Brown & Blackwood v. Ricou-Brewster Bldg. Co.

• Citation: 239 La. 1037,121 So.2d 70
• Decision Date: 31 May 1960
• Docket Number: RICOU-BREWSTER,No. 44003,44003
• Parties: BROWN & BLACKWOOD v.BUILDING COMPANY, Inc.
• Court: Supreme Court of Louisiana

Page 70

121 So.2d 70

239 La. 1037

BROWN & BLACKWOOD v. RICOU-BREWSTER BUILDING COMPANY, Inc.

No. 44003.

Supreme Court of Louisiana.

May 31, 1960.

Paul G. Lee, Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for plaintiff-appellant.

Melvin F. Johnson, Johnson, Morelock, Gatti, Egan & Cook, Shreveport, for intervenor-appellant.

Bodenheimer, Looney & Richie; Cook, Clark, Egan, Yancey & King, Shreveport, for appellee.

HAMLIN, Justice.

Plaintiffs lessees, Pat Brown and George Blackwood, and intervenor, Jean Despujols, appeal from a judgment of the trial court which rejected their demands for damages alleged to have resulted from a fire occurring in premises owned by Ricou-Brewster Building Company, Inc., defendant lessor.

By written contract of lease, ¹ plaintiffs rented from defendant a former residence ('Old Ricou Home,' vacant for approximately three years) located at 1094 Louisiana Avenue, Shreveport, Louisiana, for use as an interior decorating studio. Defendant lessor made extensive repairs to the house, including plastering, painting, and putting into operation a Bryant floor furnace located in a room used by plaintiffs as an office. In accordance with the terms of the lease, the interior was repaired and redecorated by plaintiffs lessees.

The studio was formally opened to the public on November 28, 1954, at which time there was trouble with the lighting. Trouble shooters who were called replaced fuses and turned off the floor furnace, and a few days thereafter defendant had the furnace repaired at the instance of plaintiffs' secretary.

During the early morning hours of December 13, 1954, when no one was present, a fire occurred in the building. There was partial destruction of the premises and an alleged inventory damage of $32,062.64 to plaintiffs' collection. The Bureau of Fire Prevention Investigation Report stated:

'Fire apparently started in the area adjacent to the floor furnace. A large hole was burned in the floor on the north side of the floor furnace. The furnace had been installed without allowing clearance between the furnace and the combustible flooring. The occupant of the building reported that he had some trouble with the electrical circuits whenever the floor furnace was in operation but that the owner had sent some employees from the Ricou Brewster Building to correct the trouble. Some unapproved electrical wiring was noted in the area under the house--Stayton Thomas, City Electrical Inspector, noted the violations. The building had apparently been occupied without a Certificate of Occupancy being issued by the City. The fire could have been caused by failure of the high limit control on the heater or by electrical short-circuit in the heater controls. The heater or furnace was not vented to the outside air, the vent stack only extended about a foot from the unit. The fire spread into the wall to the west of the unit, up the wall and into the upper floor and attic area. The wall did not have fire stops, the stairways were not enclosed, the walls were constructed of plaster over wood lath.'

Suit was filed by plaintiffs under Article 2695 of the LSA-Civil Code ² for damages in the sum of $74,364.14 (this amount included alleged incidental damages as well as inventory damage). It was alleged that the fire was occasioned by the vices and defects in the premises leased and the negligence of the lessor. In petition and amended petition, plaintiffs alleged that '* * * said fire was started by a negligently installed and Faulty floor furnace installed by the owners of the property prior to the lease above mentioned. " ³

'That the fire definitely originated from the defective and negligently installed floor furnace and the unapproved wiring in connection wherewith and your petitioners expressly plead Res ipsa locquitur.' (Emphasis ours.)

Defendant denied the allegations of plaintiffs' petition and alternatively pleaded contributory negligence in the following nonexclusive particulars:

'(a) In opening up all the doors in the leased premises in an effort to have the floor furnace claimed to be defective to heat the entire house, which was considerably more space than the furnace was designed for and which action by the plaintiffs was directly in violation of the instructions and recommendations given to them by the lessor and its representatives.

'(b) In allowing some object not connected with the floor furnace to come in direct contact with the floor furnace and thus start the fire complained of.

'(c) In failing to remedy a defect in the floor furnace of which plaintiffs had knowledge.'

Defendant later filed an exception of no cause or right of action to plaintiffs' petition, which was referred to the merits.

The trial commenced on June 19, 1956, and, while evidence was being heard, a petition of intervention and a supplemental and amended petition of intervention were filed by Jean Despujols, owner of the Despujols painting 'Two Sisters' listed in plaintiffs' inventory. Alleging that his picture was borrowed by Pat Brown and George Blackwood for display purposes upon the opening of their studio, he prayed for damages in solido against plaintiffs and defendant in the sum of $5,000.

Defendant filed an exception of no right or cause of action to the intervention of Jean Despujols and an exception or plea of prescription to said intervention. These exceptions were referred to the merits.

Plaintiffs, Brown and Blackwood, filed no pleadings to the petitions of intervention, but, on December 4, 1956--after the completion of the evidence and prior to rendition of judgment herein by the trial judge on September 18, 1957--the following stipulation, signed by counsel for all parties, was filed in the record:

'In this case, subject to objections and exceptions heretofore made and filed, it is stipulated and agreed that the painting destroyed in the subject fire, entitled 'Two Sisters,' was owned by Jean Despujols, Intervenor, in possession of Brown & Blackwood on loan for display purposes only, and that Despujols, if sworn, would testify that its value was in excess of Five Thousand and No/100 ($5,000.00) Dollars.'

Thus, the petition of intervention was put at issue tacitly. Cf. K. & M. Store, Inc. v. Lewis, La.App., 22 So.2d 769; Henderson v. Hollingsworth et al., 158 La. 921, 105 So. 14.

The trial judge found that the experts who testified during the trial disagreed on the cause and origin of the fire. He said that because of this disagreement he found himself in a position of being unable to determine with any degree of certainty just what caused the fire. He then held that under the authority of Boudro v. United States Fidelity & Guaranty Co., La.App., 145 So. 294, and Dunn v. Tedesco, La.App., 93 So.2d 339; 235 La. 679, 105 So.2d 264, plaintiffs had not sustained the burden of proving their case by a preponderance of the evidence.

The following specification of errors is urged by plaintiffs-appellants:

'1. The District Court erred in holding that it was incumbent upon the lessee to prove negligence on the part of the lessor.

'2. The Court erred in failing to reach a decision as to causation of the fire.

'3. The Court erred in failing to apply the principles of law which this Honorable Court has so firmly established in cases of this nature involving damages sustained by a lessee while in legal possession of the leased premises.'

'The law is well settled that a landlord is responsible for injuries sustained by his tenant because of vices or defects in the premises, whether or not he had actual knowledge of the damaged condition of the premises. * * *

'It is also clear that the law places the burden of proving the case by a preponderance of the evidence upon the plaintiff in such matters. * * *' Thompson v. Moran, 19 La.App. 343, 140 So. 291.

'The law is clear that the landlord is not responsible for any injuries that a tenant, or any one lawfully in the premises, may have sustained as a result of a fall, unless the fall was caused by a vice or defect in the premises. The mere fact that a tenant fell and was injured in leased premises does not raise any presumption of negligence on the landlord's part, or that he failed to keep the building in a proper state of repair.

'The plaintiff bore the burden of proving her case by a preponderance of the evidence, * * *' Boudro v. United States Fidelity & Guaranty Co., La.App., 145 So. 294, 295. See, Curet v. Hiern, La.App., 95 So.2d 699; Potter v. Soady Bldg. Co., Inc., La.App., 144 So. 183; Gosselin v. Stilwell, La.App., 78 So.2d 235; Cosey v. Scott, 17 La.App. 680, 137 So. 361; Davis v. Shuster, La.App., 150 So. 424.

All parties herein agree that the fire originated in the area of the floor furnace. The grill was situated in plaintiffs' office on the first floor, and the galvanized metal box, draft diverter, and vent were suspended from the plastered ceiling of the basement directly below the office. There was no exterior venting. Air could enter the basement from a door, a stairway, windows, and an air conditioning vent.

The burden of proof by a preponderance of evidence, under the above authorities, was upon the plaintiffs. It was incumbent upon them to prove that there was a defect or vice in the floor furnace for which the defendant was liable, or, that there was faulty installation of the floor furnace for which the defendant was liable. Additionally, plaintiffs had to prove that such defects caused the fire.

We have carefully read the lengthy and highly technical testimony of record with respect to the cause and origin of the fire herein, and we believe that the following summary of the trial judge is correct:

'The plaintiffs claimed the fire resulted from vices and defects in a floor furnace which formed a part of the leased premises, and in support of that position produced as witnesses Clyde J. Juneau, Charles Watson West, Jr., B. I. Hill, and Earl J. Norred. In rebuttal thereto the defendant relied upon the...