text:
    John CARTER, Robert Carter, Tom Aldred, Cecil Biggs, Petitioners, v. Dale CARSON, Sheriff of Duval County, Florida, Respondent.
    No. NN-279.
    District Court of Appeal of Florida, First District.
    May 22, 1979.

      Norman J. Abood, Jacksonville, for petitioners.
    Jim Smith, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioners were arrested and charged with a misdemeanor violation of the obscenity laws, Florida Statute 847.011, and each was placed under bond of $50,000.00. They then filed petition for writ of habeas corpus seeking reduction of their bonds, which resulted in an order reducing the monetary bond in each instance. In the order reducing bond the trial court included as a “special condition”, the requirement that petitioners

. shall not engage in employment connected with or dealing in the possession of obscene materials with the intent to show, sell or distribute the same.” (Order reducing bond, March 9, 1979)

Petitioners timely filed their notice of appeal from the March 9 order, and subsequently applied for a constitutional stay writ which this court denied, but at the same time ordered filing of respondent’s brief within ten days, and further ordered that the cause be submitted without oral argument.

Respondent first contends that there is no showing before this court that petitioners at any time during the proceedings in the trial court ever objected to the condition of the bond of which they now complain, and that barring such objection, this court is precluded from considering the issue. State v. Barber, 301 So.2d 7 (Fla.1974). Secondly, respondent argues that the contested condition does no more than to place a requirement upon petitioners that they refrain from violating the criminal laws. Finally, respondent argues that even if the court struck the particular condition complained of petitioners would obtain no real relief, because they would still face the prospect of rearrest in the event they commit further illegal acts.

We note in the first instance that Rule 3.130, Fla.R.Cr.P., governing “Pre-Trial Release” sets forth certain requirements regarding release upon bail and revocation of bail. Subparagraph (b)(4) of that Rule sets out particular “forms of release” recognized as “bail” under the Rule. In addition to the usual forms of monetary bail, the court may place restrictions on the travel, association, or place of abode of the defendant during the period of release (Rule 3.130(b)(4)(i)(4)) or impose any other condition deemed reasonably necessary to insure appearance as required (Rule 3.130(b)(4)(i)(4) and (6)).

Since the particular condition in the order is not specifically provided for by the rules, we must find justification, if any, in the provisions of sub-subparagraph (b)(4)(i)(6) as a condition “deemed reasonably necessary to assure appearance as required”. We fail to see any reasonable relationship between the special condition and the assurance of defendants’ appearance to answer the charges against them, and respondent’s brief has suggested no basis for such a conclusion, and no authority for the condition. We conclude that the special condition enjoins, or attempts to enjoin, some conduct which may or may not be criminal under the laws of Florida, and which has not been shown to bear any relationship to the legitimate purposes of bail, that is, to insure the defendants’ appearance at future court proceedings. Cf. The Ladoga Canning Corp., etc. v. McKenzie, etc., 370 So.2d 1137, holding invalid as an impermissible prior restraint injunctions prohibiting distribution of “other printed materials which violate the provisions of Florida Statute 847.011(l)(a),” pointing out that the right to a prior judicial determination of what may be enjoined as obscene may not be circumvented either through a blanket injunction which prohibits, in essence, the sale of “all obscene materials” or which places the burden of making this determination upon the vendor.

We reject respondent’s contention that petitioners must reapply to the trial court in order to have the special condition stricken from the order. We further would conclude from a reading of the entire rule regarding pre-trial release that the court has ample authority under the rules for revocation or increase of bail “for good cause” (Rule 3.130(f), (h)). With the special conditions stricken defendants still remain subject to rearrest for violation of any and all criminal laws, and they may be appropriately dealt with at such time as that event occurs.

That portion of the order reducing bond containing the special condition above referred to is hereby reversed, and shall be deemed of no force and effect, without prejudice to further consideration by the trial court of its own motion, or upon motion of the state, to impose such other conditions of release or additional security for appearance of the defendants as the court may deem necessary after due notice and hearing.

ROBERT P. SMITH, Acting C. J., and ERVIN and LARRY G. SMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John KELLY, Appellant, v. METROPOLITAN DADE COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 78-1788.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Freiden & Goldfarb, Greene & Cooper and Robyn Greene, Miami, for appellant.
    Stuart L. Simon, County Atty., and Jack M. Sobel, Asst. County Atty., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal by the plaintiff from a final judgment pursuant to a jury verdict for the defendant. Five points are presented, the first two of which urge error upon the admission of the testimony of a witness for the defendant. The first argument presented concerns the fact that the witness’s evidence was incompetent, and the second argument concerns the fact that the witness’s name was not on the pretrial inventory. Our review of the record fails to substantiate the plaintiff’s claim that the testimony was incompetent. See Florida Power Corporation v. Wenzel, 113 So.2d 747 (Fla. 2d DCA 1959); see also Davis v. State, 348 So.2d 1228 (Fla. 3d DCA 1977). With regard to the plaintiff’s second ground for exclusion of testimony, we find reversal on this basis to be precluded by the principles of waiver or invited error as set forth in Nadler v. Home Insurance Company, 339 So.2d 280 (Fla. 3d DCA 1976).

The point urging error upon the denial of plaintiff’s motion for a new trial because the jury’s verdict was against the manifest weight of the evidence does not present reversible error on this record. See Williams v. Bryant, 301 So.2d 505 (Fla. 3d DCA 1974); and B. W. Butler, Inc. v. Anderman, 279 So.2d 907 (Fla. 4th DCA 1973).

The remaining point going to the court’s refusal of the plaintiff’s motion to interview a juror does not present error. Cf. Shad v. Florida East Coast Railway Company, 236 So.2d 477 (Fla. 1st DCA 1970), and Petroleum Carriers Corp. v. Summerlin, 112 So.2d 12 (Fla. 2d DCA 1959).

Affirmed.


author: STETTIN, HERBERT, Associate Judge.

text:
    CENTURY VILLAGE, INC., Appellant, v. WELLINGTON, E, F, K, L, H, J, M, AND G CONDOMINIUM ASSOCIATIONS, Appellees.
    No. 77-2529.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    John B. McCracken of Jones, Paine & Foster, West Palm Beach, for appellant.
    Rod L. Tennyson of Ombres, Powell, Tennyson & St. John, West Palm Beach, for appellees.
   STETTIN, HERBERT, Associate Judge.

Appellant Century Village, Inc. along with Cenvill Communities, Inc. are the lessors of substantially identical 99-year leases of recreational facilities to the appellees. By a fifth amended complaint the appellees attacked the validity of the leases upon various grounds; including as to Count II, the allegation the lease agreements had first been executed by appellants and the appellee-condominium associations, therefore the property could not be leased again to the appellee-condominium unit owners individually. Count II of the fifth amended complaint sought declaratory judgment as to the rights and responsibilities of the parties under the leases with individual unit owners, and a declaration that they be held void.

Appellants moved to dismiss this count for failure to state a cause of action for declaratory relief. The motion was denied, as was a petition for rehearing, and they now seek relief by interlocutory appeal from the lower court’s order which stated:

“6. Count II of the fifth amended complaint among other things seeks this Court to declare and adjudicate the plaintiffs’ rights under the Long Term Recreational Lease and also to declare the Lease and its obligations to be unlawful and unenforceable as against the class plaintiffs relying primarily upon the case of Ackerman v. Spring Lake of Broward, Inc., 260 So.2d 264 (Fla. 4th DCA 1972). When one reads that case together with Wechsler v. Goldman, 214 So.2d 741 (Fla. 3d DCA 1968), it is apparent the terms of the Declaration of Condominium and the Lease in question are crucial. This Court set forth above certain provisions of each of those documents which incorporates the other. The Long Term Lease which is attached to the fifth amended complaint specifically provides in part as follows:
T—DEMISE—-The lessor does hereby lease, let and demise, but not exclusively so, and the lessee does hereby lease of and from the lessor, but not exclusively so, certain real property situate and lying in Palm Beach County, Florida, more particularly described as follows:’. Therein follows the legal description. (emphasis supplied)
VI—Use or (sic) Premises—Lessee does not have exclusive right of possession provides:
‘It is understood and agreed between the parties hereto that the demised premises, during the continuance of this lease, may be used and enjoyed and occupied by the lessee on a non-exclusive basis, in common with other persons, entities, corporations who may be other lessees of the demised premises, primarily for recreational purposes, at all times subject to rules and regulations promulgated by the lessor or lessor’s successor in interest in authority
A justifiable issue exists as to whether the corporate defendants may submit to condominium ownership and use the recreational facilities on a non-exclusive basis and retain a sufficient possessory interest to lease the same.”

Appellants claim that the recreation areas covered by the long term leases were never submitted to condominium ownership is refuted by the leases themselves, which clearly reveal a description of the property demised together with the intention to lease the property to the condominium association for condominium purposes, and the Declaration of Condominium incorporating the leases. That is “submission” sufficient for the purposes of withstanding a motion to dismiss.

More troublesome is the non-exclusive language of the demise clause in the lease. There appears to be no legal or logical reason why a lessor may not retain an interest in leased realty sufficient to permit releasing of the same property on a non-exclusive basis. See Boyer, Vol. 2 Florida Real Estate Transactions, 1977 Ed., § 35.03(3), p. 1215; 49 Am.Jur.2d Landlord and Tenant, § 226, p. 245; and 51C C.J.S. Landlord & Tenant § 311, p. 785. This is particularly true where the lease is to a condominium association, and the releasing to its individual members. Neither the case law nor the Florida Condominium Act forbids it.

Indeed, the appellees concede the unit owners are bound by their individually signed lease agreements but only as guarantors of performance by the condominium association. This interpretation is strained in light of clear language in the leases undertaking direct obligations by lessee-signatories. There is no doubt of rights or responsibilities on this point to be determined by declaratory judgment. Acker-man, supra, holds only that a lessor who retains no possessory interest in leased property may not thereafter validly lease it to others. Here the lessor did specifically retain a possessory interest.

The order denying the motion to dismiss Count II of the fifth amended complaint is therefore reversed for entry of an order of dismissal.

ANSTEAD and DAUKSCH, JJ., concur.


author: BERANEK, Judge.

text:
    Darrell HOFER, Appellant, v. SOUTHLAND CORPORATION and Travelers Insurance Company, Appellees.
    No. 78-52.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Rehearing Denied June 28, 1979.
    S. Victor Tipton of Tipton & Melton, P. A., Orlando, and Howard L. Garrett of Garrett & Garrett, Tampa, for appellant.
    Jennings L. Hurt, III of D’Aiuto, Walker & Buckmaster, P. A., Orlando, for appellees.
   BERANEK, Judge.

This is a plaintiff’s appeal in a personal injury action. After a jury trial, the court directed a verdict against plaintiff and entered final judgment for defendants/appel-lees. We find this case to be governed by the rationale of Florida Power & Light Company v. Price, 170 So.2d 293 (Fla.1964), and affirm.

The defendant owned land and was in the process of having a building constructed on it. A general contractor was performing the work pursuant to contract. The general contractor employed a roofing subcontractor and an air conditioning subcontractor among others. Plaintiff was an employee of the air conditioning subcontractor and was injured on the job by the negligence of an employee of the roofing subcontractor. Plaintiff sued the owner alleging vicarious liability only. There was no contention of any actual negligence or fault by the owner/defendant.

Plaintiff contends the roofing work was inherently dangerous and that the owner is liable under a nondelegable duty regarding inherently dangerous work by an independent contractor.

The case of Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla.1964), involved a suit by an injured employee of an independent contractor against an owner. In reaching its conclusion of no liability, the Supreme Court stated as follows at page 298:

We hold that liability flowing from operation of the doctrines of dangerous in-strumentalities and inherently dangerous work is subject to the exception that where the defendant owner contracts with an independent contractor for the performance of inherently dangerous work and the latter’s employee is injured by a dangerous instrumentality owned by the defendant which is negligently applied or operated by another employee of the independent contractor but wholly without any negligence on the part of the defendant owner, the latter will not be held liable.

We hold the same rationale applies to bar liability in the instant situation where the employee of one subcontractor injures the employee of another subcontractor while both are engaged in the common contractual labor under the supervision and control of the general contractor. Again we stress that here there was no contention of negligence by the defendant owner. The final judgment is, therefore, affirmed.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

      . For the purposes of this opinion, it is assumed that the roofing work in question was inherently dangerous.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Petitioner, v. William S. BYRD and Nellie Byrd, Respondents.
    No. 78-1619.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Robert A. Wohn, Jr., of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P. A., Rockledge, for petitioner.
    Jack A. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso & Mosley, P. A., Cocoa Beach, for respondents.
   BERANEK, Judge.

This petition for common law certiorari by the defendant/insurance company seeks to review an order of the trial court refusing to strike Count II of a second amended complaint. This count alleges a cause of action against the insurance company defendant for compensatory damages for the infliction of mental distress and for punitive damages. Count I of the complaint alleges a cause of action for breach of an insurance contract. Count II appears to be based solely on breach of contract alleged in Count I. We decline to issue a writ of certiorari because we find that the defendant will have full and adequate remedy by appeal after final judgment if such becomes necessary. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975), and Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975).

In denying certiorari we do not reach the merits and therefore do not determine whether Count II does state a cause of action for infliction of mental distress and for punitive damages.

The defendant argues that the trial court’s order refusing to dismiss the count for mental distress and punitive damages will cause injury for which a remedy by appeal will be inadequate. This argument is based on a spill-over theory. Defendant reasons that evidence of mental anguish and defendant’s net worth which may be proper under Count II will influence the jury under Count I. If such a demonstration can be made, it can be remedied by appeal after final judgment rather than based on a rather abstract argument that such harm may occur. We therefore conclude that certiorari jurisdiction has not been demonstrated.

CERTIORARI DENIED.

CROSS and DAUKSCH, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    STOWERS EQUIPMENT RENTAL COMPANY, Appellant, v. Donald L. BROWN et ux., Nucor Corporation, Orange County Steel, Inc., et al., Appellees.
    No. 78-2092.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Frank M. Palmour, of Gurney, Gurney & Handley, P. A., Orlando, for appellant.
    Donald L. Gattis, Jr. of Wells, Gattis & Hallowes, P. A., Orlando, for appellee-Nu-cor Corp.
    Michael P. McMahon of Akerman, Sen-terfitt & Eidson, Orlando, for appellee-Or-ange County Steel, Inc.
   DOWNEY, Chief Judge.

This interlocutory appeal was perfected to review an order denying a motion for change of venue filed by a third party defendant, which was also a defendant in the main case.

The following recitation of the factual situation is substantially taken from the brief of appellee, Nucor Corporation:

“Plaintiff in this action, DONALD L. BROWN, claims injuries sustained in an accident on a construction site in Hillsbor-ough County, Florida on or about July 30, 1975. BROWN and his wife filed a Complaint against NUCOR CORPORATION, a foreign corporation authorized to do business in the State of Florida, and VUL-CRAFT CORPORATION, a division of NU-COR CORPORATION (hereafter referred to as “NUCOR”), alleging that Brown was injured due to negligence on the part of NUCOR in the prefabrication of structural steel used on the construction project. Plaintiffs, residents of Orange County, Florida, filed suit in the Circuit Court in and for Orange County on April 22, 1976. Defendants filed their Answer on September 16, 1977 denying each and every allegation of the Complaint and affirmatively alleging Plaintiff was negligent in his conduct, thereby contributing to his accident and injuries.
“On March 24, 1978, with leave of court, Defendants filed and served a Third Party Complaint against ORANGE COUNTY STEEL, INC. (Plaintiff’s employer), STRUCTURAL STEEL OF FLORIDA, INC. (a subcontractor on the project), VAN-CO, INC. (the general contractor) and STOWERS EQUIPMENT RENTAL CO. (supplier of the crane and operator involved in the accident). This pleading alleged that the four Third Party Defendants were Florida corporations doing business within this state and that NUCOR was entitled to recovery against each based upon legal theories of indemnity and contribution. On April 18, 1978, Plaintiffs filed an Amended Complaint naming STOWERS EQUIPMENT RENTAL CO. as an additional defendant and alleging that STOWERS contributed to Plaintiff’s injuries by negligently operating its crane.
“On May 11, 1978 STOWERS simultaneously filed and served a Motion for Change of Venue, Motion to Dismiss the Third Party Complaint, and Answer, Affirmative Defenses and Cross-claims against the other Third Party Defendants.
“After consideration of both oral arguments and written briefs, the Motion for Change of Venue was denied by Order dated August 30, 1978 from which STOWERS has taken this Interlocutory Appeal.”

We perceive two questions involved in this appeal. The first question is whether a third party defendant has standing to raise the venue privilege afforded defendants by Chapter 47 of the Florida Statutes. Secondly, when a third party defendant is subsequently named as a primary defendant by the plaintiff in an amended complaint is he thereby entitled to assert the venue privilege accorded to all other primary defendants?

The first question has been treated in three Florida cases and a host of Federal eases. As a result of numerous cases decided under Federal Rule 14, from which Florida Rule of Civil Procedure 1.180 was derived, three views have evolved regarding the right of a third party defendant to assert the statutory venue privilege afforded defendants: 1) a third party defendant may assert the venue privilege to be sued elsewhere just as though the third party claim were an independent action; 2) the third party defendant may not assert the venue privilege because the third party proceeding emanated from the same subject matter as the original claim and is therefore ancillary to the original action; 3) third party claim is ordinarily ancillary to the original action and thus the venue of said claim is controlled thereby, but the granting or denial of the right to proceed in a different venue is within the sound discretion of the trial court.

One of the Florida cases, City of Braden-ton, supra note 2, seems to espouse the first view holding that a third party defendant can assert the privilege, without discussing any possible variations in the rule. The other two cases, Dorr-Oliver, Inc., and Keller Building Products, supra note 2, seem to follow the third view. However, each of those cases contained the admonition that the privilege should not be extended to third party defendant unless he could show great inconvenience. As the court said in the Keller case, supra :

“We think the third view is both sound and workable. Under this approach the trial judge still retains discretion to govern the litigation. However, as stated in Dorr-Oliver, the trial court should not deny third parties the right to bring actions at the venue of the original proceedings unless the party seeking abatement shows that great inconvenience would result.” 347 So.2d at 729.

With emphasis upon that admonition, we would align ourselves with the Florida and Federal cases which approve the third view involving the court’s discretion. Having done so, that would ordinarily conclude our inquiry resulting in an affirmance of the trial court’s order. However, the second question previously mentioned causes us some problem.

The appellant is not simply a third party defendant. After it had been brought into the litigation in response to the third party complaint the original plaintiff, Brown, filed an amended complaint and named appellant as a defendant in the original or main action. One might argue that this elevates appellant to the status of an “original defendant” as to whom the venue statutes unquestionably apply. Fortunately, that issue has been treated by a few of the federal courts and by Wright & Miller in their work on Federal Practice & Procedure. In Volume 6 of that work at page 243 the author addresses this procedural problem:

“If plaintiff exercises the right given him by Rule 14(a) to assert a claim against the third-party defendant, the generally accepted view is that independent jurisdictional grounds are necessary. It might be argued that if the claim must be independent for jurisdictional purposes, it also should be regarded as independent for venue purposes. This analogy is a faulty one, however. Inasmuch as the third-party defendant already is participating in the lawsuit because of the third-party claim, there is no added inconvenience in requiring him to defend an additional claim in the same forum, especially one that arises from the same transaction; thus, venue over a claim by plaintiff against the third-party defendant should be held to be ancillary if the court has subject matter and personal jurisdiction over it.”

See also: Abramovitch v. United States Lines, 174 F.Supp. 587 (S.D.N.Y.1959); Thompson v. United Artists Theatre Circuit, Inc., 43 F.R.D. 339 (S.D.N.Y.1967). The situation envisioned in the foregoing excerpt is identical to the one presented here. After the defendant became a party to the litigation via third party practice, the original plaintiff amended his complaint and thus made the third party defendant a primary defendant in the original plaintiff’s amended complaint. We find merit in the conclusion that under those circumstances, the defendant, already participating in the lawsuit, is put to no additional inconvenience to defend the main claim asserted by the original plaintiff.

In view of the foregoing we find the trial court ruled correctly in denying appellant’s motion for change of venue since appellant made no attempt to show anything like the serious inconvenience necessary to justify the trial court in the exercise of its sound discretion granting a change in venue.

AFFIRMED.

CROSS and ANSTEAD, JJ., concur.

      . Stowers alleged its principal place of business was in Hillsborough County and that it had no office in Orange County.

      . Keller Building Products of Sarasota, Inc. v. Pan American Aluminum Corp., 347 So.2d 728 (Fla. 2nd DCA 1977); Dorr-Oliver, Inc. v. Linder Industrial Machinery Company, 263 So.2d 237 (Fla. 3rd DCA 1972); City of Bradenton v. Finley, 208 So.2d 675 (Fla. 3rd DCA 1968).

      . For a compilation of many of the Federal cases see 6 Wright & Miller, Federal Practice & Procedure § 1445 at 240 et seq. (1971).

      . Trawick in his work on Florida Practice & Procedure § 5-13 (6th ed. 1978) criticises the Florida cases which follow this view.


text:
    John WAISWILOS, Individually, and Allstate Insurance Company, Appellants, v. Jean Marie FEACHER, Appellee.
    No. 78-2614.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.

      Leighton D. Yates, Jr. of Maguire, Voo-rhis & Wells, Orlando, for appellants.
    James T. Golden, Sanford, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order dated November 7,1978, setting aside an order of dismissal for lack of prosecution dated December 21, 1972.

Appellants moved to dismiss the cause for lack of prosecution, and an order was entered dismissing the cause pursuant to Fla. R.Civ.P. 1.420(e) then in effect. During the year preceding the motion to dismiss however, a pluries summons, without any return thereon, had been filed in the cause without explanation, since long before the filing of the summons the defendants had answered.

At the time of the dismissal no effort was made by the appellee to reinstate the cause within one month under Rule 1.420(e), nor was an appeal taken from the dismissal. Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA 1973).

Over five years subsequent to the 1972 order of dismissal, appellee served its joint motion to set aside the order dismissing the cause and petition for reinstatement of the cause of action; and on November 7, 1978, the trial court granted the motion “on the grounds that said Order was void in that the evidence on the face of the record indicated some action had been taken within one year prior to filing of the motion by the Defendants,” and granted the petition for reinstatement.

The first point on appeal concerns this court’s jurisdiction to review the interlocutory appeal, appellant contending that relief having been granted appellee pursuant to Fla.R.Civ.P. 1.540, the appeal was proper, while appellee asserts that Rule 1.540 is not applicable because both the motion to set aside and the petition to reinstate relied on Rule 1.420(e).

The ground of appellee’s motion to set aside the order dismissing the cause was that the order was void as a matter of law because of the filing of the pluries summons; the order of the court granted the motion as aforesaid on the ground that the order was void. Rule 1.540(b)(4) provides for relief where the judgment or decree is void. It therefore appears that the order grew out of Rule 1.540 and thus is subject to review under Fla.R.App.P. 9.130(a)(5).

The second point on appeal is the propriety of the order setting aside the order of dismissal. An order based on a matter within the issues raised by the pleadings is not void if the court as organized existed legally and had jurisdiction of the parties. Varnes v. Kirk, 251 So.2d 324 (Fla. 1st DCA 1971). Such was true here; the order of the court dismissing the action in 1972 was not void, but merely erroneous and relief was not available to appellee under Rule 1.540(b)(4). Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978). Even so, such rule requires that a motion for reason that the judgment or decree is void must be made within “a reasonable time.” A motion filed over five years after the dismissal was not filed within such reasonable time. Trawick’s Fla.Prac. and Proc., § 26-8, p. 414.

Accordingly, the order granting appel-lee’s motion to set aside the order dismissing the cause for lack of prosecution and granting reinstatement is hereby reversed.

DOWNEY, C. J., and ANSTEAD, J., and WARREN, LAMAR, Associate Judge, concur.


text:
    Jeffrey D. WILLETS, Petitioner, v. Jack FRIED, Chairman, Fred Welker, Member, and George Bunnell, Member, Acting as and Constituting the City of Fort Lauderdale, Florida Civil Service Board and the City of Fort Lauderdale, Florida, a Municipal Corporation of the State of Florida, Respondents.
    No. 79-530.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Rehearing Denied June 7, 1979.
    Richard L. Kopel, Hollywood, for petitioner.
    Philip Shailer, City Atty. and Donald H. Norman of Ross, Norman & Cory, P. A., Fort Lauderdale, for respondents.
   BERANEK, Judge.

Petitioner, a former City of Fort Lauder-dale policeman, seeks to overturn his dismissal from the city police force. Petitioner was advised of his dismissal by letter from the City Manager which contained the reasons for dismissal. His release from the police force was upheld by the Departmental Review Board and petitioner then appealed to the City Civil Service Board. This Board held an evidentiary hearing and sustained petitioner’s dismissal.

Petitioner then sought review by writ of certiorari filed in the Circuit Court. The Circuit Court assumed jurisdiction and by order of January 10, 1979, the Court reviewed the case and denied certiorari. The Circuit Court was of the opinion that no error had been demonstrated and that dismissal was proper.

A further petition for certiorari has now been filed with this Court. We initially point out that the scope of review in such a proceeding is relatively narrow. As stated by the Third District Court of Appeal in Hardin v. City of North Miami Beach, 364 So.2d 843 (Fla. 3d DCA 1978):

We are not reviewing here the correctness of the decision of the Civil Service Board, but rather the circuit court’s action in denying the petition for writ of certiorari, and in this regard we are limited to the question of whether the circuit court departed from established law in finding against the petitioner. See Nugent v. Florida Hotel and Restaurant Commission, 147 So.2d 606 (Fla. 2d DCA 1962).
Within this narrow parameter of review, we find no reversible error.

In reviewing this case from the aforementioned point of view, we do not find a departure from the essential requirements of law. Such a demonstration is necessary before jurisdiction for certiorari review exists. See Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979), and Kennington v. Gillman, 284 So.2d 405 (Fla. 1st DCA 1973).

Certiorari is hereby denied.

CROSS and DAUKSCH, JJ., concur.


author: MARCUS, Justice.

text:
    Mr. and Mrs. Alfred L. LAMBERT, Sr. v. DONALD G. LAMBERT CONSTRUCTION COMPANY, Donald G. Lambert, Charles R. Bell, and Prestige Casualty Company.
    No. 63206.
    Supreme Court of Louisiana.
    April 9, 1979.
    Robert J. Young, Jr., Young, McMahon & Levert, New Orleans, for defendant-respondent.
    Wayne Douglas Mancuso, Metairie, for plaintiff-applicant.
   MARCUS, Justice.

Plaintiffs, Mr. & Mrs. Alfred L. Lambert, Sr., instituted this action to recover damages sustained as a result of an intersec-tional collision between an automobile driven by Mr. Lambert and a dump truck driven by defendant, Charles R. Bell. It was alleged that the accident was caused by the negligence of Bell while operating said dump truck in the course and scope of his employment with defendants, Donald G. Lambert Construction Company and Donald G. Lambert, and insured by defendant, Prestige Casualty Company, at the time of the accident.

The trial court rendered judgment in favor of Mr. Lambert and against defendants, finding that Bell’s negligence was the sole proximate cause of the accident. It awarded Mr. Lambert $10,000 in general damages and $1,319 in special damages (the amount stipulated by counsel). In addition, the court awarded Mr. Lambert $6,000 for damages to his vehicle. The claim of Mrs. Lambert for damages for mental anguish and distress caused by the accident was dismissed.

The court of appeal affirmed the trial court’s finding on liability and award for general damages. It amended the award of special damages from $1,319 to $1,369 to conform with the stipulation of counsel at trial. It reversed and set aside Mr. Lambert’s recovery of $6,000 for damages to the automobile driven by him at the time of the accident. The court reasoned that the automobile was owned by a separate corporate entity and not by Mr. Lambert personally. Hence, the court concluded that Mr. Lambert was not the proper party plaintiff to assert a claim for loss of the damaged vehicle. The lower court judgment dismissing Mrs. Lambert’s claim for damages was affirmed. On application of plaintiffs, we granted certiorari to review the correctness of the finding by the court of appeal that Mr. Lambert was not the proper party plaintiff to seek damages for the loss of the vehicle.

Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts. La.Code Civ.P. art. 681. The exception of no right of action raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted. Stevens v. Johnson, 230 La. 101, 87 So.2d 743 (1956) (per curiam on application for rehearing); Ritsch Alluvial Land Co. v. Adema, 211 La. 675, 30 So.2d 753 (1947); Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So.2d 375 (1945). Moreover, the exception of no right of action, or no interest in the plaintiff to institute the suit, is a peremptory exception which may be pleaded at any state of the proceeding in the trial court prior to a submission of the case for a decision or for the first time in the appellate court if pleaded prior to a submission of the case for a decision if proof of the ground of the exception appears of record and even may be noticed by either the trial or appellate court of its own motion. La.Code Civ.P. arts. 927, 928 and 2163; Stevens v. Johnson, supra; see also McMahon, The Exception of Want of Interest, 11 Tul.L.Rev. 527 (1937). In considering this issue, we are mindful that the articles of our code of civil procedure are to be construed liberally and with due regard for the fact that forms of procedure implement the substantive law and are not an end in themselves. La.Code Civ.P. art. 5051.

The record reflects that the automobile (a 1974 Cadillac) driven by Mr. Lambert at the time of the accident was purchased on May 14,1975, from Pontchartrain Motor Company, Inc. Mr. Lambert testified that, while he paid for the vehicle by a cheek drawn on an account of “Lambert’s in Metairie, Inc.,” a corporation owned and operated by him, the funds used to pay for the vehicle were his personal ones which had been commingled with those of the corporation. Although the invoice and re-assignment of the title made on the date of purchase reflect that “Lambert’s Datsun” was the purchaser of the automobile, Mr. Lambert stated that “Lambert’s Datsun” was nothing more than a “figment,” i. e., that there was no such company as “Lambert’s Datsun.” Mr. Lambert maintained that he was the owner of the vehicle and had sole personal use of it since the date of purchase. He also stated that he had retained possession of the title to the vehicle at all times. It should be further noted that two separate repair estimates of damage to the automobile introduced in evidence (one by Mr. Lambert and the. other by defendants) denote Mr. Lambert as the owner.

Based on the evidence in the record, we find, as did the trial court, that Mr. Lambert sufficiently proved that he was the owner of the automobile and as such had a real and actual interest in bringing an action to recover damages to the vehicle as a result of the accident. Accordingly, the court of appeal erred in holding otherwise.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to reinstate the award of $6,000 made by the trial court for damages to Mr. Lambert’s vehicle. As amended, the judgment of the court of appeal is affirmed.

      . 371 So.2d 1167 (La.App. 4th Cir. 1978).

      . 363 So.2d 1389 (La. 1978).


text:
    STATE of Louisiana v. Kirk P. VOSLOH.
    No. 64416.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Kirk P. Vosloh applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 75-355.

Writ granted on authority of C.Cr.P. 901 and State ex rel. Clark v. Hunt, 337 So.2d 438 (La.1976). Parole revocation set aside and case remanded to trial court for further proceedings according to law.


text:
    MARATHON PIPE LINE COMPANY v. Edward C. HOBGOOD et al.
    No. 63812.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Edward C. Hobgood, et al. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. Court of Appeal No. 12338.

Writ granted. The case is remanded to the Court of Appeal to reconsider its judgment in light of the court’s decision in Marathon Pipe Line Co. v. Pitcher, La., 368 So.2d 994, rendered March 5, 1979, rehearing denied April 9, 1979.


text:
    STATE of Louisiana v. Michael JASON.
    No. 64461.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Michael Jason applying for reconsideration. Parish of Jefferson. No. 78-136.

Motion for reconsideration granted. Application granted in part and denied in part. Trial judge is ordered to reconsider his ruling as to the statement or non-statement in light of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Otherwise denied; adequate remedy by appeal in event of conviction.

SUMMERS, C. J., dissents from the order.


text:
    STATE of Louisiana v. Albert CLAIBORNE and Shelby Savoie.
    No. 64705.
    Supreme Court of Louisiana.
    May 17, 1979.
   In re State of Louisiana through District Attorney, Ossie Brown, applying for supervisory writs and stay order. Parish of East Baton Rouge. No. 4-78-602.

Writ granted. The trial court’s proposed instructions do not comply with our decision in State v. Jackson, La., 370 So.2d 570, handed down April 19, 1979.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    FOREMOST INSURANCE COMPANY v. NATIONAL TRAILER CONVOY, INC., et al.
    No. 9694.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Dissenting Opinion May 11, 1979.
    Ralph R. Alexis, III, Porteous, Toledano, Hainkel & Johnson, New Orleans, counsel for National Trailer Convoy, Inc., and Midland Ins. Co., defendant-appellant.
    T. Michael Masterson of Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, counsel for Foremost Ins. Co., plaintiff-appellee.
    Before LEMMON, BOUTALL, BEER, (SAMUEL and GARRISON, JJ.)
   BOUTALL, Judge.

This is a case involving the validity of a limitation on liability provision in a bill-of-lading.

Briefly stated the facts are these: On June 23, 1973, Victor Suniga delivered a mobile home to National Trailer Convoy, Inc., appellant in this action, for transportation from Alexandria, Louisiana to Bakers Field, California. While en-route, the mobile home caught fire completely destroying' it and its contents. It is an uncontested fact that this fire was caused by the negligence of the appellant.

Foremost Insurance Company, the insurer of Suniga, brought suit as subrogee against National Trailer for damages for the loss of the trailer and contents. The liability of National Trailer was stipulated by both parties at trial. The trial judge rendered judgment in favor of Foremost Insurance Company in the amount of $7,057.49. National Trailer then took this appeal contending that: 1.) Suit was not timely instituted and alternatively 2.) liability was limited under the terms of the bill-of-lading.

I. THE TIMELY INSTITUTION OF SUIT:

The bill-of-lading in this case contains the following provision:

“Sec. 2(b) As a condition precedent to recovery a claim for any loss or damage, injury or delay, must be filed in writing with carrier within nine (9) months after delivery to consignee as shown on face hereof, or in case of failure to make delivery, then within (9) months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date on this Bill of Lading. Where a claim is not filed or suit is not instituted thereon in accordance with the foregoing provisions, carrier shall not be liable and such claim will not be paid.”

This provision was derived from the statutory authority granted to interstate carriers by the Interstate Commerce Act, found at 49 U.S.Code § 20(11).

Appellant admits that the first condition was met in that a timely claim was filed with the carrier. It contends, however, that the second condition concerning institution of suit has not been fulfilled. It is uncontested that suit was filed on July 18, 1974, approximately 10 months after the denial of the claim. Service of process was never effected on the appellant, however, and the first notice of suit came approximately 3 years from the-date of loss. It is asserted that the mere filing of the suit did not satisfy the contractual requirement.

In determination of this question, we must look to federal law since appellant is clearly correct in its assertion that federal law controls. See Neuss, Hesslein & Company, Inc. v. Louisville & Nashville R.R. Company, 221 La. 296, 59 So.2d 195 (1952). Rule 3 of the Federal Rules of Civil Procedure states that: “A civil action is commenced by filing a complaint with the court.” On its face, this rule provides that the statute of limitations is tolled merely by filing suit, as appellees have done in this case. Some federal courts, however, have imposed additional qualifications on the unambiguous text of this Rule.

In Newhart v. Hellick Coffee Company, D.C., 325 F.Supp. 1047 (1971) the court stated that although the filing of a complaint is sufficient to toll the statute of limitations under Rule 3, a plaintiff must exercise “due diligence” to perfect service after the filing to avoid dismissal of the complaint. See also U. S. v. Wahl, D.C., 406 F.Supp. 1396 (1976).

Other federal courts, however, adhere to the text of the Rule. In Moore Company v. Richardson Carbon & Gasoline Company, 347 F.2d 921 (8th Cir. 1965), the court, after a discussion of the legislative history of Rule 3, stated:

“No reasonable basis exists for engraft-ing upon the rule or statute a condition that summons be served with diligence. If Congress or the rule makers had intended to impose such condition, it would have been a simple matter to include the condition by appropriate language in the rule or the statute. As heretofore pointed out, the Rules Committee deliberately chose not to impose any such condition.”

See also Weaver v. United California Bank, D.C., 350 F.Supp. 1373 (1972).

We feel that the Moore Rule is preferable, at least in the context of this case. The contractual and statutory requirements of notice to carriers even before the statute of limitations begins to run mitigates the prejudice to the defendants which underlies the Hellick and Wahl reasoning. We find therefore that the filing of suit by appellees tolled the statute of limitations and we reject appellant’s contentions to the contrary. See also Pratt v. Durkop, 356 So.2d 1278 (Fla.App.1978).

II. THE LIMITATION OF LIABILITY PROVISION:

A section of the Freight Tariff reads as follows:

“Sec. 10 It is agreed that, subject to tariffs in effect, and the other conditions of this carriage, that the carrier shall be liable for loss of the household and personal effects and/or furnishings not a part of the trailer at point of manufacture for a value not exceeding Two Hundred Fifty Dollars ($250) unless the shipper shall declare the amount of valuation in excess of $250 and shall pay an additional charge at the rate provided in the tariff presently in effect.”

In accordance with this, a provision of the contract between the parties reads:

“Trailers for living purposes exclusive-íy:
“Unless a greater value for the household and personal effects and/or furnishings, not a part of the trailer at point of manufacture, included in this shipment, is declared on this Bill of Lading the shipper hereby releases such property to a value not exceeding Two Hundred Fifty Dollars ($250.00).
“I declare the excess valuation of personal effects and furnishing to be $_
“Signed: - (Shipper or Agent)”

It must be noted that the contract is lettered mainly in black but that the quoted provision is lettered in red and is clearly visible on the face of the contract. No excess valuation or signature is present in that section.

These provisions are authorized by the Interstate Commerce Act, supra, which reads in pertinent part:

“ * * * any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void: (emphasis added) Provided, That if the loss, damage, or injury occurs while the property is in the custody of a carrier by water the liability of such carrier shall be determined by the bill of lading of the carrier by water and by and under the laws and regulations applicable to transportation by water, and the liability of the initial or delivering carrier shall be the same as that of such carrier by water: Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers; second, to property, except ordinary livestock, received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section 10 of this title; * *

This statute specifically authorizes limitation of liability provisions where choice of rates is offered varying with the value of the property shipped. That is precisely the situation here.

Appellee argues that a carrier may not limit its liability for loss when such loss is the result of the carrier’s own negligence. The Louisiana cases cited by appellee are inapplicable since federal law controls. See Neuss, supra. Further, it is difficult to see how federal law prohibits such a limitation when it is specifically authorized by statute. It is true, as appellee points out, that there is jurisprudence to the effect that agreements which exempt a common carrier from liability caused by its own negligence are void. These decisions, however, point out that the Rule stated has no application to provisions limiting liability which are authorized by statute. See Southwestern Sugar & Molasses Company, Inc. v. River Terminals Corporation, 360 U.S. 411, 79 S.Ct. 1210, 3 L.Ed.2d 1334 (1959), footnote 9 at 420; and Lux Art Van Service, Inc. v. Pollard, 344 F.2d 883 (9th Cir. 1965) Footnote 8 at 887. We therefore find that the limitation on liability provision applies. The $5000 claim for household goods and personal articles should be reduced to $250.00.

IT IS THEREFORE ORDERED that the judgment below is amended to award $2,057.49 for the trailer plus $250 for the contents making a total of $2,307.49, with interest and costs and, as amended, is affirmed. Costs of this appeal to be borne by the appellee, Foremost Insurance Company.

AMENDED AND AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissents and assigns reasons.

I agree that a carrier may validly limit its liability in accordance with the cited statute. However, the limitation is only valid if the shipper is afforded an option to obtain greater coverage at an additional charge. The critical issue in this case is whether the shipper was effectively afforded such an opportunity.

The matter was submitted on documentary evidence and stipulations. On the bill of lading, the only place the shipper signed was on the line below the following statement:

“I hereby authorize this shipment and make the declaration of values (if any) and agree to the contract terms and conditions hereof.”

The bill of lading contains no clear language referring to any limitation of the carrier’s liability. The entire section in red print (referred to in the majority opinion) is reproduced below:

The vague language about releasing property to a value of $250.00 cannot reasonably be construed to inform a shipper that the carrier will not pay him more than $250.00 in the event of loss or destruction unless he pays a greater fee and obtains additional coverage. A casualty insurer would be laughed out of court if it tried to obtain a limitation of liability with such language.

In my opinion the carrier in this case has failed to prove that the shipper was ever afforded a meaningful opportunity to declare a higher valuation for his personal effects and furnishings and, more significantly, was ever informed that the carrier’s liability was limited to $250.00 if a greater value was not declared.

The carrier who seeks to invoke the limitation of liability should have the burden of proving not only that the shipper has been afforded a meaningful opportunity to obtain greater coverage at an additional charge, but also that the shipper has specifically rejected the option. Unless the burden is placed on the carrier to demonstrate that the option has been revealed to the shipper and has been rejected, an average shipper will have no reasonable opportunity to discover the limitation and will be at the mercy of the carrier’s clerical employees. Under such circumstances the shipper is effectively deprived of the requisite option.

Finally, I would reject the carrier’s argument that the shipper is presumed to know rates are based on declared value, and I would hold the carrier’s failure to inform the shipper of this fact amounts to an attempt by the carrier to absolve itself of the consequences of its own negligence. New York, N. H. & Hartford R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500 (1953).

      . Section 10, quoted in the majority opinion, is found on page 101 of the tariff filed with the Interstate Commerce Commission.

      . The reproduced section of the bill of lading just above the section at issue provides for acts of God coverage and requires the shipper to initial one of two blanks in order to indicate that he did or did not desire coverage. The absence of initials in either blank, indicating the shipper was not afforded an opportunity to accept or reject this coverage, strengthens the conclusion that the shipper was simply instructed to sign and pay the calculated fee, without explanation or opportunity as to any coverage options.

      .A blank signature line (on which the shipper would have signed if he was informed of and accepted the option to declare a higher value) has no probative value as to the fact of specific rejection.


author: DOMENGEAUX, Judge.

text:
    James C. ARCENEAUX, Plaintiff and Appellant, v. Drew DOMINGUE, Jimmy Bearb and Allstate Insurance Company, Defendants and Appellees.
    No. 6357.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.
    Raleigh Newman, Lake Charles, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy by V. Farley Sonnier, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, SWIFT, and DOUCET, JJ.
   DOMENGEAUX, Judge.

This rear-end collision tort suit was before us previously. In an unpublished opinion, authorized by Rule XII-A of the Uniform Rules, Courts of Appeal, and handed down March 7, 1978, we affirmed a unanimous jury verdict in favor of the defendants. Therein we stated, in pertinent part:

“Applying the rationale of Canter v. Koehring Company, 283 So.2d 716 (La.1973) our review of the record leads us to conclude that there is no manifest error or abuse of discretion on the part of the jury in holding for the defendants. Considering particularly the testimony of Do-mingue and Bearb, together with that of the expert Mel Falgout, the jury could reasonably have concluded that the defendant vehicle was possessed of a latent defect in the braking system which was not readily discoverable nor reasonably anticipated.”

The Louisiana Supreme Court granted writs, 359 So.2d 1303 (La.1978), and ultimately reversed us in part. Areeneaux v. Domingue, et al., 365 So.2d 1330 (La.1978). This case is now before us on remand with instructions to fix the amount of damages in favor of plaintiff, James S. Areeneaux, and against the defendants, Drew Do-mingue and Allstate Insurance Company.

We are at a disadvantage in determining damages in this case because the jury, having found in favor of the defendants originally, made no factual findings with reference to damages. We, in effect, are in the position of making the original determination in this regard, even though we do not have the benefit of personally viewing the witnesses. Damages, therefore, must be fixed according to the manner in which the evidence in the transcript impresses us.

Plaintiff, while stopped behind a line of traffic on November 22, 1975, was struck from the rear by the defendant, Domingue. The impact was relatively light, and plaintiff drove his vehicle away from the scene of the accident. At the time of the accident, he was approximately forty years old.

Plaintiff sought no medical attention until December 9, 1975, at which time he presented himself to Dr. Ernest W. Kin-ehen, Jr., a general surgeon, complaining of neck and back pain. After the first visit, Doctor Kinchen saw plaintiff again on December 10, 1975, and for the last time on December 15, 1975. A review of Doctor Kinchen’s testimony indicates that there were minimal problems in the neck area. At trial the doctor stated that, in view of plaintiff’s complaints, and following his examinations, there was a possibility of a slipped disc at the L-4-5 level. He presumably considered this possibility because “there seemed” to be some positive findings upon administering the left leg raising test, although the neurological examination of the reflexes was normal. The doctor had x-rays taken, which were normal. He prescribed Tylenol, a non-prescription medication, which, according to the doctor, is similar to aspirin and has about the same potency. He also prescribed a lumbo-sacral support, but there is no evidence that plaintiff wore it. Doctor Kinchen gave plaintiff a return appointment, but it was never kept. Doctor Kinchen also stated that plaintiff told him of a previous accident in which he was involved about six years before the accident of November 22,1975, and that he suffered some stiffness in his neck and back area from the earlier accident. The doctor did state, however, that plaintiff complained after the 1975 accident of numbness in his left leg if he sat too long, which complaints were different from those made previously.

Plaintiff sought no further medical attention for approximately seven months. His attorney referred him to Dr. Charles A. Borne, a neurosurgeon, who first saw plaintiff on July 6, 1976, and again on August 24, 1976, January 4, 1977, March 1, 1977, and for the last time on June 16, 1977. Doctor Borne stated that plaintiff had both a cervical and a lumbar spondylosis. He testified that spondylosis is a term which is employed to indicate degenerative changes in the spine. Basically, it refers to a normal aging process which occurs from wear and tear throughout an individual’s life. He thought that the spondylosis was aggravated by trauma, and, based upon what plaintiff told him, the trauma he referred to was the accident of November 22, 1975. The doctor said, however, that it was possible that it could have been aggravated by other trauma or by straining in lifting a heavy weight. Of course, the spondylosis itself predated the accident in question.

Doctor Borne, from his examinations, implied that plaintiff’s signs and symptoms indicated that plaintiff had a lumbar ruptured disc; however, he could not say definitely that plaintiff actually had a disc problem. He recommended that plaintiff undergo a myelogram. Even though one was arranged, plaintiff, nevertheless, refused to undergo it. Doctor Borne also recommended that plaintiff have an electromyo-gram, which was also refused. These procedures are designed to show the existence of an impaired disc. Doctor Borne stated that he would not operate on the plaintiff unless his suspicions were borne out by either a myelogram or an electromyogram.

X-rays of the lumbo-sacral spine revealed no anteroposterior disalignment, but did show a mild hypertrophic disease (osteo-ar-thritis) in the area of the 4th and 5th lumbar vertebrae. The vertebrae otherwise appeared normal in contour, structure, and dimensions, and the disc spaces were of average height.

The record indicates that the plaintiff was examined by Dr. Richard Levy, a neurosurgeon, on behalf of the defendants. That doctor did not testify either at trial or by deposition, nor were any reports submitted in lieu thereof. Counsel for plaintiff points out that in such a case, the presumption that the doctor’s testimony would be adverse to defendants, applies. Although this may be true, such a presumption is merely a factor to be considered along with the other evidence in determining the facts.

An overview of the entire record, including all lay and medical testimony, does not satisfy us that the plaintiff has sufficiently proven that he has suffered a ruptured or slipped lumbar disc. It does seem likely, however, that he suffered an aggravation of a pre-existing spondylosis and/or an aggravation of a pre-existing osteo-arthritic condition.

Plaintiff is an automobile mechanic and his work included lifting, especially when changing transmissions. He worked in his trade until about two months before the trial of this matter, which was commenced on .June 28, 1977. He attempted to show that he could only do light mechanic work, but there is some evidence in the record to the effect that he was performing his regular trade functions at some time during the seven month period in which no medical assistance was sought.

Plaintiff’s evidence as to his earnings pri- or to and after the accident is not impressive.

Considering all aspects of this case, we feel that an award of $10,000.00 would adequately compensate plaintiff for his injury, including pain, suffering, disability, and loss of wages.

Additionally, plaintiff is to be awarded the sum of $711.53, representing damages to his vehicle. Doctor Kinchen’s bill was $51.00, and Doctor Borne’s bill was $105.00. These amounts will be awarded to plaintiff also.

In the trial court judgment, the District Judge fixed the expert witness fees, to be assessed as costs, in the amount of $200.00 for Doctor Borne, $100.00 for Doctor Kin-chen, and $35.00 for Mr. Falgout, the brake expert who testified. These amounts are affirmed as costs.

Jimmy Bearb, the owner of the Arcen-eaux vehicle, was exonerated by the trial jury, and our affirmation to that extent was approved by the Louisiana Supreme Court. Consequently, we therefore reaffirm the District Court judgment insofar as it held Jimmy Bearb not liable.

For the above and foregoing reasons, it is now Ordered that there be judgment in favor of plaintiff, James S. Arceneaux, and against defendants, Drew Domingue and Allstate Insurance Company, in solido, in the full sum of $10,867.53, together with legal interest thereon from date of judicial demand until paid.

All trial and appellate costs are assessed against defendants, Drew Domingue and Allstate Insurance Company.

DISTRICT COURT JUDGMENT AF-. FIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: CUTRER, Judge.

text:
    Stanley J. SMITH, Plaintiff-Appellee, v. DELTA EXPRESS, INC., Defendant-Appellant.
    No. 6470.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      John G. Williams, Natchitoches, Harry F. Horak, Fort Worth, Tex., for defendant-appellant.
    Jeff McHugh David, Denham Springs, and Kelly & Ware, Richard N. Ware, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This case has been remanded by the Supreme Court for further proceedings as a result of the granting of writs wherein the ruling of this court (that a state court lacked jurisdiction to decide the ownership of motor carrier operating certificates and permits issued by the Interstate Commerce Commission) was reversed. This court followed the authority of Graziani v. Elder & Walters Equipment Company, 209 La. 939, 25 So.2d 904 (1946) in so ruling. The Supreme Court overruled Graziani. The ruling of this court was thus reversed and the case was remanded for further proceeding.

The facts were summarized by us in our previous opinion and for the purpose of clarity we repeat them as follows:

“On January 5, 1970, plaintiff and defendant executed a document entitled ‘Purchase Agreement.’ This agreement was, in reality, the sale of certain vehicular equipment and motor carrier operating rights issued by the Interstate Commerce Commission and the Louisiana Public Service Commission, contingent upon the approval of these two regulatory agencies. The sale involved the following operating rights: ICC Certificate of Public Convenience and Necessity Number MC-133168; ICC Contract Carrier Permit Number MC-117969 (Sub. 3); and Louisiana Public Service Commission Contract Carrier Permit No. 1258-A.
The consideration for the transfer of the trucking equipment and the operating rights was $20,000.
“The parties on January 5, 1970, further executed an instrument entitled ‘Personal Services Employment Contract’ by which plaintiff was to receive, for personal services rendered, the sum of $4,200 per year for a period of five years.
“A third document, entitled ‘Purchase Agreement Amendment’, was entered into on January 5, 1970. The purchase agreement amendment provided that:
‘As part of the foregoing purchase agreement, BUYER shall not sell, transfer, assign, alienate, or otherwise dispose of, mortgage, hypothecate, pledge or otherwise encumber said certificates of public convenience and necessity, nor any received by BUYER in lieu thereof, and shall not permit same to become inoperable until all sums of money due or to become due Stanley J. Smith under the “Personal Services Employment Contract” executed this day between the parties hereto have been paid in full.’
“Defendant, after obtaining approval from both the Interstate Commerce Commission and the Louisiana Public Service Commission, began using the trucks and trailers to operate over the routes authorized under the certificates and permits. Plaintiff received, in due course, four of his $4,200 annual personal service payments, but the fifth and final payment was never made. As a result of the failure to make the final payment, plaintiff instituted suit requesting a rescission of the operating rights for failure of the defendant to pay the full purchase price. Plaintiff further requested a judgment declaring him to be the lawful owner of the operating authorities free and clear of any encumbrances which may have been placed upon those authorities subsequent to the sale.
“The trial court judgment rescinded the January 5, 1970 sale and declared plaintiff to be the true and lawful owner of the three operating authorities free and clear of any mortgages, liens, or encumbrances attached to these operating authorities on or after January 5,1970.”

The single issue before this court is whether the trial judge erred when he ruled that a default in the payment of the annual installment due under the “Personal Services Employment Contract” ($4,200.00) could serve as a basis for setting aside the sale of the operating certificates and permits issued by the Interstate Commerce Commission.

The plaintiff contends that the “Personal Services Employment Contract” was part of the consideration for the “Purchase Agreement” as amended, and a default in the annual payment of $4,200 under the “Personal Services Employment Contract” would be grounds for setting aside the “Purchase Agreement” for the sale of the certificates. The defendant contends that the “Personal Services Employment Contract” is a separate instrument and the annual payments thereunder are not a part of the consideration for the “Purchase Agreement.” The defendant further contends that parol evidence is inadmissible to show otherwise.

The crucial provisions of the “Purchase Agreement Amendment” (quoted supra), along with a letter of acknowledgment by D. E. Lester, President of defendant, clearly reflect that the installment payments of the “Personal Services Employment Contract” were part of the consideration for the “Purchase Agreement” for the sale of the certificates. The amendments prohibit any encumbrance or sale of the permits until all of the installments under the “Personal Services Employment Contract” are paid in full. The letter from D. E. Lester, President of Delta Express, Inc., to the plaintiff dated July 15, 1975, stated as follows:

“We draw your attention to the final installment due under our contract of purchase of ICC Authority. [Emphasis added]
“In this regard, please be aware of pending transactions involving Delta Express, Inc.
“We expect to conclude these matters in approximately forty-five to sixty days, thereby liquidating our debt to you.
“Thanking you for your continued patience.”

Mr. Lester expressly acknowledges that the “final installment” is due under the contract of purchase of ICC Authority (certificates and permits). This “final installment” refers to the “Personal Services Employment Contract,” as that is the only installment contract involved in this transaction. Further, the fifth annual payment under the “Personal Services Employment Contract” became due on January 5, 1975. It would have been six months overdue when the letter was written.

The trial court correctly held that the consideration for the “Personal Services Employment Contract” was also an installment consideration for the purchase of the permits. The default on this installment contract is grounds for rescission.

Having so reached the above conclusion, a discussion of the parol evidence issue becomes unnecessary.

The plaintiff, in his brief, brings the court’s attention to an error in the trial court judgment wherein the judgment failed to order the return to defendant of the four installments of $4,200 each in order to comply with the law of rescission. The plaintiff is correct in his observation. The failure of the purchaser to pay the sale price causes the resolutory condition to take effect, which places matters in the same state as though the obligation had not existed. La.Civil Code art. 2045. If the vendor has paid part of the purchase price, that which he has paid is restored to him. Sli-man v. McBee, 311 So.2d 248 (La.1975). Also, $1,000.00 was paid for the certificates and permits under the “Purchase Agreement.” This sum also must be restored to defendant.

For these reasons, the judgment of the trial court shall be amended by ordering the payment by plaintiff to the defendant the sum of $17,800.00, which sum is payable at the time the certificates are transferred to plaintiff by defendant. In all other respects, the judgment of the trial court is affirmed. All costs are to be paid by defendant.

AMENDED AND AFFIRMED.

        . Stanley J. Smith v. Delta Express, Inc., 365 So.2d 1345 (La.1978).

      . 360 So.2d 1179 (La. 1978).

      . 359 So.2d 1066 (La.App. 3rd Cir. 1978).

      . Appellant did not put at issue, either in brief or oral argument, the portion of the trial court’s judgment adjudicating the ownership of the contract carrier permit issued by the Louisiana Public Service Commission described in the “Purchase Agreement” dated January 5, 1970. This portion of the trial court’s judgment was thus affirmed.

      . Civil Code Art. 2045 provides as follows:
      “The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.
      “It does not suspend the execution of the obligation; it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.”


text:
    Clyde Earl KELLEY, Plaintiff-Appellant, v. M AND M DODGE, INC., et al., Defendants-Appellees.
    No. 6656.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Gravel, Roy & Burnes, by Chris J. Roy, Alexandria, for plaintiff-appellant.
    Watson, Blanche, Wilson & Posner, David W. Robinson, Baton Rouge, Gist, Methvin & Trimble, James T. Trimble, Jr., Alexandria, for Pharis & Pharis, James A. Pharis, Jr., Alexandria, Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

This is a suit for damages. Plaintiff, Clyde Earl Kelley, alleges that he was employed by M & M Dodge, Inc., on August 17, 1974, when he was injured in the course and scope of his employment. Kelley alleges that he sustained the injury while he was in the process of cutting barrels with a torch, causing one to explode.

Kelley filed suit against his employer, M & M Dodge, Inc., and two alleged “executive officers” of M & M Dodge, Inc., these being Oliver McMickens, vice president, and Ken Edwards, a superintendent. American Hardware Mutual Insurance Company (hereinafter referred to as American Hardware) was sued under two policies as the liability insurer of M & M Dodge, Inc., and its “executive officers.”

McMickens filed a third party demand against American Hardware contending that American Hardware afforded him coverage and owed him a defense.

Peremptory exceptions of no cause of action were filed on behalf of M & M Dodge, Inc., and its insurer, American Hardware. A peremptory exception of no cause of action was filed with regard to the third party demand of McMickens.

The trial court sustained these exceptions and dismissed plaintiff’s suit against M & M Dodge, Inc., and American Hardware. The judgment also dismissed the third party demand of McMickens against American Hardware. Plaintiff appealed.

The two issues presented are as follows:

I. Whether Kelley’s petition states a cause of action against American Hardware under the terms of the Garage Liability Policy issued to M & M Dodge, Inc.
II. Whether Kelley’s petition states a cause of action against American Hardware under the terms of Standard Workmen’s Compensation and Employers Liability Policy.

I.

The first issue is whether the petition states a cause of action when it alleges that Oliver McMickens, as an “executive officer,” was covered by American Hardware’s Garage Liability policy issued to M & M Dodge, Inc.

American Hardware contends that the “fellow employee” exclusion in its policy is applicable and on this basis denies coverage.

The exclusion reads as follows:

“None of the following is an insured:
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;”

Counsel for Kelley argues that the “fellow employee” exclusion does not apply to “executive officers” as a matter of law but the exclusion is only applicable when such “executive officer” is a “fellow employee” as a factual matter. Counsel contends that it is the character of the acts or works performed by the “executive officer” at the time of injury that determines whether the executive officer was in fact a fellow employee.

This question was presented in the case of Mauterer v. Associated Indemnity Corp., 332 So,2d 570 (La.App. 4th Cir. 1976), wherein the court held as follows:

“The exclusion at issue is on page 3 of the policy under the section,
‘Persons Insured’
* * * * * *
‘None of the following is an insured
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment; .
“It is not at issue that Mauterer was in the course of his employment when killed and that the negligence complained of by plaintiffs arose solely from the executive officers engaging in the business of the Sam P. Wallace Company. The sole issue becomes are the executive officers to be included within the meaning of the words ‘fellow employee’?
“This exclusion is commonly known as the ‘cross-employee exclusion’ and its intent is to deny coverage to employees that have a remedy under the Workmen's Compensation Act. [footnote omitted] Manuel v. Liberty Mutual Insurance Co., 256 La. 480, 236 So.2d 807 (S.Ct.1970); Myers v. Fidelity and Casualty Company of New York, 152 So.2d 96 (La.App.3rd Cir. 1963).
“The question of whether an executive officer is an ‘employee’ within the meaning of the cross-employee exclusion has recently been answered in the federal courts, Heiser v. Gibson, 386 F.Supp. 901 (E.D.La.1974). The court in Heiser, citing Manuel v. Liberty Mutual Insurance Co., supra, held that in determining whether an executive officer is an employee it is proper to look to the Workmen’s Compensation Act. LSA R.S. 23:1044 states that executive officers are deemed to be employees for purposes of receiving compensation benefits. This being true they ought to also be employees for purposes of interpreting an insurance contract provision, the intent of which is to exclude persons with a remedy under the Workmen’s Compensation Act.”

In the recent case of Credeur v. Luke, et al., 368 So.2d 1030, rendered March 5, 1979, the Supreme Court held that if the executive officer is the named insured, the cross-employee exclusion does not apply as the executive officer is not an employer of Alton Credeur and such executive officer could not be exposed to a workmen’s compensation obligation. The court distinguished that case from Mauterer, supra, since the insured in Mauterer was the employer and subject to a workmen’s compensation obligation.

In the case at hand the named insured, M & M Dodge, Inc., is the employer of Kelley; thus the principles enunciated in Mauterer are applicable.

The exclusion applies and the General Liability Policy provides no coverage in this suit, and the trial court properly sustained American Hardware’s exception of no cause of action in this regard.

II.

Counsel for plaintiff next contends that the Standard Workmen’s Compensation and Employers Liability Policy provides, in addition to workmen’s compensation coverage, liability coverage for any injured employee of M & M Dodge, Inc. Plaintiff contends that he has a cause of action in tort under the policy against American Hardware even though such an action did not exist against M & M Dodge, Inc., the employer. Counsel contends the liability coverage inures to the benefit of an employee as a stipulation pour autrui. The insured under the policy is M & M Dodge, Inc., and assuming that liability coverage in the policy was provided to M & M Dodge, Inc., the argument of plaintiff is without merit. This novel argument is properly disposed of by the trial judge where he reasoned as follows:

“One thing to remember is whether the plaintiff has a cause of action. Clearly under the workmen’s compensation law he does not have a cause of action, either against M & M Dodge or its compensation carrier. Coverage B does not create a cause of action for the plaintiff. He finds his cause of action in the law. * * R.S. 23:1032 provides:
‘The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this chapter shall be exclusive of all other rights and remedies of such employee, his personal representations, dependents, or relations.’
“The plaintiff wishes to contend that while admitting that M & M Dodge, Inc., has no liability for this present suit, that the immunity of M & M Dodge does not flow to the insurer. The falacy [sic] of this proposition is that it is not a question of immunity of the employer. It is that the compensation remedy is the exclusive remedy or cause of action accruing to the employee. Also it is not a matter of immunity for insurance companies. The compensation law states that the employee does not have a cause of action not only against the employer but also against the employer’s insurer. R.S. 23:1166 provides:
“ ‘When an insurance company issues a policy of insurance to an employer covering claims for injuries to employees that may arise within the scope of the employer’s business, the insurance company shall be estopped to deny liability on the grounds that the employment was not hazardous and during the period such insurance is in effect, claims for injuries occurring during such period by such employees against the employer or the insurance company shall be exclusively under the workmen’s compensation act.’ ”

Plaintiff’s cause of action against M & M Dodge, Inc., and its insurer is, by law, limited to a claim for workmen’s compensation. The existence of liability coverage for the employer does not create a cause of action in tort against either the employer or its insurer. The exception of no cause of action filed by American Hardware was properly sustained.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay costs of this appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Albert BRANCH, Sr. and Clara Branch, Plaintiff-Appellants, v. AETNA CASUALTY & SURETY COMPANY et al., Defendant-Appellees.
    No. 6770.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Gravel, Roy & Burnes, Chris J. Roy, Alexandria, for plaintiff-appellants.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellee.
    David Scarbrough, Herman Carter, Leroy Book, and J. Dean Cowan, in pro per, for defendant-appellee.
    Before DOMENGEAUX, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

This suit was brought by plaintiffs, Albert Branch, Sr., and Clara Branch, pursuant to La.C.C. art. 2315 for damages occasioned by the death of their unmarried, nineteen-year-old son, Albert Branch, Jr. He died as a result of an accident which took place on February 8, 1977, while he was working within the course and scope of his employment by Louisiana Delta Elevator Company in Jonesville, La. Named as defendants in the suit were appellees, Aet-na Casualty and Surety Company, the employer’s insurer, and four co-employees of the decedent, Leroy Book, David Scar-brough, Herman Carter, and Dean Cowan.

Defendants filed peremptory exceptions of no cause of action and no right of action, alleging that LSA-R.S. 23:1032 provides the exclusive remedy in this situation. The district court maintained these exceptions, dismissing plaintiffs’ suit. They appealed.

The only issue before this court is whether or not the exclusion of other remedies provided by LSA-R.S. 23:1032 is constitutional. Because plaintiffs alleged in their petition that they were not dependents of their son, they are not eligible for death benefits under the Compensation Act, other than for medical and funeral expenses. LSA-R.S. 23:1231, et seq. The combined effect of these provisions is a denial to plaintiffs of a right to recover damages for the loss of their son’s society, affection, etc.

Plaintiffs argue that this effect is not constitutionally permissible, because it violates La.Const. art. 1, § 22 as well as the due process and equal protection guarantees of both the state and federal constitutions. Before addressing their specific arguments based on these provisions, we feel that a brief discussion of the nature and origin of the right to recover for wrongful death in this state will be beneficial.

La.C.C. art. 2315 specifically provides for recovery for wrongful death damages. In King v. Cancienne, 316 So.2d 366 (La.1975), the Supreme Court of Louisiana exhaustively reviewed the source provisions of this article. Article 16 of the Code of 1808, the precursor of Article 2315, was a literal adoption of the French Projet du Gouvernement (1800), book III, title III, Article 16. It was succeeded by Article 2294 of the Code of 1825, which was identical to Article 1382 of the Code Napoleon of 1804. That provision appears unchanged in the first paragraph of Article 2315.

Although the French had interpreted their Article 1382 to provide a cause of action for recovery for wrongful death damages, in Hubgh v. New Orleans and Carrollton Railroad Company, 6 La.Ann. 495 (1851), the Supreme Court of Louisiana held that there was no such right in Louisiana under Article 2294 of the Code of 1825. The Hubgh court recognized that the principle set forth in the Code Napoleon was not new, but was derived from prior French law, Roman law and the natural law. However, it held that the French interpretation was not controlling, basing its decision on principles of common law. The court in King v. Cancienne, supra, declared that position to be erroneous. That conclusion was restated in Callais v. Allstate Insurance Company, 334 So.2d 692 (La.1975).

Responding at least in part to the Hubgh decision, the legislature amended Article 2315 by Act 223 of 1855 to provide for the survival of the decedent’s cause of action against the tortfeasor. Later, it was again amended by Act 71 of 1884 to provide an action for the loss suffered by the survivors, themselves, through the death of the decedent.

In light of the above, it is clear that the right to recover for wrongful death in Louisiana originated long before the 1855 and 1884 amendments to Article 2315. The question which must be answered is whether the legislature could constitutionally limit that right in the manner in which it has. In arguing that the exclusion of other remedies provided by LSA-R.S. 23:1032 should not apply to them, plaintiffs asserted that that provision has been misinterpreted, but they cite no authority for that conclusion. Rather, it seems to be based on their reluctance to attribute to the legislature an intent which they find repugnant. However, the wording of the statute is clear and unambiguous. Its provisions apply to the employee’s “relations” as well as his “dependents”. Therefore, we cannot agree that the act has been misinterpreted.

Plaintiffs also argue that LSA-R.S. 23:1032 violates Article 1, Section 22 of the Louisiana Constitution of 1974 which provides:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

They contend that they cannot be denied an adequate remedy for the loss of their relationship with their son, which loss has been recognized as compensable in the natural law, Roman law and French law from which our own law is derived. However, the legislature and courts of this state have never at any time recognized the principle that every loss of a personal relationship, resulting from a delict, is compensable. The mutually exclusive'categories of survivors set forth in the third paragraph of Article 2315 have been applied in cases too numerous to mention, excluding many who would otherwise have had valid claims. We do not feel that this constitutional provision can be construed so broadly as to defeat the sound policy implemented by those legislatively imposed limitations.

The constitutionality of the workmen’s compensation law with reference to the concepts of due process and equal protection of the laws was recently considered by this court in Perez v. Continental Casualty Co., et al., 367 So.2d 1284 (La.App. 3rd Cir. 1979). The history and purpose of the Compensation Act as well as the most recent cases setting forth the tests for evaluating conformance to these constitutional standards were discussed at length. Although the factual situation was not exactly the same, we feel that the conclusions reached are applicable here.

The legislature has deemed it necessary in the interest of the overall workmen’s compensation scheme to eliminate the right to tort recovery in cases where the Compensation Act is applicable. Furthermore, it has limited recovery under the act to dependents who have suffered or will suffer an economic loss as a result of the death of the decedent. These measures are reasonable and relevant to the objective sought to be achieved by the act. Burnmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978); Perez v. Continental Casualty Company, et aL, supra. Therefore, there is no equal protection violation.

Plaintiff’s argument that LSA-R.S. 23:1032 violates due process is also without merit. Any right which they might otherwise have had was circumscribed by the legislature by means of the above provision long before their cause of action would have arisen by the death of their son. Thus, they have not been deprived of a vested property right. Burnmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, supra; Perez v. Continental Casualty Company, et al., supra.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . LSA-R.S. 23:1032 provides in part:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.”