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    Larry G. MOBLEY, Plaintiff-Appellee, v. REGO COMPANY, et al., Defendant-Appellant.
    No. 14799.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.
    Writ Denied May 28, 1982.

      Shadoin & Bleich by Robert E. Shadoin and E. J. Bleich, Ruston, for plaintiff-appel-lee.
    William J. Guste, Jr., Atty. Gen. by Archie Perry and Houston T. Penn, for defendant-appellant.

      Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

This matter is on appeal from a $1,251,-635.06 personal injury judgment against the State of Louisiana through its Liquified Petroleum Gas Commission for damages sustained by plaintiff as a result of an explosion at the Laurens Glass Plant in Lincoln Parish. In order to properly address the issues presented in this appeal it is necessary that we discuss at length the facts giving rise to this litigation.

On February 26, 1977, at approximately 3:00 p. m., an employee of Laurens had driven his forklift truck to the propane/butane fueling station located at the northwest corner of the Laurens loading dock for the purpose of refueling his vehicle.

The loading dock is a twenty-one foot wide platform extending approximately two hundred forty feet along the north side of the warehouse building. It is covered by a fourteen foot high flat roof which is supported by posts. At the time of the accident located at the northwest corner of the loading dock was the “fueling station” where the plant’s forklift trucks were regularly refueled with a mixture of propane and butane, a liquified petroleum gas. The fueling station consisted of a pipe which ran from the main storage tank to a pole located on the loading dock a few feet from the northwest corner. To this pipe was attached a twelve and one-half foot hose with a nozzle on the end. At that time the main storage tank was located some one hundred thirty four feet north (or slightly northwest) of the northwest corner of the loading dock. The pole in question was within twenty-five feet of the north wall of the warehouse building and even closer to the original office then situated on the northwest corner of the loading dock adjacent to the warehouse wall. A restroom was located immediately east of the office area within the main part of the warehouse. Doors opened from the restroom and the east wall of the office onto the loading dock. Three gas heaters were located in the area, one on the wall in the restroom and two on the wall in the office.

The northwest corner was a well used, “congested” area with employees and truck drivers going to and from the restroom area, office area, and the fueling station.

Willie Lowery, an employee of Laurens, drove his vehicle to the northwest corner of the loading dock on the day in question to refuel. He attached the nozzle end of the hose to the fuel container on his forklift and refueled. When he finished he cut the switches and valve off but did not disconnect the nozzle end of the hose from the fuel container on his forklift. Feeling nature’s call he went into the restroom to use that facility. After he finished he met plaintiff, Larry Mobley, also a Laurens employee, entering the restroom. Mobley did not in any way distract Lowery who then exited the restroom, got on his forklift and pulled away from the fueling station in an easterly direction without disconnecting the filler hose from the fuel container. As his vehicle moved to a point even with the restroom door, he heard a “pop”, an explosion occurred, and he was blown from the forklift by the explosion which set him on fire. It is apparent that the liquified petroleum gas escaped from the forklift drifting into the bathroom area or the office and that the gas was ignited by one of the heaters.

Simultaneously with these events, Mobley was about to exit the restroom where the heater was burning. As he opened the door, he was met by a “ball of fire” that blew him backward and engulfed him in flames. When the fire diminished sufficiently to enable Mobley to escape the restroom he ran into the packing department where other employees caught him and threw a plastic bag over him to protect his severely burned body.

As a result of this accident, Mobley was hospitalized for an extended period of time as a result of his having suffered burns over sixty percent of his body, fifty percent being of the third degree.

Plaintiff then filed this suit against a number of defendants, including the state. Two defendants were dismissed when the lower court sustained motions for summary judgment. Plaintiffs claims against the remaining defendants, except the state against whom plaintiff specifically reserved all rights, were dismissed by joint stipulation and judgment in December, 1979, as being settled and compromised. After a lengthy trial, the trial court in comprehensive written reasons, rendered judgment in favor of plaintiff against the State of Louisiana, through its Liquified Petroleum Gas Commission, in the amount of $1,251,635.06 together with legal interest from date of judicial demand and all costs. It is from this judgment that the state of Louisiana appeals assigning two errors for our consideration:

(1) The trial court abused its discretion in allowing plaintiff to amend and supplement his petition at the beginning of trial .and in not thereafter granting a continuance to appellant; and
(2) The trial court erred in finding appellant liable for plaintiff’s injury.

Additionally, appellant filed an exception of no cause and no right of action in this court urging that the original and supplemental petitions filed by plaintiff failed to state a cause of action or a right of action against the State of Louisiana or against the Liquified Petroleum Gas Commission.

In considering appellant’s first assignment of error, it is necessary to detail the history of this prolonged litigation.

Plaintiff’s original petition was filed December 20, 1977, against five defendants, one of which was the state of Louisiana, through the Liquified Petroleum Gas Commission. Various allegations of negligence were alleged with regard to each defendant. Subsequently, the plaintiff amended his original petition to add additional' defendants, to correctly identify one defendant named in the original petition, to allege additional grounds of intentional tortious acts against one group of defendants and to increase the demand for damages. The record reveals that prior to December 4, 1979, the plaintiff filed six amended petitions. All defendants, except appellant, answered the petitions and filed third party demands against all other defendants seeking indemnification and/or contribution. Appellant answered plaintiff’s petitions with general denials and pled contributory negligence on the part of the plaintiff and negligence of a coworker as a bar to plaintiff’s action. Appellant filed no third party demands against any of the other named defendants although it was made a third party defendant by virtually all other defendants.

On December 4, 1979, almost two years after the filing of the original petition and after a great deal of discovery, plaintiff settled his claim with all defendants except appellant and dismissed his suit as to those other defendants expressly reserving his right to proceed solely against appellant. The court ordered judgment in accord with the settlement which contained the provision that if any one or more of the released defendants were determined to be joint tortfeasors with appellant then the amount of any judgment obtained by plaintiff against appellant would be reduced by that virile portion. All claims of and against all of the other parties except the claim between plaintiff and appellant were dismissed, and on December 4,1979, they were the only two parties remaining in the lawsuit. Appellant was not a party to this Joint Stipulation and Judgment and there appears no record of this pleading having been served on appellant.

The record reflects no further action in the suit until October 7, 1980, when plaintiff filed a motion and order to fix a trial date. The order signed October 9, 1980, fixed the trial date for January 19, 1981, and notice of fixing was ordered served on all counsel. Thereafter, appellant filed a motion and order for continuance dated December 8, 1980, alleging it did not receive a notice of trial fixing until December 5, 1980, because counsels’ office had been relocated. It was alleged that the complexity of the case required time to restudy all pleadings, depositions, codes, regulations, and subpoena witnesses, and that the trial date did not allow sufficient time to accomplish this. This pleading according to the certificate of service was mailed solely to plaintiff’s attorney and was signed by appellant’s counsel. This latter fact certainly establishes that at this time counsel for appellant had knowledge that the litigation involved only the plaintiff and appellant. A rule directed to plaintiff to show cause why this continuance should not be granted was issued by the court returnable on December 22, 1980. The minutes reflect that this motion was argued and denied on that date. Additionally, on that date, plaintiff noticed appellant that plaintiff would take the deposition of Dr. Worthen in Monroe on January 9, 1981.

The amended and supplemental petition complained of by appellant was presented to Judge James M. Dozier, Jr. before whom the case was later tried, who signed it on January 9, 1981. The attached certificate shows that a copy of same was hand delivered by plaintiff’s attorney to appellant’s attorney on the same date. The amended petition was actually filed on January 12, 1981.

On January 19, 1981, the record shows that Mr. Bliech and Mr. Shadoin were present on behalf of plaintiff and Mr. Perry and Mr. Penn were present on behalf of appellant. When the court inquired of appellant if it wished to make a statement prior to beginning of trial, Mr. Perry stated he wished to bring to the court’s attention that the plaintiff had filed an amended petition. He then inquired as to whether the court had “signed that petition” and if the issues in that petition were the issues of the trial. Judge Dozier examined the pleading and stated that the order allowing the amended petition had been signed. At this point, appellant objected to the amended petition on the grounds that appellant had not received the full time allowed by law to answer the petition and to prepare any changes to its defense with respect to the amended petition, specifically claiming that in the original petition plaintiff alleged that appellant was jointly and solidarily liable with “two other defendants” and “that there may be some other people liable to us which we didn’t have time to bring back into the lawsuit.”

Plaintiff’s counsel responded stating that he had handed counsel for appellant the amended petition on January 9, 1981, and verbally again informed him of the posture of the suit, further stating that “last month, at a hearing that was held here in Ruston, we stated to them at that point that our whole thrust was that the state was solely responsible.”

The court allowed the amendment to stand and informed appellant that according to the pleadings, as amended, the state was not being looked upon by plaintiff as a joint tortfeasor with any other parties. At this point, appellant replied: “Okay well, then, your Honor, the state hasn’t filed an answer to that, so we will offer as an answer a general denial.” The court allowed appellant’s verbal general denial answer to each and every allegation of the amended petition and granted the state ten days within which to file a written pleading to that effect. To that statement, counsel for appellant simply replied, “Thank you, your Honor.”

A careful reading of the record shows clearly that the appellant erroneously argues that it “strongly objected” to the amendment and requested a continuance in order to answer the amended and supplemental petition and make further preparation for trial. The record is completely void of any request for a continuance by appellant.

The general rule as to allowing amendments after an answer is filed is that the trial judge has much discretion in such matters and that his ruling will not be disturbed unless there has been an abuse of the discretion vested in him. See Brooks v. Fondren, 199 So.2d 588 (La.App. 3rd Cir. 1967).

A valid reason for not allowing an amendment to a pleading is prejudice to the opposing party. Former Louisiana Supreme Court Justice, now Judge of the United States Fifth Circuit Court of Appeals, Albert Tate, Jr., stated in 43 Tul.L. Rev. 211, 218 (1969):

In permitting amendment or not, the most important consideration is whether the opponent is unfairly prejudiced. The “prejudice” about which we speak is based only upon the lateness of the new allegation, not upon the opponent being placed in a less favorable position to win the suit on the merits. As summarized by Barron and Holtzoff:
“What constitutes prejudice must be determined by examination of particular cases in which amendments have been considered; but the test in general seems to be that there must be some harm which the opposing party will suffer from the amendment which he would not have suffered had the original pleading followed the form sought by the amendment. Thus there is no prejudice merely because the amended pleading makes a stronger case for the amending party and makes it less likely that the opposing party will win, nor will prejudice be found in a claim that the amended pleading will require additional preparation for trial, where the issues sought to be raised were known from the beginning by the opposing party. Prejudice may be found, however, where the amendment will cause excessive delay or where a source of evidence has become unavailable or a statute of limitations would bar. a new suit if the opposing party should lose the present action.”

See also Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1st Cir. 1964).

Applying the above reasoning to the instant case, we state that appellant had every opportunity beginning in December, 1977, to file third party demands against the other defendants who were dismissed from the suit. It chose not to do so even though these other defendants were asserting third party demands against it. At the very latest, by examination of its own pleadings appellant must have known on December 8, 1980, that it was the lone remaining defendant in the action, and still it took no steps to prepare for trial on that basis. After the continuance was denied, appellant knew it had until January 19, 1981, to do what it claimed it was pressed for time to do, i.e., restudy all pleadings, depositions, codes, regulations; reassess its position; and subpoena witnesses. On January 19,1981, appellant claimed no surprise, requested no continuance, made no complaint of inability to subpoena witnesses and after the amended petition was allowed to stand simply asked permission to file the same basic pleading it had filed throughout the entire proceeding — a general denial. This request was granted. There has been no showing by appellant of genuine surprise or prejudice. If appellant was not truly prepared to go to trial on that date, that lack of preparation in our opinion did not come about as a result of the filing of the amended petition. Therefore, we find that the trial court did not abuse its discretion in allowing the amended petition to be filed.

Appellant next asserts that the trial court erred in finding appellant liable for plaintiff’s injury. We disagree.

The Louisiana Constitution of 1974, Article XII, Section 10, abolishes the concept of sovereign immunity in tort cases; thus, the state, as well as its agencies, stands in no better position in the instant action than does an individual or a private firm, association, or corporation.

La.R.S. 40:1841 et seq creates the Liquified Petroleum Gas Commission as an agency of the state of Louisiana. More specifically, La.R.S. 40:1846 provides:

The commission shall have the power to make and enforce rules and regulations governing the storage, sale and transportation of liquified petroleum gases over the highways of the state of Louisiana, the installation of tanks or systems for the use of such gases . . .

Pursuant to the foregoing authority, the commission adopted certain rules and regulations including but not limited to the following:

SECTION II — STORAGE CONTAINERS
This section applied specifically to containers used in storing gas for any one or combination of the following uses: filling truck tanks, bottle filling plants, stationary internal combustion engines, industrial applications, motor fuel dispensing stations, or any station from which gas is dispensed in liquid state into another container, and to all other installations where gas is stored but not used on the premises.
* * # # * *
2.7 Location of containers
(a) Each container, according to its capacity, shall be located not less than the following distance from the nearest important building or group of buildings, or line of adjoining property which may be built upon: less than 2001 gallons, 25 feet; 2001 gallons to 30,000 gallons, 50 feet; 30,001 gallons to 70,000 gallons, 75 feet; 70,001 to 90,000, 100 feet. Each container, irrespective of capacity, shall be located not less than 25 feet from any public street, highway, or railroad.
(1) The point of liquid transfer shall be located at least 25 feet from the nearest important building, or group of buildings, or line of adjoining property which may be built upon or from any public street.
The Director of the Louisiana Liquified Petroleum Gas Commission shall, in case of hardship, have authority to approve special exceptions to the above minimum distance regulations upon the submission by the dealer of a sketch, in duplicate, showing the facts as to the location, and subject to any regulations in National Fire Protection Association Pamphlet No. 58 covering such exceptions.

In the instant case, the evidence is virtually uncontradicted that the point of liquid transfer of the liquified petroleum gas into the forklift containers was closer to the building than the minimum proscribed distance. It was within 25 feet of the office at the northwest corner of the loading dock as well as the north wall of the warehouse.

The Commissioner of the Liquified Petroleum Gas Commission, Mr. Ortego, initially took the position that the commission had no jurisdiction over the installation at Laurens. Subsequently, in his testimony he conceded that the commission by virtue of the heretofore quoted statutes and rules and regulations did in fact have jurisdiction over the fueling station installation at Lau-rens and that Section II specifically covered that installation. As did the trial court, we conclude that the use of liquified petroleum gas at Laurens’ plant is under the jurisdiction of and subject to the rules and regulations of the commission.

Appellant additionally urges that it cannot be held negligent regarding the relocation of the Laurens’ fueling station installation because no sketch was ever submitted by the dealer and no exception to the minimum distance requirement Was approved by the director. This argument must be addressed in light of the factual context of what actually transpired concerning the relocation of the fueling station or liquid transfer point.

The evidence presented at trial shows that prior to February 6, 1975, at the request of Laurens, Mr. Charles Fuller, the butane retail distributor who serviced Lau-rens and a liquified petroleum gas dealer with a Certificate I permit, contacted the Liquified Petroleum Gas Commission concerning the proposed relocation of the fueling station at Laurens. The evidence indicates that a relocation of the liquid transfer point was desired because the forklifts were having difficulty traversing the ramp at the northwest corner of the loading dock to reach' the propane tank located approximately 134 feet away when refueling. Fuller admittedly knew that a relocation of the liquid transfer point to some place on the loading dock would violate minimum distance requirements and would have to be approved by the commission. He testified that he contacted the commission for the purpose of obtaining such approval.

At the direction of the director of the commission, a certified inspector for the commission was sent to Laurens to meet with Fuller and officials of Laurens to give advice concerning the relocation of the fueling station. Mr. Jack Owens, the inspector, was accompanied on this trip by Mr. Robbie McMillan. While the testimony of Fuller, Owens, and McMillan varies in some respects, there is no doubt that all three considered the February 6, 1975, visit to be an official visit by an inspector of the commission for the purpose of advising Fuller and Laurens concerning the relocation of the fueling station. Fuller and McMillan testified that several locations were considered and that one location, the northeast corner of the loading dock, was specifically ruled out by Owens because it was too close to Laurens’ main office building as well as being too close to a building that contained telephone circuitry. Owens was apprehensive that a spark from that circuitry might ignite the gas. At trial, Owens could not recall looking at alternate sites but admitted that he considered the northwest corner of the loading dock to be safe and communicated that advice. Fuller further testified that Owens approved the relocation to the northwest corner and the evidence shows he did so without making an inspection within the office or restroom area for possible sources of ignition. Additionally, Owens did not consider the considerable number of people coming and going at that location. Owens’ only consideration in pronouncing the northwest corner of the loading dock as being a safe place for the relocation of the fueling station was that it had good cross ventilation. Owens informed the commission’s director through his inspector’s report of his visit. His report contained the following language:

“I went with Mr. Fuller and checked and gave advice of how to install butane for forklifts.”

After hearing all of the evidence, the trial court concluded that Owens did in fact approve the relocation of the fueling station; our review of the record substantiates this conclusion.

Under La.R.S. 40:1845, the inspectors as well as the director are charged with the enforcement of the commission’s rules and regulations. Mr. Ortego, the director of the Liquified Petroleum Gas Commission, testified that inspectors are required to communicate to him any exceptions to the minimum distance regulations. Owens knew on February 6,1975, that the purpose of his official inspection was to give advice on the relocation of the fueling station. In connection therewith, we conclude that he conducted a negligent and faulty inspection and gave faulty and incomplete advice.

Knowing of the dangerous nature of liquified petroleum gas and that his purpose was to insure the safe use of the substance, and being charged with knowledge of the rules and regulations of the commission and their enforcement, Owens was under an obligation to instruct the dealer and the officials of Laurens not to move the liquid transfer point until the sketch had been submitted, reviewed and approved by the director. In short, in addition to his duty to make an adequate inspection, Owens also had a duty to see that all of the rules and regulations of the commission were complied with. This he failed to do and his negligent acts of omission as well as those of commission are imputable to the commission.

It is well settled in our jurisprudence that the degree of care owed others increases in relation to the inherent danger. McCormick v. Firestone Tire & Rubber Co., 328 So.2d 911 (La.App. 4th Cir. 1976). Likewise, those who deal in or handle dangerous substances or agencies such as explosives, electricity, gas, firearms, combustibles, and fireworks are held to an extraordinary degree of care. Blackshere v. Kemper Insurance Co., et al, 352 So.2d 275 (La.App. 2nd Cir. 1977). There is no question but that liquified petroleum gas is an inherently dangerous substance. Geismar v. General Gas Corp., 182 So.2d 769 (La.App. 1st Cir. 1966).

The Liquified Petroleum Gas Commission is the ultimate authority on liquified petroleum gas in the state of Louisiana. By virtue of Owens’ actions, which created the dangerous situation, the commission certainly had at least constructive notice of the hazardous conditions which violated their rules and regulations. See Jones v. City of Baton Rouge, 388 So.2d 737, 740 (La.1980).

We therefore conclude that the negligence of the inspector of the commission in approving the relocation of the fueling station in violation of the commissions’ rules and regulations was a cause in fact of plaintiff’s injury. Under the circumstances of this case, the inspector’s negligent conduct was a substantial factor in bringing about the accident which resulted in plaintiff’s injury.

The rules and regulations of the commission are obviously promulgated as a safety measure to afford a maximum degree of protection to all of those who deal with or are exposed to liquified petroleum gas, a highly dangerous substance. In order to rationally interpret and implement the purpose behind such safety regulations, they must be construed in such a manner to extend protection against the risk of the hazard that an inattentive, negligent forklift driver, here Lowery, might pull away from the point of liquid transfer without disconnecting the filler hose. The injuries which plaintiff sustained are a natural and direct consequence of appellant’s violations of its duty to make a thorough and proper inspection regarding the safety of the liquid transfer point relocation and to see that its rules and regulations were enforced. It was this type of injury which the specific regulations violated contemplated to protect against. In this case, to deny recovery to plaintiff would nullify the duty imposed by the rules and regulations, rendering their protection meaningless.

The failure of the commission through its inspector, Owens, to properly enforce its own rules and regulations created an undue risk of harm to all persons traveling through the area where the transfer point was located. The resulting harm to plaintiff was certainly not so highly extraordinary as to be unforeseeable within reason. In fact, according to the testimony of A. J. Scardino, plaintiff’s expert witness, it was not a question of if such an accident would happen but when it would happen. Therefore, appellant’s duty included the protection against this foreseeable consequence. Under the specific facts of this case, the inattentiveness of Lowery created a risk factor that fell within the protective scope of the specific duty violated. See Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (La.1962).

Law and reason support the conclusion herein that appellant should not be relieved of liability. We therefore hold that appellant’s duty to properly inspect, give adequate and complete advice, and to insure that its rules and regulations are complied with includes protection against such a foreseeable consequence as occurred in the instant case. Accordingly, we affirm the trial court’s finding of liability on the part of the appellant for the damages suffered by plaintiff.

Appellant finally argues that it cannot be held liable in this case even if inspector Owens was negligent because any duty breached by Owens was owed to the public generally and not to any particular member of the public. In support of this “public duty doctrine” theory appellant cites the case of Dufrene v. Guarino, 343 So.2d 1097 (La.App. 4th Cir. 1977), writ denied 343 So.2d 1069 (La.1977).

As stated recently by our Supreme Court in Stewart v. Schmieder, 386 So.2d 1351 (La.1980) at page 1357:

The “Public Duty Doctrine” has come under considerable attack in recent years. It has been called “in reality, a form of sovereign immunity.” Adams v. State of Alaska, 555 P.2d 235, 241 (Alaska 1971). One court has said that it sets up just the type of “proprietary” and “governmental” distinction that was disposed of by the abolition of sovereign immunity. Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). It has also been criticized because it places the costs of inadequate performance on the shoulders of the innocent victims of official neglect, rather than spreading the costs of such neglect throughout society. 39 Albany L.Rev. 599, 601 (1975). The doctrine is also said to be predicated largely upon the erroneous assumption that, without it, a municipality would be subjected to crippling judgments because of the negligence of its employees, a fear which also hampered the abrogation of sovereign immunity. 13 Colum.J.L. and Social Problems 303 (1977). The doctrine also has the effect of removing a great deal of the incentive for public bodies to see that the functions of government are carried out responsibly and with reasonable care. The need for governmental responsibility in the modern world was a major factor in this court’s action in abandoning the doctrine of sovereign immunity in Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Co., 273 So.2d 19 (La.1973). It is noteworthy that in a number of states where the doctrine is applied it has been seriously eroded in recent years. See, e.g. Oleszczuk v. State of Arizona, 124 Ariz. 373, 604 P.2d 637 (1979); Sanchez v. Village of Liberty, 49 A.D.2d 507, 375 N.Y.S.2d 901 (1975).
This court has not before now had occasion to consider the applicability of the “public duty doctrine” in Louisiana. We have, however, in many instances, held governmental entities or public officials liable for the breach of duties which, at first blush, appear to be owed to the public rather than any individual. For example, the maintenance of highways and streets by the state and local governments is an undertaking that benefits the general public and is not carried out for any particular individual. Nevertheless, we have not hesitated to find the state or local entities liable for failure to maintain the streets and highways in a reasonably safe condition. United States Fidelity & Guaranty Co. v. State of Louisiana, Through the Dept. of Highways, 339 So.2d 780 (La.1976); Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Vervik v. State of Louisiana, Dept. of Highways, 302 So.2d 895 (La.1974). Similarly, the incarceration of criminals would appear to be a duty owed to the public in general but when the custodian’s negligence in allowing an escape causes injury to an individual, the custodian may be held liable. Frank v. Pitre, 353 So.2d 1293 (La.1978). Furthermore, in Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971), we held that a city might be held liable for the wrongful performance of a duty in many respects similar to that of the issuance of building permits. In that case we held that the plaintiff’s allegation that the city had authorized the creation of new subdivisions, with the knowledge that such authorization would cause flooding, thereby increasing the plaintiff’s peril of flooding, stated a cause of action.
Therefore, under the jurisprudence of this state, the mere fact that a duty is of a public nature, and benefits the general public, does not require a conclusion that the city cannot be found liable for the breach of that duty.

In Stewart, supra, the Court held the city parish liable for the negligence of its building inspector and, in our opinion, effectively rejected the “public duty doctrine.”

As in Stewart, supra, inspector Owens and the commission had the power and duty to inspect the premises at Laurens Glass to insure its rules and regulations were complied with and that any proposed installations were “prosecuted safely.” We hold that in this case the commission was charged with the special duty to conduct a proper inspection and render proper and complete advice regarding the relocation of the liquid transfer point — a special duty in favor of an individual who could foresee-ably be injured by accidents resulting from its failure to do so.

We conclude, as did the Supreme Court in Stewart, supra, that a finding of liability on the part of the Louisiana Liquified Petroleum Gas Commission is not precluded by the jurisprudence of this state under the “public duty doctrine.”

The evidence adduced at trial is clear that dealer Fuller had apprehensions about the relocation of the fueling station or liquid transfer point to the northwest corner of the loading dock. This is evidenced by his offering inspector Owens alternative locations. Obviously, Laurens looked to Fuller for advice about the relocation, and he looked to the commission. However, as one who deals in liquified petroleum gas, he too, is held to that extraordinary degree of care referred to hereinabove. Additionally, Fuller is charged with knowledge of the rules and regulations of the commission even though he testified he was not in possession of a copy of same on February 6, 1975. He, likewise, had a duty to submit a sketch, in duplicate, covering the facts as to the relocation to the director of the commission because admittedly, he knew that the relocation to the northwest corner of the loading dock was an exception to the commission’s rules and regulations. While he testified he relied on the approval of the location by inspector Owens, he, nevertheless, is charged with knowing what his duty was under the rules and regulations. As a permit holder he must comply with all rules and regulations among which include monthly reports to the commission regarding any new installations. This he failed to do. Had Fuller performed his duty after the negligent inspection by Owens instead of simply going forward with servicing the location, the director might well have taken a “second look” at the relocation, possibly rejected and required its removal to a safe location.

Applying the same reasoning discussed above in relation to appellant, by his failure to comply with the rules and regulations of the commission, we conclude that Fuller was concurrently negligent and that his negligence, while in no way absolving the commission, was also a cause which contributed in causing harm to the plaintiff. The negligence of Fuller was responsive to and combined with that of appellant, thereby making him a joint tortfeasor.

In Carlysle v. Aetna Insurance Company, 248 So.2d 64 (La.App. 1st Cir. 1971), an employee of a butane dealer failed to comply with a mandatory inspection required by the rules and regulations of the Louisiana Liquified Petroleum Gas Commission. In holding the dealer liable the court stated at pages 67 and 68:

We are convinced that these Rules and Regulations were adopted for the protection of customers and their premises and not merely for internal regulations within the gas business. Certainly, the language of Section 5.14(h) and (i), supra, supports this interpretation.
Furthermore, we are convinced that the mandatory inspection requirement places the ultimate responsibility on the more knowledgable gas dealer to insure that the system and premises may be used in safety, without regard to whether the occupant is the owner or lessee.

See also Knockum v. Amoco Oil Co., 402 So.2d 90 (La.App. 1st Cir. 1981).

As stated earlier, Fuller was released under the restrictive settlement contained in the Joint Stipulation and Judgment of December 4,1979. However, under the terms of that judgment it was ordered that in the event it was ultimately determined that any one or more of the released defendants was a joint tortfeasor with the state of Louisiana, and as such solidarily liable with it to plaintiff, the amount of any judgment he might obtain against the commission should be reduced by that virile portion. The answer filed by defendant on February 23, 1981, after the trial pled the negligence of Fuller and that pleading was ordered filed by the court. Thus, under Wall v. American Employers Insurance Co., 386 So.2d 79 (La.1980), since the evidence shows Fuller to be a joint tortfeasor, any judgment against the appellant must be reduced by one-half.

Appellant has not discussed in its brief or assigned as an error the trial court’s award of damages in this matter. Therefore, we affirm the damage awards of the trial court:

1. General damages .$ 500,000.00
2. Past medical expenses. 52,746.06
3. Future medical expenses . 9,500.00
4. Past lost earnings and
earning capacity . 625,889.00
TOTAL $1,251,635.06

but reduce this award by one-half to the sum of $625,817.53 for the reasons assigned.

We overrule appellant’s peremptory exception of no cause of action and no right of action.

Accordingly, the judgment of the lower court is amended to reduce the award by one-half. The award shall bear legal interest from date of judicial demand until paid and appellant is cast for all costs here in the amount of $25.00 and in the trial court, including the fees for the expert witnesses and other costs assessed by the Memorandum Opinion on Rule to Tax Costs dated October 27, 1981, in the amount of $16,-100.17.

AMENDED AND AFFIRMED.

      . This office has been moved since the accident into the warehouse building.

      . Dr. Houston Huckaby, plaintiffs expert, testified that in his opinion the probable source of ignition was one of the heaters located in the restroom or the office. It was his opinion that these were the only possible sources of ignition.

      . Mobley was carried by ambulance to the emergency room at Lincoln General Hospital where emergency treatment was administered. He remained in intensive care overnight at Lincoln General and the following day was transferred to the special burn unit at Baton Rouge General Hospital where he remained approximately two weeks. During this time, his condition remained critical. After being released from the burn unit he remained in the hospital until April 25, 1977, when he returned to Lincoln Parish. As the trial judge correctly observed, the process of his recovery from that point was slow and painful. He underwent an extended period of physical therapy and was subsequently hospitalized where he underwent a number of operations designed to correct as much of the effects of the burns as possible. At the time of trial it was also anticipated that additional surgery would be necessary to obtain maximum possible corrective and reconstructive effect. Mobley suffered bums over 60 percent of his body and approximately 50 percent of these burns were of the third degree type. As a result of his injuries, he has been unable to work at any kind of gainful employment since the date of the accident. The prospect of his ever being able to engage in gainful employment is projected as unlikely.

      . The costs were assessed, fixed and taxed by separate rule.

      . This judgment further provided that in the event it was alternately determined that appellant was entitled to indemnification from any one or more of said released defendants then plaintiff was obliged to forthwith cancel said part(s) of such judgment against such party or parties.

      . Under the rule of Harvey v. Travelers Insurance Co., 163 So.2d 915 (La.App. 3rd Cir. 1964), appellant did not have the right to bring any of the released defendants “back into the suit.” However, if appellant proved at trial that any of the released defendants were joint tortfeasors, then the judgment against appellant would be reduced accordingly. We note that under Wall v. American Employers Insurance Co., et al, infra, plaintiff had the right to amend his petition to allege that appellant was the sole tortfeasor and that the burden of proof of any negligence on the part of the released co-defendants was on appellant in order to achieve a reduction in any judgment rendered against it. We distinguish the instant case from Danks v. Maher, 177 So.2d 412 (La.App. 4th Cir. 1965) and Raley v. Carter, 401 So.2d 1006 (La.App. 1st Cir. 1981) writ granted 412 So.2d 1045 (La.1982) where no amended petitions were filed and the settlements and releases took place late in the trial and on the morning of trial respectively. In Danks and Raley the courts held that plaintiffs were bound by their allegations of negligence with respect to the released co-defendants because of the patent unfairness of the late settlements and dismissals. The instant matter does not present a situation of like patent unfairness. The settlement and release occurred on December 4, 1979, some thirteen and one-half months prior to trial and appellant certainly had knowledge thereof sometime prior to December 8, 1980.

      . Compare Vincent v. Ryder Enterprises, Inc., et al, 352 So.2d 1061 (La.App. 3rd Cir. 1977), wherein an amended answer was filed three days prior to trial with leave of court and opposing parties had no notice of the filing prior to trial. The court there found no abuse of discretion.

      . It is conceded that some two years prior to the accident the point of liquid transfer was at the propane tank which was located approximately 134 feet from the building in question.

      . At the time of the inspection made the issue of this suit, McMillan was an ammonia inspector. At the time of trial, he was an inspector for the Liquified Petroleum Gas Commission.

      . The testimony of the plaintiff’s expert witnesses was to the effect that there actually was no cross ventilation at that location because of the roof, warehouse wall, and the parked trucks.

      . See Exhibit P-8.

      . It is noteworthy that after the accident, when Laurens was attempting to again move the propane tank and point of liquid transfer that Mr. Fuller was instructed by the commission not to do anything until after the required sketch had been submitted, approved by the director, and he had received notice of the approval.

      . Two eminently qualified experts, Dr. Houston Huckaby and Mr. A. J. Scardino, Jr., testified that the northwest corner was indeed a dangerous location and should not have been' approved. Mr. Scardino, accepted by the court as an expert in the field of safety and human factor engineering with extensive experience in dealing with liquified petroleum gas, also testified that the fueling station was without doubt located within the prohibited distance of 25 feet and was in fact considered an “inside the building location” because it had a roof over it, a back wall, and the front side of the dock was restricted by the almost constant presence of large trucks backed up to the loading dock. Scardino stated that he “positively” “absolutely” would not have approved the northwest comer as the point of liquid transfer. He further testified that Lowery’s action in failing to disengage the filler hose was a foreseeable occurrence that should have been considered at this particular northwest comer location stating that workers do not drive off with the filler hose still attached on a recurrent basis but that it does happen. He further stated that the rules and regulations of the commission are promulgated with this anticipated occurrence in mind. Additionally, Owens and Ortego testified that they were aware of the occurrence of this type of accident. Scardino further testified that the northwest corner of the loading dock at Laurens was indeed an area likely to have an accident of the nature that occurred in this case. His opinion was that it was not a question of if the accident would happen but rather one of when it would happen.

      . Refer to footnote 13, supra.

      . See also Malone, Ruminations on Dixie Drive it Yourself Versus American Beverage Company, 30 La.L.Rev. 363 (1970); and McDonald, Proximate Cause in Louisiana, 16 La.L. Rev. 391 (1956).

      . We note in our review of the record that there is ample evidence to determine that Lowery’s pulling away from the fueling station without disconnecting the filler hose from the forklift’s fuel container was an act which was a contributing factor in the occurrence of this accident. However, because the exclusive remedy provision of the Workmen’s Compensation Act as found in La.R.S. 23:1032 is applicable to the instant situation, Lowery is granted immunity from civil liability for any negligent injury of a fellow employee while engaged in the course and scope of his employment. See Fox v. Commercial Union Ins. Co., 396 So.2d 543 (La.App. 3rd Cir. 1981). Since there can be no tort liability on the part of Lowery to plaintiff, he cannot be liable for contribution as a joint tortfeasor. See Waggoner v. Kellogg-Moore Oil Co., Inc., 375 So.2d 197 (La.App. 2d Cir. 1979). It therefore follows that because Lowery cannot by law be held to be a joint tort-feasor, thus liable for contribution, the judgment here cannot be reduced by his virile contribution. It is further noted that we find Lowery’s action to be entirely foreseeable and to be the very type of risk that the rules and regulations were designed to protect Mobley against.

      . The evidence shows conclusively that plaintiff suffered burns over 55-60 percent of his body, and that one-half of these burns were of the third degree type. The trial court determined that plaintiff suffered a “great amount of pain” at the time of the injuries and in spite of sedation during the extended period of treatment and recovery to the date of trial and still faced much more pain and suffering in the future from the plastic and reconstructive surgery projected by Dr. Worthen. Plaintiffs skin will continue to be extremely sensitive to slight variations in temperature making it necessary to live in a controlled climate situation. His face is badly disfigured and he has extensive, permanent injuries to his hands, arms, neck and entire upper torso. His voice changed due to damage to his vocal cords. He can no longer sing or play the guitar. Once an avid hunter, fisherman and ball player, he is for the most part unable to normally engage in these activities. Future projected surgical procedures will not produce anything near total recovery but will provide him with some additional mobility for parts of his head, limbs and body now restricted in movement. They will only partially alleviate some of the gross facial and body disfigurements. Therefore, it is an understatement to say that plaintiff is totally and permanently disabled. He has suffered mental and emotional trauma from his injuries. His marital relationship will never be what it was prior to the accident. The trial court aptly described the extent of plaintiff’s injuries when it concluded:
      “In view of this comparison and in the light of the other testimony, both lay and expert, concerning his condition and the effects of the injuries upon him, it is apparent that the Larry G. Mobley shown in the photographs, ... and as he is described prior to February 26, 1977, is gone, never to return again as an integral personality. Only broken fragments remain behind. No part of his physical being and abilities is unaffected by his injuries.”
      After reviewing the record, we are of the opinion that the trial court’s findings of fact regarding the extent of plaintiff’s injuries and disability are well founded as are the monetary damages awarded therefor.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Terry J. HILL v. Gloria Ann HILL.
    No. 82-CA-0064.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 1982.
    Guy A. Módica, Baton Rouge, for plaintiff-appellant Gloria Ann Lee Hill.
    Fred H. Belcher, Baton Rouge, for defendant-appellee Terry J. Hill.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Terry J. Hill, plaintiff-appellee, moves to dismiss this devolutive appeal on the grounds that it was not perfected within the delays authorized by law. This case involves a change of custody award of the two minor children born of the marriage between Terry J. Hill and Gloria Ann Hill, appellant, which gave appellee custody. Pertinent dates and facts are as follows:

1. October 14, 1981 Judgment changing custody was rendered.
2. October 21, 1981 Judgment signed.
3. October 22, 1981 Appellant filed application for supervisory and remedial writs, which were denied by the court on the same date.
4. November 30, 1981 Appellant filed motion for appeal with East Baton Rouge Parish Clerk of Court.
5. December 2, 1981 Order of appeal signed by trial judge.

The last date on which appellant’s motion for appeal could have been timely filed was November 30, 1981. La.C.C.P. 2087, 3942, and 3943. The notice of appeal bears the Clerk of Court’s stamp indicating that the motion was filed in that office on November 30, 1981. This fact is also supported by the affidavit of Gary Dale, an employee of Courthouse Courier, Inc., stating that he filed appellant’s motion for appeal with the Clerk’s Office on November 30, 1981. Apparently the motion did not reach the trial judge’s desk until December 2, 1981, at which time he signed the order for appeal which was then marked filed by the Family Court.

In Traigle v. Gulf Coast Aluminum Corporation, et al., 399 So.2d 183, at p. 186 (La.1981), our Supreme Court stated the applicable rule:

When an appellant timely files an order of appeal with the clerk of court, he has delivered it to a public official who has a duty to obtain the judge’s signature thereon or sign it himself. When a timely filed order of appeal is not signed during the delay period, this is not a fault or defect imputable to the appellant. LSA-C.C.P. art. 2161 mandates that no appeal shall be dismissed unless the error or fault is imputable to the appellant. Therefore, no appeal shall be dismissed when the motion for appeal is filed timely but the order is not signed until after the delay has run.” (footnotes omitted)

The holding in Traigle was followed by this court in E. D. Haber Heating & Air Conditioning, Inc. v. Koppenal, 399 So.2d 1224 (La.App. 1st Cir. 1981).

For the above reasons, the motion to dismiss this appeal is denied at mover’s costs.

MOTION TO DISMISS DENIED.


author: COLE, Judge.

text:
    Eddie HARPER v. HOUSING AUTHORITY OF MONROE.
    No. 82 CM 0053.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 1982.
    Laura Denson Holmes, Baton Rouge, for Civil Service Commission.
    Willie Hunter, Jr., Monroe, for Eddie Harper.
    A. Richard Gear, Monroe, for Housing Authority of Monroe.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This litigation is before us on a motion to dismiss. Defendant-mover, Housing Authority of Monroe (herein referred to as the Housing Authority), argues the appeal should be dismissed because it was not filed timely. We agree and therefore grant the motion.

Appellant, Eddie Harper, was dismissed from his position with the Housing Authority on September 24, 1979. He then appealed his dismissal to the State Civil Service Commission (herein referred to as the Commission). On October 30,1981, the Commission issued and filed with its Director a decision upholding appellant's dismissal. Under Rule 13:28(a) of the Commission, the decision becomes final on the day it is filed with the Director.

On December 8, 1981, the Commission received appellant’s notice of appeal setting forth an assignment of errors. However, appellant neither designated the portions of the record he desired to be incorporated into the transcript, nor did he file a bond for costs in the sum of $100.00, requirements of Sections 1 and 2 of Rule XYI of the Uniform Rules — Courts of Appeal. On December 10, 1981, the Commission received appellant’s designation of the record, as well as the $100.00 bond.

Article X, Section 12 of the Louisiana Constitution of 1974 provides for a thirty-day period during which one may appeal a final decision of the Commission. In the very recent case of Smith v. Dept. of Health and Human Resources, 407 So.2d 498 (La.App. 1st Cir. 1981), writs granted February 5th and 8th, 1982 (Nos. 81-C-3266 and 81-C-3283 pending on the docket of The Supreme Court), we held the Administrative Procedure Act (La.R.S. 49:951 et seq.) requires the Commission provide appellant a ten-day period in which to apply for a rehearing. Under the reasoning of Smith, appellant had a total of forty days within which to file his appeal.

The Commission argues in brief that Smith was in error in holding the Administrative Procedure Act requires it to provide a ten-day period during which a party may request a rehearing. It contends the Constitution places Civil Service rules on equal footing with state statutes and, therefore, the Administrative Procedure Act does not derogate the rules of the Commission. The Housing Authority adopts this position of the Commission and further asserts that even under Smith, this appeal was not timely.

The constitutional question now raised was not presented in Smith. The opinion in Smith was rendered on November 23, 1981. At that time the Commission was not a formal party to the proceedings. It moved to intervene on December 11, 1981, and the motion was granted on December 14, 1981. Our rules not permitting a rehearing (Rule XI, Section 6, Uniform Rules — Courts of Appeal), the Commission, as intervenor, and the appellee, then applied individually to the Supreme Court for a writ of review.

After Smith, this court was called upon to act upon a writ application in Guillory v. Department of Transportation and Development, Number 82 CW 0007 on our docket. On January 25, 1982, concerning the applicability of the provisions of the Administrative Procedure Act to proceedings then pending before the Commission, other members of this court held:.

“The Administrative Procedure Act does not supersede civil service procedural regulations adopted pursuant to the civil service commission’s constitutional grant of rule making power. See Louisiana Constitution of 1974, Article X, Section 10; Louisiana Consumer's League, Inc. v. Louisiana Public Service Commission, 351 So.2d 128, (La.1977).”

Thus, there is seemingly a lack of unanimity among this court as regards the thrust of our ruling in Smith. Not being permitted to review or alter our decision in Smith due to its present posture, but recognizing its lack of finality, we now question our assertion therein that where there is a conflict between Civil Service rules and a state law the state law controls. However, we find it unnecessary to address the constitutional argument now so forcefully and persuasively presented by counsel for the Commission. Even under the holding in Smith, the appeal in this case is untimely.

Appellant initially gave notice of appeal in accordance with Civil Service Rule 13:11 on December 8, 1981, thirty-nine days after the decision of the Commission. However, at that time, appellant failed to file the $100.00 appeal bond required by Rule XVI, Section 2 of the Uniform Rules — Courts of Appeal. On December 9th appellant mailed the bond, together with his filing fee, to the Commission. The bond was received by the Commission on December 10th, the forty-first day subsequent to the Commission’s decision.

The appeal bond must be filed within the appropriate delay in order to perfect an appeal from a decision of the Commission. In Calvin v. State Department of Hospitals, 252 So.2d 748 (La.App. 1st Cir. 1971), this court stated:

“Unquestionably, the matter of fixing the prescribed time within which an appeal bond must be filed has a procedural aspect and connotation, but also it is directly concerned with appellate jurisdiction. Appellant’s failure to file his appeal bond within the time prescribed by Sec. 4 of Rule XVI, Uniform Rules of the Courts of Appeal, strikes at the foundation of the appellate process, and this defect could not be cured by the subsequent filing. Therefore this court did not obtain appellate jurisdiction of this appeal.”

Rule 13:12 of the Commission provides no appeal shall be effective unless a written notice is either received in the office of the Director or postmarked within the thirty-day delay provided. Taking the position Smith broadened the delay from thirty days to forty days, appellant contends his appeal bond was filed timely since it was postmarked on the fortieth day after filing of the decision.

In Smith, we noted there is a conflict between Article X, Section 12 of the Constitution which provides an appeal from a final decision of the Commission is effective when it is “filed,” and Rule 13:12 which requires only that the appeal be postmarked within the delay period. Relying upon Lambert v. Kelly, 270 So.2d 532 (La.1972), we stated, at page 499:

“We note there is an apparent conflict between the Constitution and the Civil Service rule. Under the Constitution the appellant has thirty days from the date the decision becomes final in which to file an appeal. We agree that an appeal is filed when it is received by the appropriate official. Lambert, supra. Yet Civil Service rule 13:12(a) clearly states the appeal need only be postmarked within thirty days after the date the appellant received notice.
“Because a more important issue arises in this case, we need not decide this matter on the basis of the above conflicting rules. It is obvious in a situation where the Constitution conflicts with the Civil Service Rules, the Constitution, being the highest law in the state, prevails.”

While we felt it unnecessary to squarely address the issue in Smith, the implication was clear and we now hold the appeal, together with the appeal bond, must be actually received by the Commission within the appropriate delay. Thus, even as interpreted by Smith, the appeal bond in this instance was not received timely and we are therefore without jurisdiction to consider the appeal. Accordingly, the appeal is dismissed. Appellant is to pay all costs.

MOTION GRANTED, APPEAL DISMISSED.


author: FORET, Judge.

text:
    Charles Lee FISHER, Plaintiff-Appellant, v. SEACOAST PRODUCTS, INC., Defendant-Appellee.
    No. 82-126.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 1982.

      Edwards, Stefanski & Barousse, Homer Barousse, Crowley, for plaintiff-appellant.
    Stockwell, Sievert, Yiccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, for defendant-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   FORET, Judge.

MOTION TO DISMISS

The defendant-appellee, Seacoast Products, Inc., moves to dismiss the appeal of the plaintiff-appellant, Charles Lee Fisher, as not being timely filed.

We dismiss the plaintiff-appellant’s appeal.

The pertinent facts, briefly stated, are as follows: This is a tort suit filed by the plaintiff-appellant for damages against defendant-appellee, Seacoast Products, Inc. The trial of this case was commenced and completed on August 12, 1981. At the conclusion of plaintiff’s evidence a motion for a directed verdict was granted to the defendant appellee, Seacoast Products, Inc. Counsel for plaintiff-appellant was present when the motion was made and granted by the trial court. The formal judgment rendered on August 12, 1981 was read and signed in open court on September 4, 1981.

Plaintiff-appellant filed this appeal on February 8, 1982. On March 11, 1982, defendant-appellee filed this motion to dismiss this appeal as untimely.

Plaintiff-appellant contends that the delays for the appeal did not begin to run until December 11, 1981 at which time the judgment was filed by the Clerk of Court’s office.

The date of filing,of the judgment by the Clerk of Court’s office is meaningless for purposes of fixing the time for appeals. The crucial time is the date of the signing of the judgment. All pertinent time periods affecting appeals are tied to the date the judgment is signed. See LSA-C.C.P. arts. 1974 and 2087.

In the instant case the judgment was signed in open court on September 4, 1981 and no notice of judgment was required or requested. Therefore, the delays for filing a motion for a new trial began to run on the next day, September 5,1981 and expired on the seventh day thereafter, exclusive of legal holidays, or on September 16, 1981. LSA-C.C.P. art. 1974. The appellant did not apply for a new trial therefore the appeal delays began to run on September 17, 1981. Plaintiff-appellant filed this appeal on February 8, 1982. It is therefore clear that appellant did not file his appeal timely within 60 days as mandated by LSA-C.C.P. 2087.

For these reasons, appellant’s appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: STOKER, Judge.

text:
    Mitchel Langfried LAMARTINIERE, et al., Plaintiffs-Appellees, v. FRINGE FACTS, INC., et al., Defendants-Appellants.
    No. 8599.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 1982.
    Conner, Martinez & Miles, William W. Miles, Metairie, for defendants-appellants.
    Nelson Lee & Associates, Dan McKay, Bunkie, for plaintiffs-appellees.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

MOTION TO DISMISS

Fringe Facts, Inc., defendant-appellant, appeals from a judgment condemning him to pay $19,033.20, 7% legal interest and $3,000.00 attorney’s fees to plaintiff-appel-lee Mitchel Langfried Lamartiniere together with court costs. We dismiss the appeal as not being timely filed.

This action came before the trial court on September 23, 1980, on confirmation of default. On the same date judgment was read, rendered and signed in favor of plaintiff-appellee and against defendant-appellant. Appellant did not apply for a new trial. On April 21, 1981, the appellant submitted a new judgment to the trial court which was rendered that day and signed on April 24, 1981. On June 11, 1981, the defendant-appellant applied for and was granted a devolutive appeal. Under these circumstances, we dismiss the appeal ex proprio motu.

When an appellant fails to timely take and perfect his appeal, the appellate court lacks jurisdiction to hear the appeal. In such instances, the appellate court may, on its own motion, recognize its lack of authority to entertain the appeal and dismiss same. Siracusa v. Kramer, 271 So.2d 546 (La.App. 1st Cir. 1972).

LSA-C.C.P. art. 2087 provides the time delays for taking a devolutive appeal:

Art. 2087. Delay for taking devolutive appeal
Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.
Amended by Acts 1962, No. 92, § 1; Acts 1976, No. 201, § 1; Acts 1977, No. 174, § 1, eff. Jan. 1, 1978.

Judgment was read, rendered and signed on September 23, 1980. No motion for a new trial was filed by defendant-appellant. The seven days for that application and the sixty days for perfecting a devolutive appeal elapsed before any action was taken by appellant.

The fact that defendant-appellant submitted a second judgment for the court’s signature and had such a judgment signed does not extend the delays for appeal. The second judgment was identical to the first judgment. No additions or corrections were made. It was clearly submitted to the court to serve as a device for the extension of the delays for appeal. Since the order of appeal was obtained after applicable delays, the appeal must be dismissed.

APPEAL DISMISSED.


author: LABORDE, Judge.

text:
    Mack H. POWELL, et al., Plaintiff-Appellees, v. C. C. FERGUSON, Defendant-Appellant.
    No. 82-94.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 1982.
    Thomas G. Wilson, Colfax, for plaintiff-appellee.
    Offices of Bobby L. Culpepper by Jimmy C. Teat, Jonesboro, for defendant-appellant.
    Stafford, Stewart & Potter, Walter E. May, Alexandria, for defendant-appellee.

      Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

C. C. Ferguson, defendant-appellant, appeals from a judgment granting the exception of prescription filed by third party defendant Joe Morgan. We dismiss the appeal as to Joe Morgan as not being timely filed.

An exception of prescription was filed in this action by third party defendant Joe Morgan on October 16,1980. On December 22,1980, the trial court signed a final judgment in favor of Joe Morgan sustaining the exception of prescription and dismissing him from the suit. Trial between the remaining parties was begun on September 16, 1981 and on December 15, 1981, judgment was read, rendered and signed in favor of the plaintiffs-appellees, Mack H. Powell and Doris Poissot, and against the defendant-appellant, C. C. Ferguson. Appellant did not apply for a new trial. On December 23, 1981, appellant applied for and was granted a devolutive appeal. Third party defendant Joe Morgan became aware of appellant’s intention of appealing as to him upon receipt of appellant’s brief filed on March 10, 1982. Mr. Morgan filed a motion to dismiss with this court on March 19, 1982.

When an appellant fails to timely take and perfect his appeal, the appellate court lacks jurisdiction to hear the appeal. Siracusa v. Kramer, 271 So.2d 546 (La.App. 1st Cir. 1972).

In Sewerage and Water Board of New Orleans v. Sanders, 246 So.2d 734 (La.App. 4th Cir. 1971), it was held that a judgment maintaining an exception of prescription is a final judgment.

LSA-C.C.P. art. 2087 provides the time delays for taking a devolutive appeal:

Art. 2087. Delay for taking devolutive appeal
Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.
Amended by Acts 1962, No. 92, § 1; Acts 1976, No. 201, § 1; Acts 1977, No. 174, § 1, eff. Jan. 1, 1978.

The trial court signed the judgment sustaining the exception of prescription in favor of Joe Morgan on December 22,1980. No motion for a new trial was filed by defendant-appellant. The seven days for that application and the sixty days for perfecting a devolutive appeal elapsed before any action was taken by appellant. Since the order of appeal was obtained after applicable delays, the appeal must be dismissed as to Joe Morgan.

APPEAL DISMISSED.


author: WALKER, Justice, HAWKINS, Justice,

text:
    PLANHOUSE, INC. (Formerly The House of Plans, Inc.) and Jack B. Hughes v. BRELAND & FARMER DESIGNERS, INC. (Formerly The Plan Shop, Inc.).
    No. 52972.
    Supreme Court of Mississippi.
    March 10, 1982.
    Rehearing Denied March 31, 1982.
    William P. Featherston, Jr., Jackson, for appellants.
    Stephen Beach, III, Beach, Luckett, & Ross, Jackson, for appellee.
   WALKER, Justice,

for the Court.

Planhouse, Inc. and Jack B. Hughes appeal from a final decree of the Chancery Court of the First Judicial District of Hinds County awarding the appellee, Breland & Farmer Designers, Inc., $21,503.95 in damages and permanently enjoining the defendants, Planhouse and Hughes from using residential house plans belonging to Breland & Farmer Designers, which had been wrongfully taken by Hughes.

The issues we address on this appeal are the propriety of the award of $21,503.95 damages, and the issuance of the injunction.

We reverse the award of $21,503.95 in damages, reverse and render on the issuance of a permanent injunction, and remand for a hearing by the chancellor to determine the amount of damages Breland & Farmer Designers is entitled to recover from Planhouse and Hughes in accordance with this opinion.

In 1973 Jack B. Hughes and wife of Edsel E. Breland formed The Plan Shop, Inc., a domestic close corporation which thereafter engaged in the business of designing and selling house plans. Breland and Hughes are residential designers.

Some time thereafter, the corporation employed John L. Farmer, an architectural designer. These three men later became equal shareholders in the corporation and each became an officer and director.

While each had specific business duties, all three had the common duty of designing and drafting house plans, which were marketed on a mass basis. The work product belonged to the corporation. Using statistical data, the corporation would learn which type houses had a mass appeal. Then, using the expertise of the three, plans would be drawn and advertised in a magazine or catalogue published by the corporation.

The procedure whereby plans were drawn and marketed was as follows: Each house plan initially was drawn upon a transparent paper called vellum. The plan would then be duplicated on a durable plastic material called mylar. Whenever the corporation received an order for a house plan, blueprints of the plan would be printed from the my-lar. This process could be repeated almost endlessly, at least one thousand times without injury to the mylar. Blueprints of each house plan consisted of five to eight sheets.

The original vellum drawing could also be reproduced on a material called sepia, which was used in individual instances when a customer wanted to make some change in the plan. After duplication on the sepia of the portion of the plan upon which a change was desired, erasures could be made and the plan redrawn to the customer’s specification. A blueprint could then be printed from the sepia the same as from mylar. Sepia lacked the durability of mylar, however, and would only be used in special cases.

The original plan, whether on vellum, mylar or sepia was retained and owned by the corporation. Customers received only the blueprints.

While an officer and director, Hughes duplicated approximately 74 of these plans from vellum onto sepia and stored them at his home. He stated at the trial his purpose in doing so was to protect the original plans in event of fire or other casualty. However, this duplication was done without the knowledge of the other two shareholders.

In May, 1977, two shareholders, Breland and Farmer, enforced a buy/sell agreement whereby any two shareholders could purchase the stock of the third at a stipulated price. Pursuant to a chancery court action Hughes was directed to sell his interest in the corporation for $5,000.00. Hughes thereupon sold his stock to the corporation in November, 1977, and severed all connection with the business. He retained all plans which he had theretofore duplicated on sepia and said nothing about it to the other shareholders.

There was no agreement not to compete between the shareholders, and shortly after the forced sale of his interest, Hughes formed a corporation named Planhouse, Inc., in which he was the sole shareholder. Beginning in March, 1978, Planhouse (Hughes), using the sepia plans duplicated onto mylar, published a magazine or cata-logue which was distributed to the public and engaged in the same business as The Plan Shop. The plans advertised by Plan-house were the same as those advertised by The Plan Shop.

By using these sepia plans, Planhouse (Hughes) was able to begin business more quickly than would have been the case had he attempted to reproduce the plans from blueprints.

In taking the sepia copies of the house plans and duplicating them onto mylar, Planhouse (Hughes) saved time and expense in getting into business.

Upon seeing advertisements of Plan-house, The Plan Shop, which in the interim had changed its corporate name to Breland & Farmer Designers, Inc., instituted chancery court proceedings against Hughes and Planhouse for an injunction to prohibit Planhouse’s use of the plans, an accounting and damages. The bill of complaint alleged, among other things, that Hughes had violated a fiduciary duty he owed the corporation in unlawfully copying the plans and using them in competition with Breland & Farmer Designers, after leaving the corporation.

Following trial in which it was stipulated Planhouse (Hughes) had realized a profit of $21,503.95 from sale of house plans, the chancellor ruled that Hughes had violated his fiduciary duty to the corporation in copying the plans onto sepia, and thereafter using them.

The chancellor permanently enjoined Planhouse and Hughes from any use of the plans taken from Breland & Farmer Designers, and awarded the complainant damages in the amount of $21,503.95.

The plans which Hughes had copied onto sepia while an officer and director of the corporation constituted property, which clearly belonged to Breland & Farmer Designers. They were made by him while employed by the corporation, with equipment belonging to the corporation, and on sepia belonging to the corporation. As such, the corporation had a clear property right to these sepia plans in the possession of Hughes and of the use which could be made of them.

While Hughes was an officer and director of the corporation, he occupied a trust relationship and owed a fiduciary duty to the corporation. American Empire Life Ins. Co. v. McAdory, 319 So.2d 237, 240-241 (Miss.1975); Knox Glass Bottle Company v. Underwood, 228 Miss. 699, 89 So.2d 799 (1956). This duty carried with it the obligation to return the sepia plans in his possession which belonged to the corporation when he ceased having any business connection with the corporation. He violated this duty, and did not reveal to Breland & Farmer Designers that he had the plans. In Van Zandt v. Van Zandt, 227 Miss. 528, 538, 539, 86 So.2d 466, 470 (1956), we stated:

‘[T]he relationship of principal and agent, being confidential and fiduciary in character; demands of the agent the utmost loyalty and good faith to his principal. Any breach of this good faith whereby the principal suffers any disadvantage and the agent reaps any benefit is a fraud for which the agent will be held accountable, either in damages or by judgment precluding the agent from taking or retaining the benefits so obtained.’ (Emphasis theirs).
‘It is the prevailing rule that, as between persons sustaining a fiduciary or trust or other confidential relationship toward each other, the person occupying the relation of fiduciary or of confidence is under a duty to reveal the facts to the plaintiff (the other party), and that his silence when he ought to speak, or his failure to disclose what he ought to disclose, is as much a fraud at law as an actual affirmative false representation or act.’

Planhouse and Hughes argue on appeal that since the plans were neither confidential nor trade secrets they consequently had no value, and they therefore committed no wrong in using them in their business. It is true Hughes was free to engage in competition with his former associates, using the information, skill and knowledge he had acquired while thus associated with them. However, although the ideas and information set forth on the plans did not constitute private property of the complainant, the reproduced physical sepia copies did. He had a fiduciary duty to deliver them to Breland & Farmer Designers when he ceased being an officer and director and having any business connection with the corporation. It is the violation of this duty for which Breland & Farmer Designers is entitled to redress. By violating the duty, Hughes was able to immediately reproduce the plans and offer the reproduced copies for sale to the general public. Without the sepia copies, it would have taken Hughes a considerable length of time to reproduce the same plans from a book of plans available on the market.

Planhouse (Hughes) began business in competition with the complainant, Breland & Farmer Designers, in March, 1978. The bill of complaint was filed June 5, 1979. Trial was begun October 24, 1980. There was a twenty-month lapse from the time the defendants (Planhouse and Hughes) began business until trial.

It is clear in this case that even if the defendants had wrongfully appropriated a trade secret from complainant, they could have secured for themselves the same position by lawful means, and without using the wrongfully appropriated plans, in far less time than twenty months.

The chancellor was in error in granting complainant a permanent injunction against defendants from use of the complainant's plans. Even where trade secrets have been wrongfully used by former employees, the majority rule, and one which courts generally apply, is the former employer is entitled to injunctive relief for no longer period than it would take the former employee to secure the same information or same position by independent means, and without resort to the trade secret. Anaconda Co. v. Metric Tool & Die Co., 485 F.Supp. 410 (D.Pa.1980); Schulenburg v. Signatrol, Inc., 33 Ill.2d 379, 212 N.E.2d 865 (1965); Northern Petrochemical Co. v. Tomlinson, 484 F.2d 1057 (7th Cir. 1973); K-2 Ski Co. v. Head Ski Co., Inc., 506 F.2d 471 (9th Cir. 1974). Therefore, the permanent injunction is hereby dissolved.

A similar question to this case was presented in Midland-Ross Corporation v. Yokana, 185 F.Supp. 594 (D.N.J.1960). In that case a former employee, Yokana, was charged with numerous violations of duties to his former employer, including taking with him drawings and blueprints, customer lists, cost calculations and pricing data. The district court declined to enjoin Yokana from engaging in business, but did direct the return of the documents he had taken, and an interlocutory appeal was taken by the plaintiff.

The district court was affirmed in Midland-Ross Corporation v. Yokana, 293 F.2d 411 (3rd Cir. 1961). The court stated:

We have before us in this case two perfectly well established principles. One is that an employee after leaving the service of an employer may carry on the same business on his own and use for his own benefits the things he has learned while in the earlier employment. If this were not so an apprentice who has worked up through the stages of journeyman and master workman could never become an entrepreneur on his own behalf. Any such system of quasi-serfdom has long since passed away. Necessarily the former employee may use what he learned in the former employer’s business while engaged in business for himself or some business competing with the former employer. All this is set out in the Restatement of Agency, Second, §§ 396 and 393, especially in comment e (1958).
Equally clear is the proposition that the employee owes a duty of loyalty to the employer. He must not, while employed, act contrary to the employer’s interests, and, in general terms, owes a duty of loyalty as one of the incidents of the employer-employee relationship. Restatement of Agency, Second, § 387. These two general propositions are well settled and, in the broad terms just stated, could not be successfully disputed by anyone. The question is on which side of the line the present case falls.

The court of appeals then agreed with the lower court that there had been no trade secrets involved, and the documents taken by Yokana should be returned.

We can understand the chancellor’s reasoning in this case in not directing a return of the plans wrongfully taken, which he had the authority to do, as was directed in Midland-Ross v. Yokana, supra. This directive in and of itself would have been of no benefit to complainant because the plans had been duplicated onto mylar, and there had been an irrevocable conversion of these plans by defendants to their own use.

We have carefully considered the record in this case and are of the opinion that the chancellor erred in assessing damages in the amount of profits realized by Hughes (Planhouse) from sale of the reproduced plans up until time of trial. This element of damages should have been fixed at the amount of profits made by Hughes (Planhouse) from the sale of the reproduced copies for the reasonable length of time that it would have taken for him to have reproduced the plans by independent means, which he had a right to do. Such would be the damages owing by him for breaching his fiduciary duty to The Plan Shop, Inc.

Since returning the plans to Breland & Farmer Designers by Hughes (Planhouse) would have been of no benefit to them under the facts of this case (they had additional prints of the plans on file), an additional element of allowable damages would be the reasonable market value of the sepia copies at the time and place of their conversion. Phillips Distributors, Inc. v. Texaco, Inc., 190 So.2d 840 (Miss.1966); Ingram Day Lumber Co. v. Robertson, 129 Miss. 365, 92 So. 289 (1922); Masonite Corp. v. Williamson, 404 So.2d 565 (Miss.1981).

For the foregoing reasons, the decree of the chancery court imposing a permanent injunction against Hughes (Planhouse) is reversed and the injunction is hereby dissolved. The decree assessing damages against Hughes (Planhouse) in the amount of $21,503.95 is also reversed and the cause is remanded to the chancery court on the question of damages alone to be fixed consistent with this opinion.

REVERSED AND RENDERED AS.TO PERMANENT INJUNCTION; REVERSED AND REMANDED FOR NEW TRIAL AS TO DAMAGES ONLY.

PATTERSON, C. J., SMITH, SUGG, P. JJ., BROOM, ROY NOBLE LEE and BOWLING, JJ., concur.

HAWKINS and DAN M. LEE, JJ., dissent.

HAWKINS, Justice,

dissenting in part:

I am in substantial agreement with the majority opinion.

Where the majority of my colleagues and I part company is my view that the chancellor was correct in awarding damages in the amount of profits the defendants admit they made from the wrongful use of the plans, namely: $21,503.95.

When a trustee wrongfully converts property of his beneficiary or principal to his own use, he should not in equity or good conscience be permitted to retain the profits realized from his wrongful use of such property. This is the general and elementary rule, and I see no reason to depart from it in this case.

Upon some basis, the rationality of which eludes me, the majority holds the trustee is only liable for the profits realized from a portion of the period he was wrongfully using the plans. The complainants had nothing to do with the length of time the defendants were using these plans; in fact, they filed a lawsuit to stop them. The defendants could have stopped at any time; in fact, had no business using them for any length of time, or at all.

As to the general rule that a trustee should be liable to the beneficiary for profits wrongfully obtained by conversion of the beneficiary’s property to his own use, see Van Zandt v. Van Zandt, 227 Miss. 528, 86 So.2d 466 (1956), cited in the majority opinion, and Restatement of Restitution §§ 151, 157 (1937). Section 151, Comment “f” at 604 of the Restatement states:

A person who tortiously has acquired, retained or disposed of another’s property with knowledge that such conduct is wrongful is entitled to no profits therefrom. Therefore, he is subject to liability at the election of the rightful owner for the value of anything received in exchange therefor. He is also liable for profits made by its use.

I wish the chancellor well in figuring the amount of the profits for “the reasonable length of time that it would have taken for him (Hughes) to have reproduced the plans by independent means.”

I concur with the remainder of the majority opinion.

DAN M. LEE, J., joins in this dissent.

      . 2 Callmann, The Law of Unfair Competition Trademarks and Monopolies, § 54.2(a), p. 416 (3rd ed. 1968) states the general rule: “An employee, upon the termination of his employment, is free to draw upon his general knowledge, experience, memory and skill, howsoever gained, provided he does not use, disclose or impinge upon any of the secret processes or business secrets of his former employer. This rather piously oversimplified principle is much

        easier to state than to apply.” (Emphasis ours). Suffice it to say from this record there was no showing of any information which would qualify as “secret” or “confidential” from an objective view, and the complainant makes no such contention on this appeal.


text:
    PLANHOUSE, INC. (Formerly The House of Plans, Inc.) and Jack B. Hughes v. BRELAND & FARMER DESIGNERS, INC. (Formerly The Plan Shop, Inc.).
    No. 53246.
    Supreme Court of Mississippi.
    March 24, 1982.
    William P. Featherston, Jr., Jackson, for appellants.
    Beach, Luckett & Ross, Stephen L. Beach, III, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before SUGG, P. J., and WALKER and HAWKINS, JJ.

AFFIRMED.