Knockum v. Amoco Oil Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: CHIASSON; PER CURIAM
• Citation: Knockum v. Amoco Oil Co., 402 So.2d 90 (La. App. 1980)
• Decision Date: 15 December 1980
• Docket Number: Nos. 13836,13837,s. 13836
• Parties: Christopher KNOCKUM et al. v. AMOCO OIL COMPANY et al. Claiborne WHITE, Jr. et al. v. AMOCO OIL COMPANY et al.

Page 90

402 So.2d 90

Christopher KNOCKUM et al. v. AMOCO OIL COMPANY et al.

Claiborne WHITE, Jr. et al. v. AMOCO OIL COMPANY et al.

Nos. 13836, 13837.

Court of Appeal of Louisiana, First Circuit.

Dec. 15, 1980.

On Rehearing June 29, 1981.

On Rehearing July 27, 1981.

Rehearing Denied Aug. 25, 1981.

Alfred F. McCaleb, III, Baton Rouge, Malcolm J. Dugas, Jr., Joffrion & Dugas, Donaldsonville, John A. Lieux, Gonzales, for plaintiffs and appellees.

A. Shelby Easterly, III, Taylor, Porter Brooks & Phillips, Baton Rouge, for defendants and appellants Amoco Oil Co. and Aetna Cas. & Surety Co.

Charles F. Castille, La. Health & Human Resources Adm., Baton Rouge, for intervenor and appellee.

Harry P. Gamble, III, Gamble & Gamble, New Orleans, for defendant and appellant Bernice Holmes.

Before COVINGTON, CHIASSON and LEAR, JJ.

CHIASSON, Judge.

Defendants-Appellants, Amoco Oil Company and Aetna Casualty & Surety Company (sued as Aetna Insurance Company), appeal the separate judgments rendered against them and in favor of the appellees for damages awarded to appellees for personal injuries and wrongful death actions sustained in a gas explosion and house fire in Prairieville, Louisiana.

Two separate suits were filed in this matter and consolidated for trial purposes. A brief review of the facts will aid in the determination of the respective parties and their claims.

On May 5, 1975, Christine Wenzy and her two minor children, Amy (then age three) and Jerome (then age two), were moving into a two bedroom wood frame house in Prairieville. The house was owned by Bernice Holmes, a resident of New Orleans, who had given a key to the house to Christine. There is some dispute as to whether Christine Wenzy was actually going to rent the house or whether she had permission to use the house, but this is not vital to our determination.

Helping Christine to move was Diane Knockum who had her daughter, Susan, with her. Shirley Ezeff White, who had been living with Christine in a house across the road from the one in question, was also helping. Finally, Christine Wenzy's brothers, Albert Wenzy and Michael Wenzy, along with Willie Robinson, aided in the venture.

The house had previously been rented to Ms. Emma Frazier who had moved at least two weeks (others testified that it was longer) prior to the move by Christine. Ms. Frazier had lived in the house less than a year and had it serviced for propane gas by one of the defendants, Amoco Oil Company.

The move began sometime in the afternoon on May 5 and concluded close to dinner time. At that time, Albert Wenzy connected the gas stove they had brought into the house to the gas connection in the kitchen. Albert and Christine turned on the gas from the propane tank located outside and in the back of the house. During this time, the three children were seated at the dinner table with the others gathered in the living room. Christine Wenzy then went to the back bedroom and proceeded to open the door. At that moment an explosion occurred followed by a fire which engulfed the house.

Injured in the blaze, but surviving, were Christine Wenzy and Susan Knockum. Amy and Jerome Wenzy, Diane Knockum, and Shirley Ezeff White survived the fire but later died of burns to their bodies. None of the three males were injured in the accident.

Two suits were filed in this matter, the first by Christopher Knockum, husband of Diane Knockum; Willie D. Williams, alleged natural father of Amy and Jerome Wenzy; and Christine Wenzy. The plaintiffs sued Amoco Oil Company, its liability insurer, Aetna Casualty & Surety Company, and Bernice Holmes, owner of the house.

Christopher Knockum sued for the wrongful death of his wife, Diane, and for the pain and agony she suffered before dying on June 16, 1975. In addition, Christopher is suing as natural tutor of his daughter for the injuries she sustained as well as for the wrongful death of her mother and the pain and agony her mother sustained before dying.

Willie D. Williams, the alleged natural father of Jerome and Amy Wenzy, is suing for their wrongful deaths in addition to damages for the pain they suffered prior to their deaths on May 6, 1975, and June 9, 1975, respectively.

Christine Wenzy is suing for the wrongful deaths of her two children, Jerome and Amy, as well as damages for the pain they suffered prior to their deaths. Christine is also seeking damages she incurred as a result of the fire.

The second suit is by the survivors of Shirley Ezeff White. Her husband, from whom she had been judicially separated, Claiborne White, Jr., sued on his behalf for the medical and funeral expenses incurred by the death of Shirley. In addition, he sued as natural tutor of the five minor children born of the marriage for the wrongful death of their mother and the pain and suffering she experienced before dying on May 15, 1975.

Named as defendants in the second suit were Amoco Oil Company, Aetna Casualty & Surety Company, Bernice Holmes, Emma Frazier, Albert Wenzy, Michael Wenzy, and Willie Robinson.

The State of Louisiana, through the Department of Health and Human Resources Administration, intervened in the first suit seeking reimbursement of $9,806.09 for medical expenses incurred by them in caring for Christine, Jerome and Amy Wenzy at the Charity Hospitals in Baton Rouge and New Orleans.

The trial court, after two days of testimony and taking the case under advisement, rendered judgment, without assigning written reasons, in favor of all plaintiffs. In the first suit, all three defendants were held, in solido for the following awards:

Christopher Knockum  --  $100,000  for the wrongful death
                individually                       of his wife, Diane
                                                   Knockum
                                           35,000  for damages sustained
                                                   by his wife
                Christopher Knockum  --    40,000  for the wrongful death
                as tutor of Susan                  of Susan's mother
                                                   Diane Knockum
                                           35,000  for damages sustained
                                                   by her mother.
                                          700,000  for damages sustained
                                                   by Susan.
                                         --------
                                         $910,000
                Willie D. Williams   --  $ 40,000  for the wrongful death
                                                   of Jerome.
                                            5,000  for damages sustained
                                                   by Jerome.
                                           40,000  for the wrongful death
                                                   of Amy.
                                            5,000  for damages sustained
                                                   by Amy.
                                         --------
                                         $ 90,000
                Christine Wenzy      --  $180,000  for damages sustained
                                                   by Christine.
                                           40,000  for the wrongful death
                                                   of Jerome.
                                            5,000  for damages sustained
                                                   by Jerome.
                                           40,000  for the wrongful death
                                                   of Amy.
                                            5,000  for damages sustained
                                                   by Amy.
                                         --------
                                          270,000
                

In addition the three defendants were cast, in solido for $9,806.09, the amount owed to the intervening State, as well as for all court costs, expert fee in the amount of $750.00, and interest in the amount of seven percent (7%) for all sums awarded.

In the second suit, judgment was rendered on the same day against Amoco Oil Company and Bernice Holmes, in solido. The awards to Claiborne White, Jr. were as follows:

As tutor of children  --  $200,000.00  ($40,000 for each
                                                       child) for the wrongful
                                                       death of their mother,
                                                       Shirley Ezeff White.
                                            25,000.00  ($5,000 for each child)
                                                       for the damages sus-
                                                       tained by their mother.
                Individually          --     1,389.45  medical and funeral
                                                       expenses.
                                          -----------
                                          $226,389.45
                

In addition, the defendants were to pay for all court costs, expert fee in the amount of $750.00, and interest at the rate of seven percent (7%) for all sums awarded.

Amoco Oil Company and Aetna Casualty & Surety Company obtained a timely suspensive appeal and timely posted an appeal bond on May 8, 1980. The other defendant, Bernice Holmes, obtained an order for a devolutive appeal on June 17, 1980.

In regards to this latter appeal, we find that it is untimely and therefore we dismiss the appeal for lack of jurisdiction over the matter. Therefore, the judgment of the trial court as it relates to Bernice Holmes is final.

The judgments of the trial court were rendered on March 14, 1980. Notices of the judgments were sent out by the Clerk of Court of Ascension Parish on April 3, 1980. The time frame applicable for a new trial was seven days which expired on April 15, 1980. (La.C.C.P. art. 1917). The thirty day delay for a suspensive appeal ended on May 15, 1980 (La.C.C.P. art. 2123), while the sixty day delay for a devolutive appeal ended on June 16, 1980. (La.C.C.P. art. 2087). Ms. Holmes did not obtain her order for appeal until June 17, 1980. Her appeal is therefore untimely. We are without jurisdiction and dismiss her appeal at her costs. (La.C.C.P. art. 2088).

Appellants, Amoco and Aetna, enumerated five specifications of error, but we need only concern ourselves with three of the five.

1. The trial court committed manifest error in failing to find the liquefied petroleum gas was properly odorized.

2. The trial court committed manifest error in failing to find Amoco...