LaSalle Pump & Supply Co., Inc. v. Louisiana Midland R. Co., Inc., 82-343

• Court: Court of Appeal of Louisiana
• Writing for the Court: DOUCET
• Citation: LaSalle Pump & Supply Co., Inc. v. Louisiana Midland R. Co., Inc., 433 So.2d 745 (La. App. 1982)
• Decision Date: 22 December 1982
• Docket Number: No. 82-343,82-343
• Parties: LASALLE PUMP & SUPPLY CO., INC., Plaintiff-Appellee, v. LOUISIANA MIDLAND RAILROAD CO., INC., Defendant-Appellant.

Page 745

433 So.2d 745

LASALLE PUMP & SUPPLY CO., INC., Plaintiff-Appellee, v. LOUISIANA MIDLAND RAILROAD CO., INC., Defendant-Appellant.

No. 82-343.

Court of Appeal of Louisiana Third Circuit.

Dec. 22, 1982.

On Rehearing April 13, 1983.

Writ Denied June 17, 1983.

H. James Lossin, Louis L. Vogt, Hal J. Scott, Jonesville, for defendant-appellant.

Peters & Hennigan, Lloyd E. Hennigan, Jr., Jimmie C. Peters, Jena, for plaintiff-appellee.

Before CULPEPPER, DOUCET and YELVERTON, JJ.

DOUCET, Judge.

This litigation arises out of a fire which destroyed a warehouse building owned by the plaintiff, LaSalle Pump and Supply Co., Inc. in Jena, Louisiana on March 10, 1978. The building was located partially on a right of way owned by Louisiana Midland Railroad Co., Inc., defendant-appellant herein. Following trial on the merits, judgment was rendered in favor of plaintiff in the sum of $78,842.18. This appeal encompasses two issues; the cause of the fire and the value of the property destroyed. We affirm in part, reverse in part and remand.

Appellant alleges the following specifications of error:

"1. The trial court erred in holding that there was a causal connection between the plaintiff's damaged property and the defendant's activity.

2. The trial court erred in holding defendant negligent.

3. The trial court erred in holding that the plaintiff was not contributorily negligent.

4. The trial court erred in holding that the plaintiff did not assume the risk by building upon railroad right-of-way.

6. The trial court erred in awarding damages when plaintiff did not carry the burden of proof in proving damages.

7. The trial court erred in determining damages without the aid of corroborative evidence, when it was available by the plaintiff and not produced.

8. The trial court erred in finding that those portions of the testimony that would be objectionable as hearsay was cured and manifestly erred in finding as a fact, that some of the employees who put together the inventory testified as to its reliability.

9. The trial court erred in not reducing the award by the salvage value.

10. The trial court erred in assessing damages above and beyond the amount sworn to in plaintiff's proof of loss."

Immediately prior to the fire, Mr. Thomas E. Collins was painting his house, located approximately 1,000 feet from the plaintiff's building, when he noticed a train moving at a slow rate of speed towards the LaSalle Pump and Supply building. He noticed locomotive # 1111 emitting smoke and flames igniting grass adjacent to the railroad tracks. Mr. Collins testified that there were no fires in the vicinity prior to the train's passing. Approximately ten minutes thereafter fire was reported on plaintiff's premises. The conflagration quickly destroyed the warehouse.

Appellant contends that the above circumstantial evidence is insufficient to establish negligence on its part. We disagree. In Lemann Co., Ltd. v. Texas and Pacific Ry. Co., 128 La. 1089, 55 So. 684 (La.1911) it was stated:

"It is laid down as a rule that evidence that the fire started up (1) immediately or very soon after the passing of the train, (2) that there was no fire on the premises or vicinity of the premises before, and (3) that there was no apparent cause for the fire is sufficient to warrant an inference of fact that the fire was emitted from the railway company's passing engine. Union Pacific Ry. Co. v. De Busk, 12 Colo. 294, 20 Pac. 752, 3 L.R.A. 350, 13 Am.St.Rep. 221; Abbot v. Gore, 74 Wis. 509, 43 N.W. 365; G.C. & S.F. Ry. Co. v. Blackeneyer-Stevens-Jackson Co., 48 Tex.Civ.App. 443, 106 S.W. 1140."

The evidence indicates that the fire started up immediately or very soon after the passing of the train, that there were no fires in the vicinity prior thereto and there is no indication that the fire was of any other origin. Plaintiff sustained his burden of proving negligence and causation.

Next, appellant contends that the plaintiff was contributorily negligent and/or assumed the risk. As aforementioned, plaintiff's building was located, in part, upon the railroad's right-of-way. Evidence showed that at some time in the past plaintiff secured an oral lease to use the land involved. Appellant contends that this lease shifted responsibility for maintaining the right-of-way free from flammable debris to plaintiff, or, that plaintiff assumed the risk of having its building subject to fire. Mr. Thomas Bell, plaintiff company president, admitted the existence of other grass fires along the railroad in the vicinity and the evidence indicates that the ditch between the building and the railroad was a fire hazard because of its condition. Nevertheless, LSA-R.S. 56:1479 imposes an affirmative duty upon railroads such as defendant to keep land subject to being overrun by fire cleared of combustible materials. The risk and harm encountered clearly fall within the scope of protection of the statute. Hence the defendant's violation thereof constitutes negligence per se. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (La.1962). On the other hand, there is nothing in the record to indicate that plaintiff assumed defendant's responsibility of maintaining the right of way clear of combustible materials by entering into the lease agreement. Under the circumstances presented, we cannot say that the trial judge's findings of fact exonerating plaintiff of contributory negligence are clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973).

With regard to damages, there is little dispute as to the loss to the building. Mr. Robert C. Wilson, an independent appraiser and insurance adjuster stipulated to as an expert, testified by deposition that the estimated replacement cost value of the building destroyed was $8,552.40, less depreciation of $1,282.80, or an actual cash value of $7,269.80. The building, contents excluded was insured for $6,000.00, thus the actual loss to plaintiff is $1,269.60. It is the contents of the building, their value and proof thereof which is disputed on appeal.

Plaintiff introduced two depositions into evidence to prove the amount of damages to the building's contents. The first was that of Mr. Wilson, who was employed by Hanover Insurance Company, which afforded coverage in the sum of $11,000 on both the building and contents. Mr. Wilson compiled his statement from data supplied to him by Thomas David Bell, son of plaintiff company's president and employee of LaSalle Pump. Mr. Bell provided Mr. Wilson with "an inventory", prepared following the fire, which the latter used to compile a Statement and Proof of Loss. Mr. Wilson had no other firsthand knowledge as to the claimed inventory loss other than having viewed the remains of the fire when preparing the estimate on the building loss.

The second deposition, that of Mr. Bell, indicates that he did not take the inventory relied upon by Mr. Wilson, although he did collect part of the data used in its compilation. Mr. Bell testified that a Mr. Ray Melvin prepared the inventory with the assistance of a Mr. Ganey. No sales records were introduced to indicate which items were sold prior to the sale. Neither Messrs. Wilson nor Bell were able to explain the method or procedure used to make the post-fire inventory. Appellant objected to valuation of the contents on the basis of said inventory as hearsay. Appellant maintains that objection on appeal. We find merit in the specification of error.

It is axiomatic that hearsay evidence is generally inadmissible as being unreliable, because it is based on statements made by persons who are not before the court, have not been sworn, and are not available for cross-examination. Manuel v. American Employment Insurance Co., 212 So.2d 527 (La.App. 3rd Cir.1968). Article 2248 of the Louisiana Civil Code provides:

Art. 2248. Books of merchants as evidence. The books of merchants can not be given in evidence in their favor; they are * good evidence against them, but if used as evidence, the whole must be taken together.

The first part of Article 2248 has, in great part, been disregarded by Louisiana courts. Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 LA.L.REV. 449 (1961). The harshness of the rule was recognized in Crosby v. Little River Sand & Gravel Development, 212 La. 1, 31 So.2d 226 (1947) wherein it was stated: "This court in recent years has greatly relaxed the stringent rule of Article 2248, and under modern business methods to apply the rule would in many instances work grave injustices." In its place, Louisiana Courts have recognized the business records exception to the hearsay rule. The requirements of the exception may be summarized as follows: (1) persons concerned with recording the information must be unavailable for testimony, or production of such persons would be a needless burden; (2) the first collected record available or useable by the court is introduced; (3) the records are identified at the trial by one familiar with the bookkeeping procedure; and (4) the evidence seems reliable in light of the following factors (a) contemporaneousness of the entry with the occurrence recorded, (b) firsthand knowledge of the entrant, (c) existence of a business or professional duty to record or report the facts in the regular course of business, (d) completeness and honest appearance of the books, (e) absence of fraud in making the entries or in destroying the supporting memoranda and (f) perhaps whether the book belongs to a third party. Comment, 21 LA.L.REV. 449 (1961)...