Boudreaux v. American Ins. Co.

• Citation: 262 La. 721,264 So.2d 621
• Decision Date: 21 February 1972
• Docket Number: No. 51395,51395
• Parties: Robert BOUDREAUX et al. v. The AMERICAN INSURANCE COMPANY.
• Court: Supreme Court of Louisiana

Page 621

264 So.2d 621

262 La. 721

Robert BOUDREAUX et al. v. The AMERICAN INSURANCE COMPANY.

No. 51395.

Supreme Court of Louisiana.

Feb. 21, 1972.

On Rehearing June 29, 1972.

Edmond R. Eberle, New Orleans, for plaintiffs-appellants-applicants.

Dillon & Williams, Gerard M. Dillon, New Orleans, for defendant-appellee-respondent.

HAMLIN, Justice:

We directed certiorari to the Court of Appeal, Fourth Circuit, for review of its judgment which affirmed the judgment of the trial court dismissing plaintiffs' suit for damages allegedly suffered by the death of their father resulting from a restaurant fire. Art. VII, Sec. 11, La.Const. of 1921; La.App., 245 So.2d 794; 258 La. 759, 247 So.2d 861.

On February 24, 1967, sometime after 1:00 A.M., a fire occurred in Charlie's Steak House, 4510 Dryades Street, New Orleans, Louisiana. An alarm was turned in at 1:52 A.M. by a passerby, and shortly thereafter a general alarm was struck. Edward Morris Boudreaux, a sixty year old elevator operator employed by Charity Hospital, occupied an attic apartment in an adjoining building, 4506 Dryades Street, which was separated from Charlie's Steak House by a community wall. Boudreaux, who was alone in his apartment at the time of the fire, died as a result of suffocation due to smoke inhalation. His body was discovered by David Fontaine, Jr., Director of Fire Prevention Division of the Fire Department of the City of New Orleans. ¹

On May 18, 1967, suit was instituted by the present plaintiffs, the five children of Edward Boudreaux, and their mother, Gladys Chalaire Boudreaux, against The American Insurance Company the liability insurer of 'Charles Restaurant, Charles Petrossi'; defendant's exception of no right of action was maintained as to Mrs. Boudreaux because of her divorce from Edward Boudreaux, the deceased, in 1966. In their original petition, plaintiffs alleged:

'III.

'The said accident was caused solely through the negligence of C. Petrossi in that:

'1. He allowed a dangerous fire condition to remain after he knew or should have known of said danger.

'2. In that he had been repeatedly warned of the hazardous nature of his operation and he refused and neglected to do anything about it.

'3. That he allowed waste matter to accumulate and refused to employ proper preventive methods that would have prevented said fire.

'IV.

'That the said death was caused through the gross negligence of C. Petrossi in that he violated all of the local fire laws of the State of Louisiana and that said violation was directly resulted in the death of Edward Morris Boudreaux.'

Defendant denied negligence on the part of its insured and alternatively pleaded contributory negligence on the part of the deceased 'in that at the time of the said fire and his death he was intoxicated as a result of the prior consumption of alcoholic beverages or alcohol, that he failed to discover the existence of the said fire and of the smoke that caused his death, that he failed to timely heed the warning of the fire in the premises occupied by him, that he failed to promptly evacuate his room and leave the said premises, and in that he failed to exercise due care for his own safety, which was a proximate cause of his death.' ²

The trial court rendered judgment in favor of defendant and dismissed plaintiffs' suit at their costs.

The Court of Appeal found that the cause of the fire was not proven. It correctly analyzed and narrated the testimony and evidence of record as follows:

'* * * two New Orleans Fire Department officials, whose opinions conflicted in several respects, agreed it (the fire) originated in the kitchen of the restaurant. Anthony Engolia, a fire inspector who conducted the official investigation, testified the damage was so extensive it was not possible to determine what caused the conflagration. He arrived on the scene at 2:15 A.M., approximately fifteen minutes after the first alarm was sounded, to find the building engulfed in smoke and flames.

'Engolia testified he conducted his investigation hours later after the fire had been extinguished. One significant conclusion he reached was that the fire extinguishing system installed in the kitchen did function, since traces of baking soda were found in the charred debris. He explained this equipment was activated when heat from the flames reached 185 temperature, thus releasing quantities of baking soda designed to drop and smother the flames. In order for the system to operate automatically, the heat from the fire must first melt fuse links that ordinarily keep the powdery substance from being discharged. His investigation disclosed these links were in fact melted.

'The second official to testify was David Fontaine, director of the Fire Prevention Division of the New Orleans Fire Department. He, too, visited the fire while it was in progress and visited the scene once it had been extinguished. Although he stated twice it was impossible to determine the cause of the fire, he speculated it started when a flame from the kitchen somehow passed through one of the overhead grease filters into the duct work and ignited grease accumulated on the sides thereof. This duct work runs through the interior of the building to the second floor ceiling before it reaches to the outside of the building. * * * ³

'In addition to the testimony of the expert fire officials, evidence was adduced describing the restaurant kitchen equipment, and its use and maintenance. The appliances included a stove and two broilers placed next to the rear wall of the kitchen and a deep fryer positioned against the side wall opposite the party wall. All have pilot lights, according to the restaurant employees, that are lit each morning when the kitchen is open and extinguished by being 'fanned out' at night when the kitchen closes. Workers also described pouring six to eight gallons of grease into the deep fryer each morning and draining it out each night. While not in use, the grease was stored in a metal container that was kept either in the yard or the kitchen. The testimony is in conflict on this point.

'On the night of the fire, the cooks then on duty testified that they performed their usual chores before leaving, namely, cleaning the appliances, draining and storing the deep fryer grease and turning off all the pilot lights. These duties were completed by midnight, at which time the kitchen closed and the cooks went home. Charlie's bar remained open, as it usually does, for another hour. Before locking up the restaurant that night, the bartender testified he checked the kitchen and was positive none of the stoves or broilers were lit. ⁴

'As to maintenance, the record discloses that extensive renovations were completed in the kitchen within six weeks before the fire. Charles Petrossi testified the duct work, the hood over the stove and broilers, the grease filters, the duct work for the exhaust system, the vent stack and the fire extinguishing system were all new. The filters were cleaned weekly and Petrossi was endeavoring to find someone to clearn the interior or the duct work several days before the fire occurred. * * * Petrossi's employees corroborated his testimony as to the installation of new equipment and its subsequent maintenance. Further, invoices from the contractor substantiate work was performed as the owner stated.'

The Court of Appeal found that Fontaine's testimony was contradictory and was weakened by himself; it further found that it did not establish the cause of the fire by a preponderance of the evidence. It felt that there was no probative evidence of record to remove the cause of the fire from the realm of speculation. The Court held that the doctrien of res ipsa loquitur did not apply to the instant matter. It said, 'While we concede the possibility fire could have started from one of a number of sources in the kitchen, it is illogical to infer there was no other reasonable cause to which it could be ascribed.' The Court further held that the liability set forth in LSA-C.C. Art. 667 did not attach to the instant matter. It concluded, 'Thus we conclude the trial court properly dismissed this suit on a finding plaintiffs failed to establish defendant's negligence by a preponderance of the evidence.'

Plaintiffs assign the following errors to the decision and judgment of the Court of Appeal:

'I. The Court of Appeal erred in holding that plaintiffs have not proved their case by a preponderance of the evidence.

'II. The Court of Appeal erred in holding that the doctrine of res ipsa loquitur was inapplicable.

'III. The Court of Appeal erred in failing to hold that defendant's insured is liable under the absolute liability provisions of Revised Civil Code article 2315 analogized with article 667.'

Defendant submits: 'The opinion of the Court of Appeal in this case is reported as Boudreaux v. American Insurance Company, La.App., 245 So.2d 794. The pertinent findings of fact are aptly stated therein and, defendant submits, also the correct conclusions of law with respect thereto.'

PREPONDERANCE OF EVIDENCE

Preponderance in law means credibility, influence, and weight and not the number of witnesses. Wilson v. Morris, La.App., 139 So.2d 93, cert. denied.

'By a preponderance of evidence is meant, simply, evidence which is of greater weight, or more convincing, than that which is offered in opposition to it; that is, evidence which as a whole shows that the fact or causation sought to be proved is more probable than not. Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276; Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395; Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646. This proof may be made not only by direct evidence, but also by circumstantial evidence which excludes other reasonable hypotheses 'with a fair amount of certainty.' Naquin v. Marquette Casualty Company, supra.' Gassiott v. Gordey, La.App., 182 So.2d 171 (1966). See, Duhon v....