Hanover Insurance Co. v. Jacobson-Young, Inc.

294 So. 2d 564, 1974 La. App. LEXIS 3634
CourtLouisiana Court of Appeal
DecidedMay 10, 1974
Docket5509
StatusPublished
Cited by21 cases

This text of 294 So. 2d 564 (Hanover Insurance Co. v. Jacobson-Young, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hanover Insurance Co. v. Jacobson-Young, Inc., 294 So. 2d 564, 1974 La. App. LEXIS 3634 (La. Ct. App. 1974).

Opinion

294 So.2d 564 (1974)

HANOVER INSURANCE COMPANY et al.
v.
JACOBSON-YOUNG, INC., et al.

No. 5509.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1974.
Rehearing Denied June 6, 1974.

*565 Bienvenu & Culver, Ernest L. O'Bannon and Leonard A. Young, New Orleans, for plaintiffs-appellants.

Shushan, Meyer, Jackson, McPherson & Herzog, Donald A. Meyer, New Orleans, for defendant-appellee.

Stephen L. Huber, New Orleans, for defendants-appellees.

Before LEMMON, BOUTALL and SCHOTT, JJ.

LEMMON, Judge.

This tort suit seeks recovery of fire damage to a leased building.

Plaintiffs, the subrogated insurers of the building owner, sued the lessee, Jacobson-Young, Inc., several of its employees, and its insurer. In their petition plaintiffs alleged specific acts of negligence, as well as the applicability of res ipsa loquitur. From a judgment dismissing the action after a trial on the merits, plaintiffs perfected this appeal.

The principal issue in this court is whether plaintiffs' circumstantial evidence established the probability that Jacobson-Young's employees' negligence, rather than some other factor, was the cause of the fire. Additional issues are quantum and insurance coverage.

The fire occurred in a metal-clad building, which was used as an automobile paint and body shop. The building consisted of seven open repair bays and an enclosed eighth bay, which was used as a paint spray booth. Only employees were admitted into the building, and no smoking was permitted inside the building.

In the open bay next to the spray booth was a paint bench, about seven feet long. Paints, thinners, lacquers and other painting materials were kept on a shelf beneath the paint bench and on a wall shelf above the bench.

The service manager testified that just before the fire he spoke to the painter, who was mixing at the paint bench; that no one else was in the area of the bench; that as he walked away, the fire broke out; and that he turned around and saw the wall behind the paint bench on fire.

*566 The painter was the only person who handled paint in the building. He testified as follows:

"Q. When did you first notice the fire; what did you first notice about the fire?
A. I noticed a blaze. I turned around and I looked and I seen a blaze in the corner by the paint bench. I was on one end, the fire was on the other end.
Q. Did you hear anything, did you see anything? Where was the blaze coming from?
A. Come from on the side by the paint bench.
Q. What was burning?
A. At that time, I don't know. I wasn't paying attention what was burning. When you see a fire you don't hardly look what's burning, you look to see something to put it out.
Q. The concrete floor wasn't burning, was it?
A. I didn't say the concrete floor was burning, you said that.
Q. I asked you what was burning.
A. I don't know.
Q. You saw a flame, and then what?
A. I ran and tried to get a fire extinguisher, tried to put it out.
THE COURT:
You said the fire was coming from the opposite end of the bench from you?
THE WITNESS:
I was at the left side of the bench and the fire was coming from the right side.
THE COURT:
About how far away was that from you?
THE WITNESS:
Not far, a couple of feet, not very far.
BY MR. YOUNG:
Q. There was nobody else in that area but yourself?
A. That's all.
Q. Was there an electric sander lying on the floor in that area?
A. Yes, it was.
Q. Was it plugged in?
A. I don't know, I wasn't paying attention to it. The man had just finished using it a few minutes ago; I don't know if he left it plugged in.
Q. Who was that?
A. Walker.
Q. He just got through using it a few minutes before?
A. Maybe an hour or so, maybe less, I didn't pay attention to how much time it was.

* * * * * *

Q. I wish you would explain one more time exactly where—you were the person that was standing at the bench; where was this fire when you saw it?
A. Closest thing I can tell you where the fire was, on the right side of the bench.
Q. On the bench?
A. No, not the bench, in the corner from the bench. Now, where it started from, where it started at, I don't know. I really don't know how it started, but it was on the right side of the bench."

The painter also stated that a five gallon can of thinner was on the right side of the bench (where the fire started). Although at one point in his testimony he claimed *567 the fire broke out while he was breaking lumps of vinyl paint in the bottom of a can, a step necessary before thinner is added, he stated later in his testimony that the fire occurred as he was walking from the bench to spray a car top (from which we infer he had just used the thinner).

Other employees in the building stated that the fire started suddenly at the paint bench or the wall behind the bench. None of the employees, however, could explain the cause of the fire, although one testified he saw flames "around the floor, like paint was spilled" and was told by the painter that a spark from the grinding machine may have hit the paint bench. This employee also stated that grinding machines were constantly used in that area, although he did not specifically state that a grinder was in use at the time the fire broke out.

An inspector from the New Orleans Fire Department testified that paint vapors are volatile; that paints and thinners should be kept in metal containers in metal lockers; that all inside painting should be done in spray booths with filtering systems for removal of vapors; that Jacobson-Young did not have these required safety features; and that the presence of vapors from paints and thinners, with an ignition source, can "create quite a fire." The inspector found 15 or 20 paint cans on the shelf and on the floor after the fire. About half of the cans had been substantially burned.

The trial judge denied recovery on the basis that plaintiffs failed to prove the cause of the fire or any negligence on the part of the defendants. We disagree, although even plaintiffs admit they did not prove negligent causation of the fire by direct evidence.

Negligence, like any other fact, may be proved by circumstantial evidence. Furthermore, the preponderance of circumstantial evidence required in civil negligence cases need not negate all other possible causes of the casualty. Proof by either direct or circumstantial evidence is sufficient to constitute a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

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294 So. 2d 564, 1974 La. App. LEXIS 3634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanover-insurance-co-v-jacobson-young-inc-lactapp-1974.