Southern Farm Bureau Casualty Insurance v. Florane

173 So. 2d 545, 1965 La. App. LEXIS 4493
CourtLouisiana Court of Appeal
DecidedMarch 24, 1965
DocketNo. 1362
StatusPublished
Cited by4 cases

This text of 173 So. 2d 545 (Southern Farm Bureau Casualty Insurance v. Florane) 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
Southern Farm Bureau Casualty Insurance v. Florane, 173 So. 2d 545, 1965 La. App. LEXIS 4493 (La. Ct. App. 1965).

Opinion

TATE, Judge.

A house owned by O. B. Gregory was destroyed by fire while on a temporary location in the process of being moved from one area to another. The cause of the fire is unknown. The house was being moved by the defendant Lloyd Florane pursuant to a house-moving contract between him and Gregory, the owner of the house. Following the burning of the house, Gregory’s fire insurer (Southern Farm) paid him for the loss.

Southern Farm brings this subrogation suit against Florane, the house-moving contractor, to recover for the sums paid out. The district court held that, under the house-moving contract, the owner Gregory was intended to bear the risk of the unexplained loss. Accordingly, the court dismissed Southern Farm’s subrogation suit, which of course is founded upon its insured’s, Gregory’s, alleged right to recover for the loss of his house while in the custody of the defendant Florane. Southern Farm therefore appeals.

The principal questions of this appeal will be whether the owner (Gregory) or instead the house-moving contractor (Flo-rane) was intended to bear the risk of unexplained loss under the house-moving contract between the two, and whether parol evidence is admissible to show this to be the intended meaning of a contractual provision. Before discussing these issues, however, we deem it advisable to set forth' the facts, as well as certain preliminary, contentions of the parties.

[547]*547The evidence shows that in early January the house had been moved from its original location in Pleasant Hill, Louisiana, to near Black Lake in Natchitoches Parish, some thirty miles distant. Since the ground was wet, so that the heavy equipment loaded with a house would have bogged, the housemover had been unable to complete the move to the final destination, a camp-lot in the woods on Black Lake owned by Gregory. The house (which had been bought for $300 by Gregory) was left in a nearby field (with permission of the landowner) for about six weeks prior to the fire in which the house was destroyed. This temporary location was variously estimated as from ISO to 400 yards distant from the final destination of the house. The house had been tampered with the weekend before the fire, when the windows were opened by an unknown person.

On the day of the fire, the defendant Florane and his crew of three had gone to the house and had removed his housemoving trailer from under the house, since the trailer was needed elsewhere and since, due to the continued softness of the ground, he still could not complete the move of the house over the short remaining distance to Gregory’s camp-lot. The defendant and a member of his crew testified that when they left, after an hour or so, the house was not on fire, and that the crew had not entered the house or smoked around it or •otherwise exposed it to the hazard of fire. However, the forcefulness of this testimony is somewhat weakened by Florane’s unexplained failure to produce his other •two employees at the .scene of the fire, which (especially if, see below, he had the burden to disprove his own negligence) might give rise to an inference that the testimony of these employees may not have been as favorable to Florane. See Olivier’s Minor Children v. Olivier, 215 La. 412, 40 So.2d 803.

There was no grass near the temporary location, which was in a deserted area, and the house was not connected with either electricity or gas. The house was found burned to the ground at 6:00 P. M., while the defendant Florane’s crew had left the area at about 2:30 P. M.

In summary, the evidence can be said to indicate that the most probable cause of the fire destroying the house was some human agency, either carelessness or an intentional act. The human fault indicated could as reasonably have stemmed either (1) from some act by the defendant Flo-rane’s crew while they were in the process of removing Florane’s equipment from under the house or else (2) from the acts of an unknown person who tampered with the house after Florane’s crew left.

Southern Farm’s able counsel contends that the defendant Florane has the burden of proving that it was not fault on the part of his employees which caused the fire destroying the house. Counsel relies upon the strict duty of Florane as a compensated depositary (bailee) to safeguard property within his care, and upon jurisprudence to the effect that, when deposited property is damaged while within the custody of a depositary under circumstances indicating the damages were caused' by fault, a prima facie case has been established against the depositary, and the burden of proof shifts to him to show that the loss did not occur through his own negligence; for, under such' circumstances, the depositary must establish his own lack of fault in order to exonerate himself from liability for damage to the deposited object while it is in his custody. LSA-Civil Code Articles 2937, 2938; Brown & Blackwood v. Ricou-Brewster Building Co., 239 La. 1037, 121 So.2d 70, and cases therein cited; Indiana Lumbermen’s Mutual Insurance Co. v. Humble Oil & Refining Co., La.App. 2 Cir., 170 So.2d 264.

[548]*548On the other hand, the defendant-appel-lee Florane argues that a clause in the housemoving contract was specifically intended to relieve him of the risk of unexplained damage to the house while parked on temporary location. Florane thus argues that therefore, in order to recover, the appellant has the burden of proving that the house burned because of negligence or fault on Florane’s part.

Proof by a preponderance of the evidence requires that the evidence as a whole shows that the fact 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 Co., 244 La. 569, 153 So.2d 395; Perkins v. Texas & N. O. Railway Co., 243 La. 829, 147 So.2d 646. Therefore, Florane argues, since under the evidence it is at least equally probable that the fire resulted from the act of an unknown person after Florane’s employees left the area, the plaintiff has not borne its burden of proving by a preponderance of the evidence that the house was damaged because of fault on Florane’s part.1

The trial court sustained the defendant Florane’s contentions and dismissed the suit against him. We affirm. We agree with the trial court that a clause in the house-moving contract was specifically intended to exculpate Florane from any unexplained loss of the house while it was parked on a temporary location.

The clause in the contract with this effect was especially inserted by typewriter on the reverse of a printed-form housemoving contract. The clause reads: “It is agreed between mover [Florane] and owner [Gregory] of house that should any delay in route occur which makes it necessary to place house on temporary location, that movers insurance will cease being in effect immediately and shall remain as such until removing begins.”

The plaintiff forcefully contends that this clause cannot have the meaning ascribed by the defendant and the trial court. Counsel argues that the agreement is unambiguous in its provision “that movers insurance will cease being in effect” should it be necessary to place the house on a temporary location, and does not in terms refer to other than the mover’s “insurance”. (Further, even if the clause be considered ambiguous, the plaintiff suggests that the ambiguity should be construed against the person preparing the contract, in this case Florane.)

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Bluebook (online)
173 So. 2d 545, 1965 La. App. LEXIS 4493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-farm-bureau-casualty-insurance-v-florane-lactapp-1965.