last expression of the legislative will prevails, citing Askew v. Schuster, 331 So.2d 297 (Fla.1976). Since Section 68.08, Florida Statutes, was enacted subsequent to the quoted language of Section 63.172(b), Florida Statutes, the later enactment pertaining to grandparent visitation privilege should supersede the earlier adoption statute.

In the petitioner’s reply brief directed to the argument of respondent Salfi, it is asserted that the trial court’s order of intervention is not subject to interlocutory appellate review. We disagree. See Fla.R. App.P. 9.130(a)(4). The order granting intervention is a non-final order entered after final order on an authorized motion. Hence, the method prescribed by that rule afforded the petitioner Pacha an adequate and complete remedy for review of the order granting intervention entered on June 4, 1979. The petitioner failed to appeal that order \yithin the prescribed period of thirty days. The petition for writ of prohibition was not filed until August 7, 1979, and was therefore too late for us to consider as a proper appeal sought by an improper remedy pursuant to Fla.R.App.P. 9.040(c). If we entertain this petition for prohibition, we are extending to the petitioner the privilege of an untimely appeal.

A writ of prohibition is an extraordinary writ, extremely narrow in scope, that is to be employed only in emergency situations where the petitioner has no other adequate remedy. English v. McCrary, 348 So.2d 293 (Fla.1977); Public Employees Relations Commission v. District School Board, 374 So.2d 1005 (Fla.2d DCA 1979). It cannot be allowed to usurp the function of an appeal. Curtis v. Albritton, 101 Fla. 853, 132 So. 677 (1931). The petitioner had an adequate remedy in regard to the order granting intervention; he has another in the event the trial court grants visitation privileges to the Gjelhaugs.

The petition for writ of prohibition is denied.

ORFINGER and UPCHURCH, JJ., concur.

      . Visitation rights; grandparents of minor child. — Any court of this state which is competent to decide child custody matters shall have jurisdiction to award the grandparents of a minor child or children upon the death of or desertion by one of the minor child’s parents if it is deemed by the court to be in the minor child’s best interest. Section 68.08, Florida Statutes (1978).


text:
    Elizabeth E. MENZ, Appellant, v. In re the ESTATE OF Clifford M. MENZ, Deceased, Appellee.
    No. PP-295.
    District Court of Appeal of Florida, First District.
    March 27, 1980.
    Theodore R. Bowers, Panama City, for appellant.
    William E. Harris, Panama City, for ap-pellee.
   PER CURIAM.

The Order Determining Elective Share is hereby affirmed, except for its failure to award an attorney’s fee to the widow. The personal representative had a duty to file a petition for and to pay the elective share in the case at bar. Rule 5.360, Rules of Probate and Guardianship (1979). The failure to do so necessitated the employment of counsel by the widow, and the attorney’s efforts on the widow’s behalf resulted in a change in the distribution of the will. See In Re Estate of Freedman, 340 So.2d 1275 (Fla. 3d DCA 1977).

Affirmed in part, reversed in part.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    ORLANDO UTILITIES COMMISSION and Underwriters Adjusting Company, Appellants, v. Gregory J. CONNELL, Appellee.
    No. PP-392.
    District Court of Appeal of Florida, First District.
    March 27, 1980.
    B. C. Pyle, of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265. (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Erma G. GIBSON, Appellant, v. METROPOLITAN LIFE INS. CO., Appellee.
    No. PP-157.
    District Court of Appeal of Florida, First District.
    March 27, 1980.
    James F. McKenzie, of Myrick & McKenzie, Pensacola, for appellant.

      Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   ROBERT P. SMITH, Jr., Judge.

On plaintiff’s appeal from an adverse judgment entered on a jury verdict against appellant’s claim for disability insurance benefits, we find no error in the trial court permitting a physician to express an opinion concerning the extent of appellant’s ability, despite a knee injury and some pain, to seek work in sedentary employment; no error in denying appellant’s motions for directed verdict and for new trial, there being credibility issues for the-jury; and no error in permitting cross-examination of appellant concerning her rehabilitation efforts, that being pertinent to the issue of whether she was permanently and totally disabled, as claimed. The trial court perhaps unduly restricted appellant’s redirect interrogation of her expert vocational counsellor concerning the job market in appellant’s small hometown, but the facts sought to be elicited were not proffered; moreover, the ruling is not shown to be harmful error in the context of the entire interrogation.

AFFIRMED.

BOOTH and SHAW, JJ., concur.


author:
BLANCHE, Justice. MARCUS, Justice DENNIS, Justice.
     BLANCHE,’Justice

text:
    Mr. and Mrs. Ernest FLOWERS v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    No. 64196.
    Supreme Court of Louisiana.
    Sept. 4, 1979.
    On Rehearing March 3, 1980.
    Rehearing Denied April 7, 1980.
    Dissenting Opinion April 9, 1980.

      Frederick P. Heisler, Heisler, Wysocki & DeLaup, New Orleans, for plaintiff s-applicants.
    Peter A. Feringa, Jr., James A. Babst, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendants-respondents.
   BLANCHE, Justice.

The principal issue is whether the claim for plaintiff’s personal injuries has prescribed.

On January 11,1976, plaintiff, Mrs. Flowers, was injured when the defendant’s insured struck the Flowers family vehicle. Mr. Leon A. Aucoin, also made a defendant, was a claims adjuster for defendant United States Fidelity & Guaranty Company, and entered into negotiations with Mr. and Mrs. Flowers with regard to the settlement of their claims arising out of the accident. Concerning Mrs. Flowers’ claim for personal injuries, Aucoin requested that she obtain final medical reports so that they could reach an agreement as to the amount to be paid, and further indicated that he did not want to make an appointment at his office until she had the reports to bring with her. With regard to Mr. Flowers’ claim as head and master of the community, United States Fidelity & Guaranty Co. paid him for the damages to the family automobile and all but $175 of the medical expenses. Negotiations for payment of these amounts extended for over one year.

Finally, on January 14, Mrs. Flowers, then in possession of all medical reports, telephoned Aucoin in order to make an appointment to discuss the final, terms of the settlement. As one may guess, this little narrative concludes with Aucoin telling Mrs. Flowers that she was too late, and that her claim had prescribed.

Mrs. Flowers then contacted a lawyer and filed suit. The suit was met with a peremptory exception of prescription insofar as it asserted a claim on the underlying automobile accident; a peremptory exception of no cause of action insofar as plaintiffs’ claim purported to assert a claim against defendants in tort arising out of their conduct of settlement negotiations; and, a motion for summary judgment as to plaintiffs’ claim for damages arising out of breach of contract. The trial judge ruled in defendant’s favor on all counts, and dismissed plaintiffs’ suit. The Fourth Circuit Court of Appeal affirmed. We reverse, finding that prescription was interrupted by the acknowledgment of defendant’s representative Au-coin that he would settle with Mrs. Flowers as soon as all of her medical reports were available.

Civil Code Article 3520 provides as follows:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

On its face, all that is required is a simple acknowledgment by the party who owes the debt; neither does the Code require that the acknowledgment be in any particular form; nor does it require that anything beyond the “right” of the obligee be recognized by the acknowledgment of the obli-gor.

The Court of Appeal relied on the case of Tassin v. Allstate Ins. Co., 310 So.2d 680, La.App. 4th Cir., Writ Ref., 313 So.2d 836 (La.1975), which we observe is indistinguishable in principle from the present case. In Tassin, the trial judge accepted the testimony of the attorney representing the plaintiff and who was attempting to negotiate a settlement with defendant Allstate’s representative, that it was not necessary for him to file suit, and that the case would definitely be settled as soon as the medical reports were assembled. The decision reports that the claim adjuster asked the attorney to “hold out” in addition to leading him to believe that the claim would be amicably settled. Tassin, supra, at 686. The only distinguishable difference between this case and the Tassin case is that Mrs. Flowers did not have a lawyer and consequently, Aucoin’s agreement was directly with plaintiff to settle when all of the medical was assembled. The crucial finding in Tassin of this issue is as follows:

“At no time did plaintiffs and defendants ever arrive at the amount of the settlement nor was the amount even discussed since Allstate’s personnel were unwilling to evaluate the claim until such time as the medical reports were available.
“We have concluded that this article of the Civil Code has reference to those situations where there is an acknowledgment of a note or an account where the amount of the claim is liquidated and not to be negotiated as in the instant case.”

The “right” which resided with Mrs. Flowers was to be compensated for her injuries. The acknowledgment of that right was unquestionably recognized when defendant’s agent made it clear to her that all of the medical reports must be assembled and made available before an amount could be determined.

Despite the holding in Tassin, supra, the acknowledgment need not have been an amount certain. Once recognized, there would be no prohibition for the parties to have agreed that the exact amount could be determined after a certain condition or event had been complied with (in this case, the furnishing of the medical reports).

We therefore determine that a debtor may acknowledge owing a debt without knowing the exact amount, and accordingly, overrule Tassin v. Allstate Ins. Co., 310 So.2d 680 (1975), holding to the contrary.

Having decided that plaintiffs’ claim on the underlying accident has not prescribed, it is unnecessary to decide the other issues raised by plaintiffs on this appeal.

For the above reasons, we reverse the decision of the Court of Appeal and remand the case to the District Court for further proceedings in accordance with law.

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I disagree with the finding of the majority that prescription was interrupted by the acknowledgement of defendant’s representative Aucoin that he would settle with Mrs. Flowers as soon as all of her medical reports were available. To constitute an ac-knowledgement, the actions of the defendant must clearly and specifically indicate that the defendant accepts liability. See La.Civil Code art. 3520. Such was not the case here. I agree with the majority in overruling Tassin v. Allstate Ins. Co., 310 So.2d 680 (La.App. 4th Cir.), writ refused, 313 So.2d 836 (La.1975), to the extent that Tassin held .that unliquidated debts could not be acknowledged. Accordingly, I respectfully dissent.

ON REHEARING

DENNIS, Justice.

On rehearing we uphold the basic rule of law stated in our original opinion but resolve the case differently, primarily due to a corrected factual finding. We continue to hold that prescription of an unliquidated claim for damages may be interrupted by the tacit acknowledgment of the debtor. After reconsidering the evidence, however, we find that the insurance company’s adjuster did not tacitly acknowledge the wife’s tort claim by either his offer to negotiate settlement or his payment of medical expenses. Although prescription of the claim for medical expenses by the husband as head of the community was interrupted, the wife’s claim for damages prescribed.

Nora Flowers sustained injuries in an automobile accident with the defendant insurance company’s insured on January 11, 1976. Over one year following the accident, on February 3, 1977, she and her husband filed suit against defendant, praying for damages because of her bodily injuries and medical expenses. After a hearing, the trial court sustained the defendant’s exception of prescription. The court of appeal affirmed, and we granted certiorari.

The plaintiffs argue that their lower courts suits were timely filed because prescription was interrupted by several events. The evidence reflects that in January or February, 1976, the defendants’ insurer paid Mr. Flowers for the damages to the family automobile. By April or May, 1976 the defendant insurer paid for most of Nora Flowers’ medical expenses resulting from the accident. On two occasions Mrs. Flowers discussed her claim for damages with defendants’ adjuster. She first telephoned him in April or May, 1976 to set up a meeting, but he told her it would be pointless to meet until she had all of her medical reports. Shortly after being released by her doctors on November 14, 1976, Mrs. Flowers again requested an appointment. But the adjuster, as before, told her that she would need to obtain reports from her doctors. Finally, after she had received the reports Mrs. Flowers called the adjuster on January 14, 1977, but was told that her claim had prescribed.

We find from the evidence that the insurance company, which paid Mr. Flowers for all but $175 of Mrs. Flowers’ medical expenses intended to acknowledge its indebtedness for all of these expenses. There is no evidence that the company sought merely to compromise this claim. Contrary to our finding on original hearing, however, the evidence does not disclose that the insurance company ever admitted that it owed Mrs. Flowers for her personal injuries. It is true that its adjuster expressed a willingness to discuss her claims and to try to reach a compromise with her. But his statements and actions did not manifest an intention to admit the company’s indebtedness to her.

The questions presented, therefore, are (1) whether liberative prescription of an action for delictual damages may be interrupted tacitly by the actions of the debtor, and, if so, (2) whether the company’s acknowledgment of its indebtedness for medical expenses to Mr. Flowers interrupted prescription of Mrs. Flowers’ action for damages due to her personal injuries.

1. Acknowledgment of Delictual Responsibility

Prescription of a right to damages for personal injuries or medical expenses arising from an offense or quasi-offense may be interrupted by either an express or a tacit acknowledgment of the right by the debtor.

Louisiana Civil Code article 3520 does not require that an acknowledgment be in a particular form. It merely provides:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgement of the right of the person whose title they prescribed.”

Accordingly, this Court has stated that acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; and that it may be implicit or it may be inferred from the facts and circumstances. Lake Providence Equipment Co. v. Tallulah Prod. Cred. Assn., 257 La. 104, 241 So.2d 506 (1970). Upon reconsidering this interpretation of Article 3520, we find that it is solidly based upon doctrinal writings. For example, Baudry-Lacantinerie & Tissier observe:

“Acknowledgment interruptive of prescription results from any act or fact which contains or implies the admission of the existence of the right. It can be express or tacit. When express, it is not subject to any particular form. It can be verbal or in writing.” 5 Civil Law Translations, Baudry-Lacantinerie & Tissier, Prescription, § 529, p. 261.

Also, Aubry and Rau maintain:

“The acknowledgment with the inter-ruptive effect may be express or tacit. No specific form is prescribed for the express acknowledgment; it may be by regular mail or even orally. Tacit acknowledgment results from any action which amounts to an admission of the creditor’s or owner’s right, for instance the payment of a bill as debtor; payment of a portion of the debt, interests or arrears by the debtor or his agent; a request for a postponement of a payment; and, a fortiori, the payment of the amount due by the agent of the debtor. The same would be true of an offer to pay the damages caused by a tort, made by the defendant in the course of the trial, or of an actual act of reparation or indemnity." 2 Civil Law Translations, Aubry & Rau, Property, § 215, No. 304, p. 344 (1966). (Emphasis added)

See also, 2 M. Planiol, Treatise on Civil Law, §§ 665 et seq. (La.St.Law.Inst.Transl. 1959); 5 Civil Law Translations, J. Carbon-nier, Notes on Liberative Prescription, pp. 465-66. Accordingly, we adhere to our view that Article 3520 does not require that an acknowledgment be in any particular form.

Furthermore, prescription of a civil action based on an offense or quasi-offense is governed by the same rule pertaining to interruption by the debtor’s acknowledgment as other civil actions. By its terms Article 3520 is applicable to the prescription of all rights or actions and we find no justification in the civil code for insulating rights based on offenses or quasi-offenses from its effects. Again, we find that this view is consistent with the interpretations of the doctrinal commentators. See 5 Civil Law Translations, Baudry-Lacantinerie & Tissier, Prescription, § 531, p. 264; 2 Civil Law Translations, Aubry & Rau, Property, § 215, No. 304, p. 344; see also Flowers v. U.S. Fidelity & Guaranty Co., 367 So.2d 107 (La.App. 4th Cir. 1979) (Lemmon, J., dissenting).

The view has been expressed in several court of appeal opinions that Article 3520 provides for the interruption of prescription by acknowledgment only on claims to liquidated amounts. Wooden v. Hartford Ins. Co., 335 So.2d 742 (La.App. 2d Cir. 1976); Tassin v. Allstate Ins. Co., 310 So.2d 680 (La.App. 4th Cir. 1975); Kennard v. Yazoo & M.V.R. Co., 190. So. 188 (La.App. 1st Cir. 1939). These holdings are contrary to statutory law which is clear and free from all ambiguity; they are also in conflict with civilian doctrine. These opinions, therefore, cannot be considered as correct interpretations of Civil Code article 3520. Accordingly, they are overruled.

2. Scope of Interruption with Regard to Persons and Actions

The interruption of prescription has no effect beyond the specific right of the person of which the debtor makes acknowledgment. Hence, the insurer’s acknowledgment of Mr. Flowers’ right, as head of the community, to recover for medical expenses, did not acknowledge or interrupt prescription of Mrs. Flowers’ separate right to damages for her personal injuries.

As applied to liberative prescription, Article 3520, in effect, provides that prescription is legally interrupted when the debtor makes acknowledgment of the right of the person against whose claim he prescribed. Legal interruption does not regularly transfer from one obligation or action to another. 5 Civil Law Translations, Bau-dry-Lacantinerie & Tissier, Prescription, §§ 571-573, pp. 279-81; 2 Civil Law Translations, Aubry & Rau, Property, § 215, No. 305, pp. 347-348. Moreover, legal prescription is personal, and generally benefits only the person with whom it originates or whose right has been acknowledged. 2 Civil Law Translations, Aubry & Rau, Property, § 215, p. 348; 5 Civil Law Translations, Baudry-Lacantinerie & Tissier, §§ 555-557, pp. 273-74.

Mrs. Flowers’ right to damages for her personal injuries was distinct from her husband’s right to recover medical expenses for the community. A wife’s action for damages resulting from offenses and quasi-offenses are her separate property and are recoverable by her alone. La.C.C. arts. 2334, 2402. On the other hand, claims for medical expenses for either spouse belong to the community and are recoverable by the husband as its head. Cf. Simon v. Harrison, 200 So. 476 (La.App.1941); Credit Service Corp. v. Dickerson, 243 So.2d 827 (La.App. 2d Cir. 1971); see McConnell v. Travelers Indem. Co., 346 F.2d 219 (Ca. 1965); Rollins v. Beaumont-Port Arthur Bus Lines, 88 F.Supp. 908 (D.C.1950). Accordingly, the claims adjuster’s acknowledgment of Mr. Flowers’ right to reimbursement for medical expenses did not interrupt prescription of his wife’s separate right to damages for her personal injuries.

3. Conclusion

For the reasons assigned, the court of appeal judgment is amended to overrule the exception of prescription insofar as it pertains to the husband’s cause of action. The case is remanded to the trial court for further proceedings consistent with this opinion. Otherwise, the court of appeal opinion and judgment are correct and are affirmed.

AFFIRMED IN PART; AMENDED AND REMANDED.

BLANCHE, J., dissents and hands down reasons.

BLANCHE,’Justice

(dissenting).

I respectfully dissent. The insurance adjuster did agree that the company would pay Mrs. Flowers for her personal injuries when all the medical reports were assembled. Although there has been no trial on the matter, there really is no issue in this case as to the liability of the insured. It is clear that the accident, which resulted in damage to Mr. Flowers’ car and personal injuries to Mrs. Flowers, was caused solely by USF&G’s insured. The issue which was presented in this case was whether the prescriptive period had run without there being any interruption.

As the case has not been tried, the only evidence in the record consists of the depositions of both Mr. Flowers and Mrs. Flowers. The testimony is unrebutted. Throughout, there is clear, direct testimony that Mr. Aucoin, the adjuster for USF&G, orally acknowledged that there was a debt owed to Mrs. Flowers for her pain and suffering. A specific amount was not agreed upon as that amount depended upon the reports from the several physicians who were treating Mrs. Flowers. Mr. Aucoin and Mrs. Flowers had numerous conversations over the period from early February, 1976 until January, 1977. In that time, Mrs. Flowers indicated that she did .not wish to agree to the amount for which she wo'uld settle until she met with Mr. Aucoin in his office. Excerpts of the testimony from the deposition of Mrs. Flowers are as follows:

“. . . and when my husband came to the hospital he told me that the man’s insurance company had gotten in touch with him.
Q. All right. The man, being who? A. Mr. Aucoin. Aucoin’s the only one we talked to from USF&G. So he told him that he understood that — that it was the other man’s fault, and that he would be responsible for bills and making a settlement with us, sooner or later.” (at pages 38-39)
“A. I wanted to meet him to make sure that he and I were in agreement that he [Aucoin] owed me something for pain and suffering because he did tell me that— over the telephone — that he understood and he realized that.” (at page 47)
“. . . the last time I had spoken to Mr. Aucoin he had said that he was ready to make a settlement when my reports came in Then, he [Aucoin] said, ‘Well, all you need to do is get your medical reports or make sure the reports are in.’ ” (at pages 52-53)
“Q. Did you call Mr. Aucoin on the 15th of November?
A. . . .1 was ready again to come to his office and see him. He said, ‘It will not do any good, because I need a full medical report from Dr. Landry and Dr. Hoffman.” (at pages 54-55)
“A. He told me not to come — to talk to him [Aucoin] until I got a final report from — final medical report from Dr. Hoffman and Dr. Landry. So as long as I didn’t have Dr. Hoffman’s, I didn’t rush down . . . ” (at page 68)
“A. I didn’t discuss anything. All I was doing was trying to get an appointment to talk with him [Aucoin] and make some type of settlement. All he would say was, ‘I’m ready to talk to you. I’m ready to make a settlement with you as soon as we have all the doctors’ reports.’ ” (at page 74)
“. . .He [Aucoin] had said to send him all the bills and he as ready to pay anything. I said, ‘Well, you understand that this is something I’m expecting more than something for the bills, for the inconvenience and expenses we’ve gone through, loss of work from my house and what-have-you, plus my pain and suffering. I feel like we’re entitled to something for this.’ He said, T realize that, Mrs. Flowers.’
Q. Did he say anything else?
A. He simply said, T will make a settlement with you whenever you get released from the doctors and we get all the doctors’ reports in.’ ’’ (at pages 79-80)
“. . . He [Aucoin] had led me to believe that it wasn’t necessary to seek advice or legal aid.” (at page 79).

The majority states:

“It is true that its adjuster expressed a willingness to discuss her claims and to try to reach a compromise with her. But his statements and actions did not manifest an intention to admit the company’s indebtedness to her.”

Since Mr. Aucoin did not testify, that conclusion could only be based upon Mr. and Mrs. Flowers’ testimony which, as shown hereinabove, leads to the opposite conclusion.

Mrs. Flowers is entitled to her day in court to prove that an award for personal injuries is due her.

      The Honorable JESSE N. STONE, Jr. participated in this decision as an Associate Justice Ad Hoc.

      . Public policy supports acknowledgments of ordinary obligations on an informal basis. An acknowledgment of a mineral servitude, however, is not the same as an acknowledgment interrupting the ordinary iiberative prescription operating as a release of a debt. The law has developed a rigid set of formal rules intended to assure that a landowner is fully aware of and clearly intends the legal consequences of his act in acknowledging outstanding mineral rights. See La.R.S. 31:54, 55 and comments.

      . Although Article 3520 literally applies to acquisitive prescription, the prescription releasing debts is interrupted by all such causes as interrupt the prescription by which property is acquired. See La.C.C. art. 3551.

      . The rights or causes of action in the present case arose prior to the enactment of Title VI of the Civil Code (Matrimonial Regimes) as provided by Act 709 of 1979.


author: DENNIS, Justice. LANDRY, Justice ad hoc. CALOGERO, Justice,

text:
    Sol KAPLAN et al. v. UNIVERSITY LAKE CORPORATION et al.
    No. 64328.
    Supreme Court of Louisiana.
    Oct. 8, 1979.
    On Rehearing March 3, 1980.
    Rehearing Denied April 7, 1980.

      Floyd J. Falcon, Jr., Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, William P. Stahl, Reynolds, Nelson, Theriot & Stahl, New Orleans, for defendant-applicant.
    Ashton L. Stewart, Stewart & Preis, Baton Rouge, for plaintiff-respondent.
   DENNIS, Justice.

In this suit to enforce a mortgage on immovable property, both the trial and intermediate appellate courts rendered judgment for the plaintiff mortgage-holder, Ka-plan, rejecting a plea of prescription filed by the defendant landowner, Guaranty Savings' Assurance Company. We reverse, holding that the mortgage is unenforceable. Prescription on the debt underlying the mortgage was not interrupted by a pledge of contracts to sell securing the debt, as held by the lower courts, because the contract obligations had been revoked, leaving nothing in the pledgee’s possession to serve as a constant acknowledgement of the prescribed debt.

Facts

University Lake Corporation obtained approval for a loan from the American Bank in 1963 for the purpose of developing a small residential subdivision on 15.19 acres of land in East Baton Rouge Parish. In connection with the loan, Lake Corporation executed a $144,000 hand note with itself as maker. The hand note was secured by the pledge of a $144,000 note which was par-aphed “ne varietur” with an act of collateral mortgage on the land to be developed.

Lake originally planned to develop 18 residential lots fronting on a single street between two man-made lakes. The corporation had entered contracts to sell all 18 lots with its five principal stockholders and officers. ' In connection with the bank loan, Lake pledged to the bank the contracts to sell the 18 residential lots to secure the ne varietur note.

American Bank advanced Lake a total of $132,000. The original plan of development fell through and was replaced by an apartment complex plan, which called for land-filling the entire development instead of digging man-made lakes. The bank began to press Lake for payment of the loan. Lake sold a 60% undivided interest in the property under development to Ingram Contractors, Inc. on November 3, 1964 in return for Ingram’s agreement to dp the landfill necessary for the apartment complex. Lake asked for forbearance in view of Ingram’s landfilling operations and paid only interest on the loan for the next eighteen months. On June 24, 1966 the bank sold the obligation represented by the hand note with all its accompanying security devices to Seymour Weiss for $133,848.

Sol Kaplan and the National American Bank, as executors of the Succession of Seymour. Weiss, filed suit on the notes and security devices on November 15, 1974. By this time the property subject to the collateral mortgage had changed hands a number of times until it was acquired on June 15, 1971 by Guaranty Savings Assurance Company. In taking title to the property Guaranty assumed all mortgages extant against the property.

Following a trial the district court rendered judgment for the plaintiffs, Kaplan, et al., in the amount of $132,000 and ordered enforcement of the collateral mortgage against the property. On appeal, the court of appeal affirmed, adopting the trial court’s written reasons. We granted writs to review the decisions below with respect to the issue of prescription. After reviewing the record and considering the parties’ arguments on all issues, we affirm the judgment below as to the money judgment, but reverse on the issues of prescription and enforceability of the collateral mortgage.

Issues to be Decided by this Court

The central issue in this proceeding is whether prescription was interrupted on the note secured by the collateral mortgage. If prescription was not interrupted, it is clear that the liberative period has elapsed. A decision of this issue calls upon us to answer or reappraise two questions: (1) Does prescription run in favor of the debtor whose debt is secured by a pledge, or does it in fact remain interrupted, as long as the pledgee possesses the thing pledged? and (2) When the thing pledged is the obligation of a third person, does revocation of the obligation remove it from the possession of the pledgee?

1. A Brief Reappraisal of the “Constant Acknowledgment” Rule

This Court will continue to apply the rule that prescription does not run in favor of the debtor whose debt is secured by a pledge, and that it remains interrupted, as long as the thing pledged is in the possession of the pledgee. However, it is not the contract or act of pledge that interrupts prescription, but rather the detention by the pledgee of the thing pledged, such possession serving as a constant acknowledgment of the debt and hence a constant renunciation of prescription. See Succession of Picard, 238 La. 455, 115 So.2d 817 (1959); Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956). This rule, which may be referred to as the “constant acknowledgment” rule, has also been recognized by French commentators. 2 pt. 2 M. Planiol, Traite Elementaire de Droit Civil, § 2462. Moreover, the rule has become interwoven in our security devices law, and the financial and legal communities have come to regard it as one of the unique advantages of the collateral mortgage. Nathan and Marshall, The Collateral Mortgage, 33 La.L. Rev. 497 (1973). Clarification of the rule is needed, however, in view of the prevailing confusion about the meaning of Picard. See Comment, Pledge, Prescription and the Succession of Picard, 10 Loy.L.Rev. 82, 84 (1959).

2. Clarification of the “Constant Acknowledgment” Rule and Succession of Picard

When the pledgee loses possession of the thing pledged, prescription is no longer interrupted, despite the pledgee’s continued detention of the written evidence of the thing pledged. Confusion on this point may have arisen because we held in Succession of Picard, supra, without fully explaining our rationale, that the pledgee’s detention of a pledged promissory note after it had prescribed served to interrupt prescription of the primary debt. We should have pointed out that the pledgee in that case did not lose possession of the thing pledged. The thing pledged was the promisor’s obligation to pay as specified in the promissory note. When an action is barred by prescription, the. civil action is extinguished, but a natural obligation still subsists. La.C.C. art. 1758(3). In ■ contrast to civil obligations, natural obligations do not give rise to a right of action. Nevertheless, they are not completely devoid of legal consequences. La.C.C. art. 1759; 1 C. Aubry & C. Rau, Droit Civil Francais, § 297 (La.St.L.Inst. Transí.1965). For this reason it is said that prescription constitutes an obstacle, since the creditor cannot effectively sue for the performance of the obligation, but does not extinguish the obligation itself. Aubry & Rau, supra, § 314. Therefore, in Picard it was the pledgee’s continued detention of the obligation pledged, subsisting as a natural obligation, which interrupted prescription, not merely his possession of the promissory note instrument. The instrument, a corporeal thing, was merely evidence of the incorporeal obligation pledged. It was not the thing pledged. La.C.C. arts. 460, 2481, 3156.

3. Application of the “Constant Acknowledgment” Rule to this Case

The detention by the bank and its assigns of the pledged contracts to sell in this case did not serve to interrupt prescription on the primary debt because the thing pledged, the obligation of Lake’s officers and directors to buy the 18 lots, was revoked by mutual consent of the parties.

On our review of the record in this case we find it more probable than not that Lake and its principal owners and officers by mutual consent revoked the contracts to sell the residential lots. Lake abandoned its plan of residential development and undertook an apartment complex project. The new plan of development was radically different from and entirely inconsistent with the proposed sales of eighteen one-family homesites. Lake sold a 60% undivided interest in the property to Ingram, and Ingram began landfilling operations as part of the apartment project. The principal owners and officers either actively participated in these transactions, or, by their knowing failure to object, acquiesced in them. Accordingly, the evidence preponderates in favor of a conclusion that the parties to the contracts to sell the eighteen residential lots agreed to revoke the contracts. Although agreements formed according to law bind those who make them, they can be revoked by mutual consent. See La.C.C. art. 1901.

The record reflects that the American Bank probably consented to Lake’s new plan of development, as well as the revocation of the contracts to sell and the sale of the 60% undivided interest to Ingram, which were essential elements of the apartment complex plan. Although there is no evidence that the bank expressed its agreement, the bank was informed of the change in the development plan, the transfer of a majority interest to Ingram, and Ingram’s commencement of landfill operations. Thus the bank was aware that the land would not be subdivided into eighteen residential lots and sold under the contracts to sell. These facts certainly put the bank on notice that Lake and its officers had abandoned or revoked the contracts to sell by mutual consent. Following these events the bank, at Lake’s request, postponed its demand of payment of the collateral mortgage obligation for eighteen months during the Ingram excavation. At the end of this period the bank sold the loan without once complaining of Lake’s actions in changing to an apartment plan, selling 60% of the development to Ingram or the revoking of the residential contracts to sell. Under these circumstances, it is not necessary that we decide whether the parties intended by the pledge contract to restrict Lake’s freedom to develop the property in the manner it deemed most profitable. Nor must we determine precisely what the bank’s rights would have been against the pledgor, debt- or of the pledged obligation, and third persons, if the pledge had been destroyed or impaired without the bank’s consent. See, e. g., La.C.C. arts. 3158, 3173. The evidence is convincing that the bank, in hopes of improving the value of its collateral mortgage, consented to the good faith transactions between Lake,, its management, and Ingram, which were undertaken in the interest of a successful development of the property.

Accordingly, the things pledged, the purchasers’ obligations to buy the eighteen residential lots under the aborted development plan, were revoked and ceased to exist from the time of the sale of the majority interest in the property to Ingram on November 3, 1964. Beginning on this date prescription was no longer interrupted because the pledgee did not have the things pledged, the revoked incorporeal obligations, within its possession. Far more than the required time for liberative prescription of the collateral mortgage obligation having elapsed before the filing of this suit, the collateral mortgage is now unenforceable.

Although the collateral mortgage note is prescribed and the mortgage is unenforceable, the hand note and the original obligation, which Guaranty Savings Assurance Company assumed in its act of sale, have legal validity. The court of appeal correctly held that the collateral mortgage note, because the pledgee and his assigns retained it, operated as a constant interruption of prescription of the hand note. Succession of Picard, supra; Meyer Brothers v. Colvin, 122 La. 153, 47 So. 447 (1908).

For the foregoing reasons we reverse the trial court and court of appeal judgments insofar as they enforce the collateral mortgage, and we affirm the judgments of the lower courts with respect to the $132,000 money judgment on the hand note.

REVERSED IN PART; AFFIRMED IN PART.

SUMMERS, C. J., dissents. I would enforce the collateral mortgage and also affirm the judgments of the lower courts with respect to the $132,000 money judgment on the hand note.

ON REHEARING

LANDRY, Justice ad hoc.

A rehearing was granted Guaranty Savings Assurance Company (GSA) to reconsider the propriety of our holding said defendant liable in the amount of $132,000.00 on a hand note dated October 22, 1963, which note, executed by University Lake Corporation, was secured by a collateral mortgage note for $144,000.00 in turn secured by a mortgage on a 15.19 acre tract of land situated in East Baton Rouge Parish. We reverse and now find that GSA is not liable on the hand note.

Plaintiffs, present holders of the hand note, collateral note and collateral mortgage, also applied for a rehearing on the ground that we erred in holding the collateral mortgage note has prescribed and the collateral mortgage is unenforceable. Plaintiffs’ application for rehearing was denied.

Under the procedural posture thus presented, the matter is before us on rehearing only with respect to GSA’s claim that it is not liable on the hand note.

The facts pertinent to the issue on rehearing are that on June 15, 1971, GSA purchased from International Speedways, Inc., a North Carolina Corporation, the property subject to the collateral mortgage which secured the hand note herein sued upon. The act of transfer to GSA provides a stipulated purchase price

“which is represented by purchaser assuming binding and obligating itself, its successors and assigns to pay all mortgages, judgments and valid liens now extant against the property . . .

On initial hearing we held that:

“Although the collateral mortgage note is prescribed and the mortgage is unenforceable, the hand note and the original obligation, which Guaranty Savings Assurance Company assumed in its act of sale, have legal validity. The court of appeal correctly held that the collateral mortgage note, because the pledgee and its assigns retained it, operated as a constant interruption of prescription of the hand note. Succession of Picard, supra, Meyer Brothers v. Colvin, 122 La. 153, 47 So. 477 [447] (1908).”

Our error consisted in holding GSA liable on the hand note despite the finding that the collateral mortgage note, given in security therefor, had prescribed at the time GSA purchased subject property and assumed all mortgages then extant against the property. More particularly, in so holding we overlooked the salient fact that upon prescription of a collateral mortgage note given in security for a hand note, the hand note reverts to a purely personal obligation of its maker and no longer represents a viable claim against the property subject to the prescribed collateral mortgage note.

In this regard we cite with approval the following from M. Nathan & G. Marshall, The Collateral Mortgage, 33 La.L.Rev. 497, pp. 507-508 (1973):

“A unique advantage of the collateral mortgage device is that the ‘hand note,’ which is the true evidence of indebtedness, is imprescriptible. It is a well-recognized principle of Louisiana law that where a debt is secured by pledge, the holding'of the pledged item by the creditor serves as a constant acknowledgment of the debt by the debtor so as to continually interrupt prescription. Thus, in Scott v. Corkern, where a promissory note was secured by the pledge of a life insurance policy, and nearly 30 years had passed with no payments or other ac-knowledgements of the debt, the court nonetheless found that the principal obligation had not prescribed because the existence of the pledge served continually to interrupt prescription. Applying this legal principle, the pledge of the ‘ne var-ietur’ note serves as a constant acknowledgment of the debt that is evidenced by the hand note and thereby continually interrupts prescription on the hand note. There is even jurisprudence to the effect that if one promissory note is pledged to secure another promissory note, and the note that is pledged prescribes, nonetheless, the prescribed note will serve to continually interrupt prescription on the other note. So long, then, as the creditor holds the ‘ne varietur’ note in pledge behind the hand note, the hand note is imprescriptible.

PRESCRIPTION OF THE ‘NE VARIETUR’ NOTE

The ‘ne varietur’ note itself can prescribe, and being a demand note, the prescriptive period on the ‘ne varietur’ note is five years. For that reason, until recently, it has been the customary practice to have the mortgagor sign a written acknowledgement on the ‘ne varietur’ note within five years after execution of the note (and thereafter to repeat the procedure within five year periods) to prevent prescription from running. If he failed to do so, the ‘ne varietur’ note prescribed, and while the hand note would nonetheless remain a valid obligation, it would no longer be secured by a mortgage and would simply reflect an unsecured debt (not ‘unsecured’ legally, but unsecured practically in the sense that the security is virtually worthless, being the pledge of a prescribed note). All too often lenders neglected or forgot (or were not advised) to obtain the written acknowledgement every five years, and found themselves holding prescribed mortgage notes. As a result, the Louisiana legislature enacted a special statute in 1970 to remedy the problem of prescription on notes such as the ‘ne varie-tur’ note as it is used in the collateral mortgage situation. R.S. 9:5807 provides as follows:

‘The partial payment of a promissory note by the maker thereof shall interrupt prescription upon any and all other promissory notes which have been pledged by said maker to secure the payment of the promissory note upon which the partial payment was made, if the pledged notes are held by the creditor to whom the partial payment was made, provided that in all such cases the creditor shall sustain the burden of proof that the pledged notes were in fact pledged to secure the note upon which the partial note [sic] was paid by the maker and that at the time of the partial payment the creditor receiving the partial payment was the holder of the pledged note or notes.’ ”

We find and hold, therefore, that upon prescription of the collateral mortgage note, there remained no outstanding mortgage against subject property. Consequently, the mortgage herein sought to be enforced was not extant against the property on the date of GSA’s purchase.

As previously noted the hand note became the purely personal obligation of its maker upon prescription of the collateral mortgage note given as security therefor.

It is well settled that the promise to pay the debt of another must be express and in writing. La.C.C. articles 2278(3), 3039 W. H. Ward Lumber Co., Inc., et al. v. International City Bank & Trust Co., et al., 347 So.2d 322 (La., Ct.App. 4th Cir. 1977); General Electric Company v. Martin, 331 So.2d 228 (La., Ct.App. 4th Cir. 1976); Hunt v. Howard, 295 So.2d 864 (La. Ct.App., 2d Cir. 1974).

In this instance the obligation assumed by GSA was clear and specific. GSA assumed only mortgages, liens and judgments extant (outstanding and enforceable) against the property it purchased, on the date of its acquisition. GSA did not undertake to assume any personal obligation of its vendor or any other antecedent owner of the property in question. GSA neither endorsed the hand note nor expressly agreed to pay it.

The record is devoid of an express written instrument binding GSA to pay the personal obligation of the maker of the hand note involved herein. It follows that GSA may not be held liable for such personal liability. La.C.C. Article 2278(3).

The original opinion of this court casting GSA in liability pursuant to the hand note is annulled, reversed and set aside and judgment rendered herein declaring GSA to be free of liability with respect thereto. Except as herein amended and modified, our original decree is reaffirmed, all costs to be paid by plaintiffs.

Original opinion affirmed in part and reversed in part.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I voted to grant not only the rehearing application of Guaranty Savings Assurance Company but also the rehearing application of National American Bank because I felt 1) that we probably erred in finding the collateral mortgage note and the mortgage prescribed and unenforceable, and 2) that we also probably erred in finding that Guaranty Savings Assurance Company was personally bound on the hand note and original obligation for having assumed the obligation represented by it.

This Court denied the application of National American Bank, while granting the application of Guaranty Savings Assurance Company.

Because the only matter still live and before us is Guaranty Savings Assurance Company’s liability (or non-liability) on the hand note, and because I agree with the majority’s conclusion that Guaranty Savings Assurance Company did not assume the obligation under the hand note by assuming only valid extant mortgages or liens, I concur in the majority opinion herein.

      . We agree with the lower courts’ finding that the parties intended the pledge to secure the ne varietur note, rather than the hand note. See 369 So.2d at 1112. Although a pledge to secure a collateral mortgage note is unusual, Nathan and Marshall, The Collateral Mortgage, 33 La. L.Rev. 497 (1973), such was the parties’ intention in their pledge agreement.

      . Actions on promissory notes are prescribed by five years. La.C.C. art. 3540. More than five years elapsed between the final interest payment on April 6, 1966 and the filing of the suit on November 15, 1974..

      . In searching for origins of the constant acknowledgment rule, the first case we have found that mentioned it was Wilson v. Bannen, 1 Rob. 556 (1842). The court held that a pledge of goods on a ship operated as a constant acknowledgment of the owner’s obligation to pay the ship its freight charges. The rationale for the rule is that the debtor makes an implied acknowledgment of the debt by delivering his property to the creditor in pledge. One writer has called this, appropriately, the “constant acknowledgment doctrine” and, in line with Planiol, has stated that the policy underlying the doctrine is to protect “the valuable right of the pledgee to retain possession of the thing pledged until he [is] paid.” Comment, Pledge, Prescription, and the Succession of Picard, 10 Loy.L.Rev. 82, 84 (1959). However, as it has developed in Louisiana, the constant acknowledgment rule has come to mean that when there is a pledge, the principal obligation is imprescriptible, no matter what the value or nature of the thing pledged. Id. p. 88.

      . Our decision in Picard that prescription was interrupted was based also on the pledgee’s detention of pledged corporate stock. Although the corporation had been placed in receivership, and the stock presumably had diminished in value, the rights represented by the shares were still in existence and in the pledgee’s possession.

      . A natural obligation may also form the basis for a pledge, which is rendered valid when the natural obligation is confirmed and becomes executory. See La.C.C. art. 3139.

      .Although the promise to sell an immovable may not be enforced unless it is in writing, La.C.C. art. 2462, there is no requirement that the parties’ mutual consent to revoke a written contract be in writing. La.C.C. art. 1901. See Tholl Oil Co. v. Miller, 197 La. 976, 3 So.2d 97 (1941); Investors Homestead Ass’n v. Anglada, 193 La. 596, 192 So. 69 (1939); Parlor City Lumber Co. v. Sandel, 186 La. 982, 173 So. 737 (1937); Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir. 1978); Torrey v. Simon-Tor-rey, Inc., 307 So.2d 569 (La.1974), Tate and Barham, JJ., dissenting on original hearing.

      . “Extant” is defined in the Third Edition of Webster’s New International Dictionary as “currently or actually existing: that is in existence; still existing: continuing to exist: maintaining existence: not exterminated, destroyed or lost.”


text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 63142.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Rehearings Denied April 7, 1980.
    William O. Bonin, Landry, Watkins & Bonin, New Iberia, for plaintiff-appellant.
    Michael R. Fontham, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, Marshall B. Brinkley, General Counsel, L.P.S.C., Baton Range, for defendant-appellee.
    Stephen M. Irving, Baton Range, for In-tervenor, La. Consumer’s League.
   PER CURIAM.

This is an appeal by Central Louisiana Electric Company, Inc. from a decision by the Louisiana Public Service Commission pursuant to a remand ordered by this Court. See Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 373 So.2d 123 (La.1979) (rehearing denied, opinion and decree amended, August 2, 1979). The Commission held hearings pursuant to the remand in order to comply with the instructions of this Court to (1) establish the fair rate of return to Louisiana Intrastate Gas Corporation, a wholly owned subsidiary of CLECO, as a predicate for any adjustment of the return earned by CLECO to offset excessive revenues relating to transactions between these affiliated corporations, and (2) take additional evidence relating to the proper method of computing the necessary amount of working capital of CLECO. LIG filed an intervention in the proceedings before the Commission, presented evidence, and has joined CLECO in the appeal of the decision to this Court.

After hearing evidence presented by the parties and the testimony of its own expert witness, the Commission found that the fair rate of return on equity of LIG was 16%, which is 30% higher than the fair rate of return on equity allowed CLECO. Additionally, the Commission reaffirmed its previous position on working capital on the basis of the evidence presented by expert witnesses. After implementing the 16% rate of return on equity for LIG, the Commission found that the earnings of CLECO in the test year still exceeded the fair rate of return for CLECO and LIG by $816,000. Accordingly, the Commission found that no increase in the rates of CLECO was justified on the record.

Having considered the briefs of the parties, the record on the case on remand, and the reasons of the Commission, we conclude that there is warrant in the record and a rational basis in law for the regulatory action. Instead of pointing out unreasonable action. in the agency’s determination of LIG’s fair rate of return on equity, which included by construction or implication a determination of its fair rate of return, the utility and its subsidiary seek to reopen issues which were decided finally in our original opinion and were not part of the case on remand. Rather than indicating arbitrariness, the evidence now reflects that the Commission’s adjustments to the lead-lag study, in computing working capital were reasonably designed to limit its consideration to revenues and expenses related to the test year.

The briefs filed in this Court by CLECO and LIG fail to demonstrate that the Commission acted arbitrarily, capriciously, or in abuse of its authority.

For the reasons assigned, the order of the Commission is affirmed.

AFFIRMED.

SUMMERS, C. J., dissents.

WATSON, J., does not participate.


author: STONE, Justice ad hoc. MARCUS, Justice

text:
    STATE of Louisiana v. Harry Lee BELL.
    No. 65231.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Rehearing Denied April 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Charles Richard, Terry Johnson, Abbott J. Reeves, Asst. Dist. At-tys., for plaintiff-appellee.
    Alcide J. Gray, Lake Charles, for defendant-appellant.
   STONE, Justice ad hoc.

Defendant, Harry Lee Bell, appeared in court for arraignment on November 20, 1978 on a charge of simple burglary, at which time he informed the trial court that he wished to employ an attorney. Subsequent thereto, an attorney apparently was appointed for defendant and when defendant returned to court on December 11, 1978 for arraignment he advised the court that counsel had been appointed. On March 12, 1979 defendant appeared before the court without counsel because his court-appointed counsel had joined the office of the district attorney for the 22nd Judicial District. At that time, defendant waived his right to counsel. On April 30, jury selection began, and defendant informed the court that he wanted to continue to represent himself. An attorney who was present at the hearing, Alcide Gray, indicated to the trial judge that he was willing to accept an appointment to sit with defendant during the course of the trial in an advisory position. After the jury was selected, Gray moved to become counsel of record and for a continuance. The motion for a continuance was denied, but he was appointed counsel of record. Defendant did not object to the appointment. The defendant was tried and found guilty of simple burglary and sentenced. *

On one assignment of error, Harry Lee Bell appeals from his conviction of simple burglary. The defendant argues that he did not knowingly and intelligently give up his right to counsel. As a result, Bell contends, the trial judge should have granted the requests of his subsequently appointed counsel for a continuance and a new trial.

After reviewing the record, we have decided that it is impossible to determine whether the defendant’s decision was knowing and intelligent. Therefore, we vacate his conviction and remand his case for a new trial.

This decision in no way modified the holding of this Court in State v. Boettcher, 338 So.2d 1356 (La.1976). In Boettcher, we stated that we would not allow a defendant previously without counsel to suddenly change his mind the day before trial, retain counsel, and seek a continuance. Such behavior is dilatory and is properly discouraged. In this case, the record reflects that the fatal error occurred when the trial judge failed to inquire into the defendant’s ability to defend himself. A finding supported by the evidence that the defendant’s decision to defend himself was knowing and intelligent would require affirmance of his conviction. Such a finding cannot be made from the record in this case.

After reading the transcript of March 12, 1979 hearing at which the defendant waived his right to counsel, we conclude that the trial judge did not adduce enough information from the defendant to determine whether he knowingly and intelligently waived his right to counsel. The court was informed that the defendant needed a lawyer because his previous court-appointed counsel had left his case in order to accept a position as an assistant district attorney (Record oh appeal, p. 32). The dialogue between Bell and the judge then proceeded as follows:

THE COURT: Of course, he’s no longer with us, and is it your desire to have another attorney to . appointed to represent you?
MR. BELL: No.
THE COURT: You don’t want another lawyer, don’t want any at all?
MR. BELL: No.
THE COURT: All right; you can waive your right to an attorney.

(Record on appeal, pp. 32-33). The trial judge considered this inquiry to be sufficient to support the defendant’s waiver because the judge had to call the defendant back to the bench to set his trial date. As the court worked out the details of the trial date, the judge addressed the defendant once more:

THE COURT: All right; now you’ve . you’ve just told me that you did not want to be represented by a lawyer. Now, don’t come up here the day of the trial and say, look, I can’t go to trial because I don’t have a lawyer. Now, do you hear what I’m telling you? So if you decide you want a lawyer, then let us know in plenty of time, because you’re not going to continue your trial simply because you tell us you didn’t have an opportunity to get a lawyer or some problem with getting a lawyer, okay?
MR. BELL: That this month I go to Court?
THE COURT: What is that?
MR. BELL: It’s this month here I go to Court?
THE COURT: No; next month . the end of next month, April 30th. They are going to give you a card here to . so you can remember that date, okay?

(Record on appeal, pp. 33-34).

The transcript gives no hint that the defendant understood the consequences of his not having an attorney. In addition, Bell gave no indication that he understood the judge’s warning of the consequences of a continuance right before the trial. The judge revealed no knowledge of the defendant’s ability to defend himself.

In State v. Hegwood, 345 So.2d 1179 (La.1977), we said that before a trial judge can allow a defendant to defend himself, that judge must determine:

[Wjhether defendant’s waiver of his right to be represented by counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. See Faretta v. California, [422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1977)], . . State v. Snoddy, 332 So.2d 800 (La.1976); State v. Nix, 327 So.2d 301 (La.1975), per curiam on denial of rehearing (La.1976).

Hegwood, 345 So.2d at 1182.

In Faretta, the United States Supreme Court said that the trial court should inform the defendant “of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel McCann, 317 U.S. [269], at 279, 63 S.Ct. [236], at 242 [, 87 L.Ed. 268].” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). In upholding Faretta’s right to represent himself, the high, court noted that the record did affirmatively show “that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” Id.

Regardless of the basis for the judge’s decision, the record reflects no attempt on his part to assess the defendant’s literacy, competency, understanding, and volition. We can only conclude that the judge did not investigate these factors and that his decision to allow the defendant to represent himself was not supported by the record of the hearing.

Accordingly, the defendant’s conviction is vacated and remanded to the lower court for a new trial.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents.

MARCUS, Justice

(dissenting).

In my view, we need not consider whether or not defendant intelligently and voluntarily waived counsel because he was in fact represented by counsel in this case.

The record reveals that the court appointed counsel (Alcide Gray) to assist defendant on the day of trial (April 30, 1979), prior to its commencement. The state, defendant and Mr. Gray announced that they were ready for trial. The jury was selected and sworn. Thereafter, Mr. Gray moved for a continuance which was denied. The court, with the consent of the defendant, appointed Mr. Gray to represent the defendant. Thereafter, trial proceeded with Mr. Gray representing defendant. Trial was not completed on April 30; it was continued to the next day (May 1) at which time the trial was completed. Mr. Gray represented defendant throughout the trial as well as at the hearing on the motion for new trial, at sentencing and on appeal to this court.

Accordingly, I respectfully dissent.

      . The November 20, 1978 hearing cited in State’s brief is similarly deficient under the Faretta standard. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In addition, the hearing did not address the defendant’s desire to represent himself because Bell at that time readily accepted counsel.

      . La.Code Crim.P. art. 761 provides that a jury trial commences when the first prospective juror is called for examination.

      . La.Code Crim.P. art. 708 provides that a continuance shall not be granted after the trial has commenced.


author: CALOGERO, Justice. MARCUS, Justice DENNIS, Justice,

text:
    Alice C. ROCHE et al. v. BIG MOOSE OIL FIELD TRUCK SERVICE et al.
    No. 65285.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Rehearing Denied April 7, 1980.

      Thomas F. Porter, IV, Shelton & Legendre, Lafayette, for plaintiffs-applicants.
    James R. Nieset, Plauche, Smith, Hebert & Nieset, Lake Charles, for defendants-respondents.
   CALOGERO, Justice.

This is a wrongful death action by a surviving wife, individually and as tutrix of her adopted children, for the death of her husband and the children’s prospective adoptive father who was killed while unloading a truck owned by Big Moose Oil Field Truck Services. Named as one group of defendants are the driver of the truck, Big Moose, and their insurer (the Big Moose defendants). A second group of defendants includes certain executive officers and employees of Fred Wilson Drilling Company and their insurer (the Fred Wilson defendants). We granted writs (375 So.2d 658 (La.1979)) to resolve the following issues:

1) Whether the minor children have a right of action for the wrongful death of decedent when the final decree of adoption was not rendered before his death.
2) Whether plaintiff under R.S. 23:1102 is required to intervene in the prior suit filed by the workman’s compensation insurer against the tortfeasor rather than proceed in her own separate suit?

Plaintiff Alice C. Roche and the decedent Joseph Daniel Roche were married in 1968. They had no children. In 1974 the Juvenile Court for the Parish of Calcasieu decreed William David Robinson and Dawn Rochelle Robinson to be abandoned and awarded their custody to the Louisiana Health and Human Resources Administration for placement, in the best interest of the children. The children had been living with the Roch-es since April 21, 1972 as their foster children.

On December 2, 1976 Liberty Mutual Insurance Company, the workman’s compensation insurance carrier for decedent’s employer at the time of the death, filed suit in the Fifteenth Judicial District Court against the Big Moose defendants to recover compensation benefits paid. The next day the plaintiff individually and on behalf of the two minor children filed this wrongful death action, also in the Fifteenth Judicial District. Both sets of defendants filed exceptions. The trial court ruled that the minor children have no right of action because they were not adopted before Joseph Roche’s death (on exceptions filed by both sets of defendants), that Act 147 of 1976 which abolished “executive officer” actions does not apply retroactively to this action (on exception of the Fred Wilson defendants alone), and that Mrs. Roche has no right or cause of action to file the present suit because her sole remedy is to intervene in the suit previously filed by the compensation insurer (on exceptions filed by both sets of defendants).

On appeal the Third Circuit affirmed the trial court’s ruling that the minor children have no right of action because they .were not adopted at the time of decedent’s death, and affirmed the dismissal of Mrs. Roche’s action on the ground that R.S. 23:1102 requires that she intervene in the compensation insurer’s previously filed suit.

That court also concluded that plaintiffs had not appealed from the August 10,1978 ruling on the exception of the Fred Wilson defendants as to the children’s right of action.

To determine whether these minor children have a right of action for the wrongful death of Joseph Roche, we must examine Article 2315 of the Louisiana Civil Code which creates the survival and wrongful death actions and the classes of beneficiaries who in the order of preference may recover damages thereunder. The first class of beneficiaries includes “the surviving spouse and child or children of the deceased.”

Adopted children were first included as beneficiaries by Acts 1948, No. 333, § 1 which amended Article 2315 to extend the right of action to children who were adopted. The article was again amended in 1960 to its present form to provide that the word child as used in that article includes a child “by adoption.” Whether we can find that the word child also includes a child for whom a petition of adoption has been filed but whose adoption is not final is the issue here.

In Bertrand v. State Farm Fire and Casualty Co., 333 So.2d 322 (La.App. 3rd Cir. 1976), an analogous situation was presented. There a mother had surrendered her minor child to the child’s maternal grandparents for adoption. After an interlocutory decree but before a final decree of adoption, the child drowned. Both the child’s mother and his maternal grandparents sued for damages for wrongful death. The Court of Appeal held that because the grandparents were not the mother and father of the child “by adoption” within the meaning of Civil Code Article 2315 (because the final decree of adoption had not been rendered), the child’s mother rather than the prospective adoptive parents had the right of action under Article 2315.

It is well-settled in the jurisprudence that the right of action created by Article 2315 may be extended only to the beneficiaries named in the statute and that the classes of beneficiaries must be strictly construed. As stated in Thompson v. Vestal Lumber Manufacturing Co., 16 So.2d 594 (La.App. 4th Cir. 1943), “Upon whom [the right of action] should devolve was a matter that peculiarly addressed itself to the Legislature. It has acted and the beneficiaries named may not be increased by judicial action.”

In the instant case the minor children are not the “children” of the decedent “by adoption” within the meaning of Article 2315. Although they may have been dependent upon decedent for support and affection, they are neither his biological nor his adoptive “children.” We therefore can not find that they have a right of action under Article 2315 for his death.

In brief plaintiffs present the following additional arguments:

1. That the minor children even if not the adopted children of decedent suffered no less than if their prospective adoptive father had died after the final decree of adoption than before because they were totally dependent upon him for income, support, guidance and affection;

2. That Mr. and Mrs. Roche had committed themselves twice through contract with the Department of Public Welfare to provide for the care and financial support of the children;

3. That the doctrine of equitable adoption which is recognized in some common law jurisdictions should be applied in this case. See In Re Williams, 10 Utah 2d 83, 348 P.2d 683 (1961); Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1962);

4. That the prospective adoptive children should be treated under the law at least as well as illegitimate children who in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), on remand 253 La. 73, 216 So.2d 818 (1968) were afforded the right to recover for the wrongful death of their mother upon whom they were dependent;

5. That the children should be treated as “posthumous children” who being born after the death of their father are accorded all the legal rights of legitimate children. See La.Code Civ. art. 29 which provides that “Children in their mother’s womb are considered in whatever relates to themselves as if they were already born . . . .”

We have considered each of plaintiffs’ arguments and try as we might to find a legal basis for holding that the minor children have a right of action, we can reach no other conclusion than that the arguments have no merit. None of these equitable considerations, separately or together, serve to make these children the adoptive children of decedent within the meaning of Article 2315. Furthermore the common law cases relying on the doctrine of equitable adoption (which cases represent only two of'the common law jurisdictions) are of no assistance in the interpretation of Article 2315. The argument based on Levy v. Louisiana, supra, is also unpersuasive because the holding in that ease was based on a finding that the restrictive interpretation of Article 2315 which excluded illegitimate biological children from the class of beneficiaries was invidiously discriminatory on the basis of birth. The children in the instant case are not decedent’s biological children; therefore Levy is inapposite.

Plaintiffs’ argument that the children should be treated just as would a decedent’s posthumous children is possibly their best argument. While we recognize that there is some analogy between a fetus in' its mother’s womb which is born after the death of its father and a prospective, adoptive child whose adoption. had been petitioned for but which is scheduled to become final only a month after the prospective father’s death, the rule that Article 2315 be strictly interpreted requires that we not expand the classes of beneficiaries by analogy. Moreover, the analogy between the two is a weak one. In the case of a fetus which subsequent to the father’s death is born alive, the father can do nothing to prevent the child’s birth or status, unlike the present case in which the decedent Joseph Roche could have withdrawn his consent prior to the final adoption decree. Additionally the posthumous child’s being born alive is unaffected by and unrelated to the event which gives rise to its Article 2315 rights — the death of its father. The prospective adoptive child’s claim, on the other hand, is directly related to and dependent upon the father’s continued concurrence in the adoption, a matter affected by and in fact prevented by his pre-adoption death.

We must next consider the primary issue which prompted our grant of this writ: Whether Mrs. Roche, who does indeed have a right of action for the wrongful death of her husband, must intervene in the suit filed by the decedent’s workman’s compensation insurer.

The right of an employer or his compensation insurer to seek redress from a third person causing injury to an employee, for which the employee is entitled to compensation, is established by R.S. 23:1101, et seq. The first paragraph of R.S. 23:1101 recognizes that the exclusive remedy of the employee against his employer for employment related injuries does not affect that employee’s right to seek damages from some person other than the employer for his injuries. That statute further provides that the employer may recover any amount which he has paid or has become obligated to pay as compensation to the employee or his dependents.

Under R.S. 23:1102 if either the employer or the employee brings suit against a. third person as provided by R.S. 23:1101, the other may intervene:

“If either the employee or his dependent, or the employer, brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.” (emphasis provided)

Although that statute provides that the other party may intervene as a party plaintiff if either the employee or the employer brings suit against the third person, the jurisprudence holds that an employer’s failure to intervene in a suit filed by the employee, after proper notice, bars the employer from bringing a separate suit against the third party tortfeasor. Todd-Johnson Dry Docks v. City of New Orleans, 55 So.2d 650 (Orl.La.App., 1951); Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269 (1957); National Surety Corporation v. Standard Accident Insurance Company, 247 La. 905, 175 So.2d 263 (1965). No case however has held that an employee’s timely filed suit must be dismissed if the employer has pending a previously filed suit for reimbursement of compensation paid.

In Todd-Johnson Dry Docks, Inc. v. City of New Orleans, supra, the court held that an employer’s failure to intervene in an employee’s previously filed action bars the employer’s claim for reimbursement of the benefits paid. That court reasoned that R.S. 23:1102 does not create a “new, independent action based on the compensation paid. [Citations omitted] All that statute does is recognize the fact that as a result of Article 2315 of our Civil Code, an injured employee may collect damages from the third party tortfeasor, and that if he is entitled to such damages the employer may, by pursuing the proper course of action, obtain out of those damages the amount for which he is liable in compensation.” That court recognized that it is the employee’s cause of action under Article 2315 and that the employer’s action is only incidental thereto and only for the amount he has paid in compensation.

Respondent in brief relies upon language in National Surety Corporation v. Standard Accident Insurance Company, supra, to argue that the issue of whether an employee must intervene is settled. In that case the issue presented was whether a suit by a compensation insurer against the third party tortfeasor interrupted prescription as to a suit filed by the employee more than one year after the accident. There we held that because there is only one cause of action from which both the employee and employer’s claim arise, there could be only one prescriptive period and that it was interrupted by the timely filing of suit by the employer. The Court, however, in passing stated:

“LSA-R.S. 23:1101, 23:1102, 23:1103, supra, do not set forth whether the injured employee or employer or the employer’s insurer shall sue first; when one files suit, however, the other, if he desires recovery must intervene. The intervention is incidental despite that it is filed by the employee. Article 1031, LSA-Code of Civil Procedure, supra.” (Emphasis provided)

Although we there stated that the employee’s action is “incidental” and that when either the employee or the employer has filed suit first, the other, if he desires recovery, must intervene, that language was unnecessary to our holding and therefore dicta. While the observation that the employee’s action was incidental may be relevant to whether prescription was interrupted, it does not bear on the issue of whether a timely filed action by an employee may be dismissed because of a previously filed action of the employer.

■One apparent purpose for preferring to require intervention of an employer or an employee into a lawsuit previously filed by the other is to prevent the third party tort-feasor from having to defend two separate lawsuits based on the same delictual and quantum facts. As suggested by the Court of Appeal another reason for allowing intervention is to protect the employer from losing his right to indemnification in the event of a lawsuit by the employee against the tortfeasor. While each of these is a valid purpose, neither is sufficient to require an employee, to whom the cause of action accrues under Article 2315 and who under R.S. 23:1101 has a tort claim, to intervene in an earlier filed action by the employer. It is the employee or his statutory beneficiaries who have suffered the full loss compensable under Article 2315, not the employer. The employer’s right is only a statutory one under R.S. 23:1101 for reimbursement of compensation paid or payable out of the employee’s damage claim.

In a case such as this in which the employer filed suit first (December 2, 1976) and the employee chose to file a separate lawsuit (only one day later), if one of the lawsuits has to be dismissed, it makes more sense that it be that of the employer. While many employees may choose simply to intervene where a lawsuit has already been filed by the employer, the employee who timely files a separate action should not be required to do so, and indeed is not required to do so under R.S. 23:1102 which provides simply that either party may intervene. If an employee files suit for damages from the third party tortfeasor, an employer seeking reimbursement of compensation paid must intervene in the pending lawsuit, as per Todd-Johnson, supra, and as per the dicta in National Surety, supra. That jurisprudence as it relates to the employer’s second filed suit is unaffected by our decision here. We hold in this case that if an employer files suit first, the employee may still maintain a separate action for his damages and need not intervene in the employer’s pending lawsuit. All that we must do, and are doing here, to resolve the legal issue before us is to find that the trial court erred in dismissing Mrs. Roche’s timely suit filed separately from the earlier filed employer suit. Her suit should not have been dismissed, be it with or without prejudice.

We are mindful that our holding in this case coupled with the incongruity of R.S. 23:1101’s recognition of rights of both the employer and the employee, and R.S. 23:1102’s provision for permissible intervention may result in multiple lawsuits involving single claims. Because in the instant case both the employer and the employee’s claims were timely filed in the same district court (the Fifteenth Judicial District Court), consolidation of the two lawsuits and treatment of the employer’s action as an intervention will solve the problem in this case.

And while we are tempted to prescribe a procedural solution in the situation in which two lawsuits are filed in two different courts, each of proper venue, we conclude that such resolution would be dicta here and legislative in nature. It is therefore best left to the Legislature to solve this problem.

Decree

For the foregoing reasons the judgments of the district court and the Court of Appeal are affirmed insofar as they dismissed the action brought on behalf of the minor children; the judgments of the district court and the Court of Appeal dismissing Mrs. Roche’s action and requiring her to intervene in the previously filed lawsuit of Liberty Mutual are reversed and the two lawsuits No. 40,722 and No. 40,732 in the Fifteenth Judicial District Court are ordered consolidated. The case is remanded to the district court for further proceedings consistent with this opinion.

JUDGMENTS AFFIRMED IN PART; REVERSED IN PART; REMANDED.

MARCUS, J., concurs and assigns reasons.

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

MARCUS, Justice

(concurring).

In my view, it is inconsistent to hold that, if an employee files suit for damages against a third party tort feasor, an employer seeking reimbursement of compensation must intervene in the pending lawsuit, yet where an employer files suit first, the employee may still file a separate action for damages and need not intervene in the employer’s pending suit. Accordingly, I respectfully concur.

DENNIS, Justice,

dissenting in part and concurring in part.

I respectfully dissent from the majority’s opinion that the children have no cause of action.

I question whether 2315’s listing of wrongful death beneficiaries is exclusive thereby denying these children recovery. In the case of King v. Cancienne, 316 So.2d 366 (La.1975) we held that a putative spouse would not be deprived of recovery under 2315 for the wrongful death of her putative husband even though she did not technically fit within any of the categories of 2315. As a partial basis for the decision, Justice Barham outlined the history of wrongful death in Louisiana and in France. He noted that “Under French law . any person suffering from the loss or disappearance of the victim by death has an independent right of action for his own loss.” King, supra, 316 So.2d at 368. He observed:

“Our Article 2315 is drawn directly from French law. . . . The purpose of that provision in France and in Louisiana was to provide an action for personal damage resulting from the death of another through the delictual action of a third party. The legal right and cause of action of one injured by loss of economic aid or love and affection was independent of any action which the deceased might have had . . . .” King, supra, 316 So.2d at 369.

In King, the issue of whether the listing of beneficiaries in 2315 is exclusive or illustrative was recognized but not addressed. It has been long held that the article must be strictly construed and that, therefore, the listing must be exclusive. See Chatman v. Martin, 245 So.2d 423 (La.App. 2d Cir. 1971) and the authorities cited therein. However, the basis for this ruling is faulty. While in France the wrongful death action was recognized, the Common Law of England maintained that the death of a human being did not create a cause of action on behalf of a living person injured because of the death. However, in 1846 Lord Campbell’s act was passed giving such a cause of action in limited circumstances. This provision being statutory law, it was in derogation of the common law and as such fell under the rule of requiring strict construction. Johnson, Death on the Calíais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1, 4-6 (1976). However, our legal background and traditions are civilian. As Professor Johnson astutely commented,

“Article 2315 is not in derogation of common law; it is not in derogation of anything. There was no reason at all to adopt the common law maxim of strict interpretation of statutes which departed from the common law. And yet, for years and years, the Louisiana jurisprudence has confidently concluded that the article has to be strictly construed, when in fact there is no reason to interpret the article in a different fashion from any other article or statute.” Johnson, supra, 37 La.L.Rev. at 7.

Because of the wrongful act of another the children in the present case were injured. They were deprived of support, love and affection, and of a father. Although they may not fit technically within any of the present categories of 2315 I believe that an examination of the purpose of the statute would require that person who caused the damage to repair it.

Moreover, the majority’s interpretation of Article 2315 renders it unconstitutional.

Although I appreciate the difficulty in conceptualizing a class including the children, it seems to me that dependent minors undergoing virtually certain adoption, absent the death of the adoptive parent, do form a legitimate category deserving of equal protection of the laws — at least as deserving as independent major illegitimate children who may have never known their deceased parent. If the majority’s interpretation of Article 2315 is correct, it arbitrarily, capriciously or unreasonably discriminates against the prospective adopted children because of their birth, La.Const. Art. 1, § 3, there being no rational basis to support such discrimination.

I join fully in the balance of the majority opinion.

      . The issue of whether the plaintiffs had appealed the ruling on the Fred Wilson defendants’ exception arose in the following context: All of the exceptions of both sets of defendants were heard on May 1, 1978. On July 31, 1978, the district court judge rendered written reasons for judgment. Pursuant to the written reasons rendered July 31, 1978, the court rendered and signed a judgment on August 10, 1978 in favor of only the Fred Wilson defendants, sustaining their exception of no right of action as to the minor children but overruling their exception as to the retroactive effect of Act 147 of 1976. On October 9, 1978, a separate judgment was rendered sustaining both exceptions urged by the Big Moose defendants.
      On November 3, 1978 plaintiffs obtained an order for an appeal from the judgment “rendered herein on July 31, 1978 and read and signed in Chambers on October 9, 1978.” Plaintiffs’ motion and order for appeal did not specifically mention the judgment rendered on August 10, 1978 on the Fred Wilson defendants’ exceptions.
      In the Court of Appeal the Fred Wilson defendants argued that the plaintiffs simply did not appeal from the trial court’s judgment of August 10, 1978 which had dismissed the claims of the two children against them. They argued that because plaintiffs obtained an order for appeal from the judgment rendered October 9, 1978 and because the order did not mention the August 10, 1978 judgment rendered on their exception, that judgment (August 10, 1978) was final. The Court of Appeal determined that although it may have been the intention of plaintiffs to appeal both judgments (August 10, 1978 and October 9, 1978), they simply had not done so since the order of appeal only specified the October 9, 1978 judgment.
      The Court of Appeal in expressing that there was no need for briefs by the Fred Wilson defendants on the merits of the right of action of the minor children, related that they were holding the August 10, 1978 judgment was not appealed. That resolution, or “holding,” was not necessary to the decision since the trial court judgment maintaining the exceptions of no right of action of the minor children was affirmed. So, too, for the purpose of our review, it is unnecessary to resolve the procedural question of whether plaintiffs timely appealed the August 10, 1978 judgment maintaining the exception of no right of action urged by the Fred Wilson defendants.

      . Article 2315 as amended in 1960 provides in pertinent part:
      “As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

      . Louisiana Revised Statute 23:1101 provides:
      “When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations; or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
      Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee or his dependents.”

      . Consolidation of two separate suits involving a common issue of law or fact pending in the same court is provided under Article 1561 of the Code of Civil Procedure:
      “When two or more separate suits involving a common issue of law or fact are pending in the same court, the court, at any time prior to trial, may order the consolidation of the suits for trial or may order a joint trial of any of the common issues.”

      . For instance one solution might be to provide that where the employer’s statutory claim for compensation reimbursement is first filed, a suit filed by the employee within the prescriptive period in a court of proper venue shall not be subject to being dismissed on exceptions and shall not be affected by the disposition of the employer’s suit. The employer’s earlier filed suit in this latter instance might, however, be subject to being transferred and consolidated with the employee’s suit as though it were an intervention. For a comparable provision to transfer from one district court to another see Article 123 Code of Civil Procedure.

      .The problem is caused by R.S. 23:1101’s recognition of distinct claims of the employer and the employee arising out of a single accident and R.S. 23:1102’s provision that either the employer or the employee may rather than must intervene in the earlier filed lawsuit.