The Loyal Order of Moose, Metairie Lodge # 2195 (MOOSE LODGE), and its insurer, Fireman's Fund Insurance Company,
Pace owned a decades-old building at 801 Jefferson Highway which he leased to the Moose Lodge in 1979. On the day of the fire, October 16, 1983, the Moose Lodge was being used for a social affair, with some members of the Lodge in attendance and supervising the affair. Twenty minutes after these members left the building, witnesses saw smoke coming from the building. The fire heavily damaged the building, making it difficult to pin-point the exact cause or origin of the fire; but the area of heaviest damage appeared to be the electrical switch box.
Pace sued the Moose Lodge for damages, alleging failure "to maintain the electrical, heating and cooling systems of the premises in good working order pursuant to the provisions of its lease agreement...." Fireman's Fund reconvened against Pace, alleging similar acts of negligence and failure to maintain. The trial judge awarded judgment to Pace in the amount of $212,250.00 against the Moose Lodge and Fireman's Fund; and he dismissed the reconventional demand. He reasoned:
The Moose Lodge complains of the judge's inference that, because the fire was discovered shortly after a social affair, the fire was due to the fault or neglect of the Moose Lodge, and of the judge's conclusion that Pace had met his burden of proving the cause of the fire.
The two-day trial produced several witnesses for each side, and we summarize their testimony.
THE TESTIMONY: Pace's Witnesses
GEORGE A. HERO, an expert electrical engineer. He was connected with Comfort Air Company, Fox Engineering, and George A. Hero Company; and he investigated fire losses and explosions. He examined the remains of the building twice in connection with making his report. He found extremely heavy damage. The electrical service was quite old, with trees, vines, and stuff growing up around it. He found evidence of numerous additions, and disconnect switches were added through the years. Some of the wiring probably dated from the 30's, 40's and 50's; and some of it was new wiring.
It was difficult to determine the origin of the fire, but the deepest burn was in front of the closet containing the lighting panel [the switch room]. There was also heavy damage on the nearby bar. The burn behind the bar was on the back wall. He believed the fire started on the first floor and spread upward to the second floor. He had no precise determination as to the cause of the fire, and he could not exclude cigarettes as the source. Both of the badly burned areas were in the rear of the main room on the first floor. The main electrical service was on the upper level. The electrical closet or switch room mainly had wiring and an electrical board. It may have taken 15 or 20 minutes after the fire started to see smoke outside.
His final conclusion as to cause: "the age of the wiring and the evidence of revisions that the electrical system was the most probable origin because of the extent of the damage determining the point of origin was not easy."
MEL CARACCI. She lived catty-corner from the building with a clear view of it. She was sitting out on her porch and saw Howe and Spier leave alone 20 or 30 minutes before she saw the smoke. The building was there at least 16 years, but she didn't think it was there in the 30's. She didn't know when it was built.
EVELYN VOTELSINGER, Caracci's sister. She had a clear view. She didn't know who was the last to leave, but she saw smoke about 20 to 25 minutes after the last people left. The smoke looked like it was coming from part of the eave. She
CHARLES PACE, the plaintiff and owner/lessor of the building. He was self-employed in the music box business and was semi-retired. He bought the building in 1965 for $60,000.00. The two-story stucco building of 9,000 to 10,000 feet was always a lounge as far as he knew. He had leased it out since he had it. He didn't know how old the building was when he bought it. At one time it was a casino and then a restaurant called the Golden Peacock. He never had the wiring redone or replaced. He acquired the equipment he claimed was lost in his reconventional demand from a prior lessee in lieu of rent. He visited the premises several times to take care of roof leaks but he never got around to fixing the cracks in the wall. The building was in good repair, and no tenants ever complained. The Moose Lodge only complained about roof leaks. He may have offered to sell the building to the Moose Lodge for $125,000.00, but he can't remember. The building was insured for $22,000.00, and he spent $8,000.00 clearing the remains away. Two months before the fire, he got a policy [quotation] valuing the property at $241,000.00; but the premium was so high he couldn't afford it.
BETH INBAU, an expert fire investigator. She was employed by the Jefferson Parish Department of Inspection Code Enforcement. She investigated the fire and made a report.
PETER CANNIZZARO, expert appraiser. He did an appraisal four years after the fire on information given by Pace and from tax bills and other insurance information. He valued the 9,790 square foot building at $21.50 per square foot for the building alone on a cost approach. Using a market approach, he valued the building and land at $301,000.00. He saw no photographs of the building. He only estimated the condition of the building based on normal wear and tear over the sixteen years of Pace's ownership.
Moose Lodge's Witnesses
CHARLES HOWE, a member and officer of the Moose Lodge. Before his retirement, Howe was in charge of safety for ODECO. The lease began in 1978, and the Lodge used the building for meetings and social functions. The first two months were rent free, in exchange for cleaning up the building. The building had been in existence since at least 1949. Pace never asked the Moose Lodge to obtain insurance on his belongings. Pace did not have the building rewired, and the wiring looked normal. The switch room had several fuse
The afternoon of the fire, the Lodge had been donated to the Jazz Club for a jam session. The band used a microphone with two speakers, plugged into outlets. Between 75 and 90 people were in attendance, with six or seven Moose Lodge officers. The officers generally supervised these functions, and he was supervising that afternoon since he had set it up. The jam session was from one to five p.m., and nothing noteworthy happened. The Lodge served sandwiches and beer, wine, and whiskey. There was one old beverage cooler with deteriorated insulation under the bar. They also used a beer box, cooler, a crock pot, and maybe an oven roaster the afternoon of the jam session.
He left the building about 7 p.m. the evening of the fire, and he was the one who closed up. He checked that the doors were locked, that the lights were out, and made sure everything in the kitchen was out. All the appliances were already unplugged. He flipped out all the switches in the switch room. (There were few or no wall switches, and almost everything was controlled from the switch room.) He saw or smelled no smoke except for cigarettes. No one cleaned up or took out the trash, since that was generally done on Monday, the following day, by people hired to clean up. About thirty minutes or less after he left, he got a call that the building was on fire.
CHARLES H. SPIER, a member and officer of the Moose Lodge. The building was in poor condition, with constant leaking and a bad odor; and the restrooms were terrible. The Lodge had to go through an inspection and obtain licenses. It had no problem with the electrical system prior to the fire.
The Lodge used the building for meetings and social gatherings and had a Jazz Club social the afternoon of the fire. He arrived about 1 p.m., and the function began about 2. He tended bar and helped around the place. There were about 75 to 100 people in attendance, about twenty Moose and the rest Jazz Club. The officers of the Lodge supervised. Some of the members' wives did the cooking. There was a little room set up with hot plates, oven, and stove to heat food. The stove was in one corner, the oven in the other, with hot plates on the counter. The Lodge served nachos, hot dogs and chili, and alcoholic beverages. The function lasted until about 6 p.m.
He made sure everything was all right and the doors locked before leaving. He was sure his wife turned off the oven, stove, and hot plate; but he didn't check or see Howe check. They did not take out the trash or empty the ash trays. They also didn't clean up since someone was coming in the morning to clean. It would be correct to say the last guest left around 7 p.m. There were no flames or odor of smoke when he left.
About one hour after leaving, he got a call at home about the fire. When he got there, smoke was coming out of the stairwell to the right. This was not where the function was. No one was allowed on the second floor at the function; this was the Lodge meeting room.
MARK J. JOSEPH HART. He was a claims adjuster for Fireman's Fund and hired someone to investigate the cause of the fire. He adjusted the claim and paid the Moose Lodge $64,105.51 for its losses. Pace was not on the policy as a loss payee.
JULIUS NUEMEYER, a member and officer of the Moose Lodge. He was responsible for paying the bills and maintaining the records for the Lodge. The building dated back to at least 1948. He made a yearly inventory of the Lodge property, and he denied that Pace had much of the equipment he claimed was lost in the fire.
The day of the fire, there were about 100 to 125 people in attendance, of which forty to forty-five were Lodge members. The band used a microphone but no amplifiers. The officers provided supervision, but there was no one with specific instructions to be the overseer. The Lodge served hot dogs and used the stove and not hot plates. He left about 6:30 or 6:45 p.m., and there were six to eight people still in the building when he left.
OSCAR ERNST, a member and officer of the Moose Lodge. He was in the used furniture business and estimated the value of Pace's furnishings, excluding air conditioners and other mechanical equipment, at $250.00.
Several lease provisions are relevant to the issue of responsibility for the premises and for damages:
We believe that the provisions of this lease contemplate that even if the fire resulted from defective wiring the Moose Lodge might be responsible. There is testimony that, if the wiring was old and inadequate, nevertheless the Moose Lodge never called any such defects to Pace's attention. Furthermore, the Moose Lodge accepted the condition of the premises at the beginning of the lease; and there has been no evidence that any action by Pace caused any further deterioration of the electrical or any other system in the building.
In addition to the positive law of the lease contract, there are Louisiana Civil Code articles which regulate the relationship of lessor and lessee, some of which conflict with the lease contract.
Where there is conflict between the general law of lease and the terms of the contract, the contract should prevail unless the rights of others are affected or the result would be contrary to the public good. The codal articles regulate the relationship between lessor and lessee when the lease is silent. Tassin v. Slidell Mini Storage, Inc., 396 So.2d 1261 (La.1981). See La.C.C. art. 2715.
A plaintiff generally has the burden of proving his allegations. The Moose Lodge argues that Pace has failed to meet this burden, that he has presented only circumstantial evidence which does not exclude other just-as-reasonable hypotheses about the cause and origin of the fire, and that Pace should not be allowed to shift the burden of proof to the Lodge using the theory of res ipsa loquitur. Pace argues that the application of the doctrine of res ipsa loquitur is appropriate and that ample circumstantial evidence establishes the negligence of the Moose Lodge.
The Supreme Court has considered the requirements to prove liability for fire in Boudreaux v. American Insurance Company, 264 So.2d 621 (1972). The plaintiffs, children of a man who lived in an adjacent building and died in the fire, sued the insurer of the owner and operator of the restaurant where the fire originated. The evidence showed that the last employee on the premises of the restaurant carefully checked to be sure that all kitchen fires and pilots were turned off before he left for the evening; the grease from the deep fryer had been poured out and stored in a metal container; the duct work, hood, grease filters, and vent were newly installed six weeks prior to the fire; the filters were cleaned weekly; the ducts had not been cleaned since the installation; and the appliances were cleaned the evening before the fire. The fire alarm was turned in less than an hour after the last employee left. The experts were not able to establish the cause of the fire, but one speculated that somehow a flame from the kitchen passed through the filters and into the duct work, igniting the accummulated grease. The experts did agree that the fire started in the kitchen. The trial court dismissed plaintiff's suit, the Fourth Circuit affirmed, and the Supreme Court granted writs.
After initially ruling that the plaintiffs had failed to prove causation and affirming, the Supreme Court reversed in rehearing,
This opinion is generally cited at length in subsequent cases dealing with liability for fire, including those cases involving the respective responsibility of lessors and lessees. Recently, it was again cited by the Fourth Circuit in Maryland Cas. Co. v. Saunders, 394 So.2d 1256 (La.App.1981). In that case involving a restaurant, the lessor's insurers sued the lessee and his insurer; and the appellate court reversed a judgment in favor of the lessee, agreeing that the trial judge had failed to apply the doctrine of res ipsa loquitur. The court concluded that
At 1259 (emphasis by the court).
In other fire cases where the defendant prevailed, there were generally other reasonable inferences present to explain the origin of the fire. For example, in Barber v. Books, Etc., Inc., 316 So.2d 154 (La.App. 4th Cir.1975), writ den. 320 So.2d 559 (La.1975), there was evidence that children had been seen playing nearby and could have started the fire. In Carriere v. Olivier, 432 So.2d 1089 (La.App. 3rd Cir.1983), writ den. 438 So.2d 570 (La. 1983), there was a gap of several hours between the departure of the defendant from the premises and the discovery of the fire, and there was evidence that someone other than the defendant had been seen smoking while seated in an overstuffed chair [the origin of the fire was in or around this chair]. Here, only the Moose Lodge and its Jazz Club guests had access to the premises, the Lodge had complete control over the premises, under the lease agreement it was responsible for maintaining the electrical system, it made modifications to the electrical system apparently without the knowledge or consent of Pace, and it used on the premises electrical cooking and/or warming appliances.
The trial judge saw and heard all the witnesses and concluded that "it is more probable than not that the conduct of the Moose cause the fire." We cannot say he was clearly wrong in this determination, and we affirm his judgment. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The Loyal Order of Moose, Metairie Lodge # 2195, and Fireman's Fund Insurance Company must pay the costs of this appeal.