Boudreaux v. American Insurance Company , 262 La. 721 ( 1972 )

HAMLIN, Justice:

We directed certiorari to the Court of Appeal, Fourth Circuit, for review of its judgment which affirmed the judgment of the trial court dismissing plaintiffs’ suit for damages allegedly suffered by the death of their father resulting from a restaurant fire. Art. VII, Sec. 11, La.Const. of 1921; La.App., 245 So.2d 794; 258 La. 759, 247 So.2d 861.

On February 24, 1967, sometime after 1:00 A.M., a fire occurred in Charlie’s Steak House, 4510 Dryades Street, New Orleans, Louisiana. An alarm was turned in at 1:52 A.M. by a passerby, and shortly thereafter a general alarm was struck. Edward Morris Boudreaux, a sixty year old elevator operator employed by Charity Hospital, occupied an attic apartment in an adjoining building, 4506 Dryades Street, which was separated from Charlie’s Steak House by a community wall. Boudreaux, who was alone in his apartment at the time of the fire, died as a result of suffocation due to smoke inhalation. His body was discovered by David Fontaine, Jr., Director of Fire Prevention Division of the Fire Department of the City of New Orleans.¹

On May 18, 1967, suit was instituted by the present plaintiffs, the five children of Edward Boudreaux, and their mother, Gladys Chalaire Boudreaux, against The American Insurance Company the liability insurer of “Charles Restaurant, Charles Petrossi”; defendant’s exception of no right of action was maintained as to Mrs. Boudreaux because of her divorce from Edward Boudreaux, the deceased, in 1966. In their original petition, plaintiffs alleged :

"III.

“The said accident was caused solely through the negligence of C. Petrossi in that:

“1. He allowed a dangerous fire condition to remain after he knew or should have known of said danger.

“2. In that he had been repeatedly warned of the hazardous nature of his operation and he refused and neglected to do anything about it.

“3. That he allowed waste matter to accumulate and refused to employ proper preventive methods that would have prevented said fire.

“IV.

“That the said death was caused through the gross negligence of C. Petrossi in that he violated all of the local fire laws of the State of Louisiana and that said violation was directly resulted in the death of Edward Morris Boudreaux.”

Defendant denied negligence on the part of its insured and alternatively pleaded contributory negligence on the part of the deceased “in that at the time of the said fire and his death he was intoxicated as a result of the prior consumption of alcoholic beverages or alcohol, that he failed to discover the existence of the said fire and of the smoke that caused his death, that he failed to timely heed the warning of the fire in the premises occupied by him, that he failed to promptly evacuate his room and leave the said premises, and in that he failed to exercise due care for his own safety, which was a proximate cause of his death.” ²

The trial court rendered judgment in favor of defendant and dismissed plaintiffs’ suit at their costs.

The Court of Appeal found that the cause of the fire was not proven. It correctly analyzed and narrated the testimony and evidence of record as follows:

“ * * * two New Orleans Fire Department officials, whose opinions conflicted in several respects, agreed it [the fire] originated in the kitchen of the restaurant. Anthony Engolia, a fire inspector who conducted the official investigation, testified the damage was so extensive it was not possible to determine what caused the conflagration. He arrived on the scene at 2:15 A.M., approximately fifteen minutes after the first alarm was sounded, to find the building engulfed in smoke and flames.

“Engolia testified he conducted his investigation hours later after the fire had been extinguished. One significant conclusion he reached was that the fire extinguishing system installed in the kitchen did function, since traces of baking soda were found in the charred debris. He explained this equipment was activated when heat from the flames reached 185° temperature, thus releasing quantities of baking soda designed to drop and smother the flames. In order for the system to operate automatically, the heat from the fire must first melt fuse links that ordinarily keep the ■ powdery substance from being discharged. His investigation disclosed these links were in fact melted.

“The second official to testify was David Fontaine, director of the Fire Prevention Division of the New Orleans Fire- Department. He, too, visited the fire while it was in progress and visited the scene once it had been extinguished. Although he stated twice it was impossible to determine the cause of the fire,-he speculated it started when a flame from the kitchen somehow passed through one of the overhead grease filters into the duct work and ignited grease accumulated on the sides thereof. This duct work runs through the interior of the building to the second floor ceiling before it reaches to the outside of the building. tfc ‡ ‡ ³

“In addition to the testimony of the expert fire officials, evidence was adduced describing the restaurant kitchen equipment, and its use and maintenance. The appliances included a stove and two broilers placed next to the rear wall of the kitchen and a deep fryer positioned against the side wall opposite the party wall. All have pilot lights, according to the restaurant employees, that are lit each morning when the kitchen is open and extinguished by being 'fanned out’ at night when the kitchen closes. Workers also described pouring six to eight gallons of grease into the deep fryer each morning and draining it out each night. While not in use, the grease was stored in a metal container that was kept either in the yard or the kitchen! The testimony is in conflict on this point.

“On the night of the fire, the cooks then on duty testified that they performed their usual chores before leaving, namely, cleaning the appliances, draining and storing the deep fryer grease and turning off all the pilot lights. These duties were completed by midnight, at which time the kitchen closed and the cooks went home. Charlie’s bar remained open, as it usually does, for another hour. Before locking up the restaurant that night, the bartender testified he checked the kitchen and was positive none of the stoves or broilers were lit.⁴

“As to maintenance, the record discloses that extensive renovations were completed in the kitchen within six weeks before the fire. Charles Petrossi testified the duct work, the hood over the stove and broilers, the grease filters, the duct work for the exhaust system, the vent stack and the fire extinguishing system were all new. The filters were cleaned weekly and Petrossi was endeavoring to find someone to clean the interi- or of the duct work several days before the fire occurred. * * * Petrossi’s employees corroborated his testimony as to the installation of new equipment and its subsequent maintenance. Further, invoices from the contractor substantiate work was performed as the owner stated.”

The Court of Appeal found that Fontaine’s testimony was contradictory and was weakened by himself; it further found that it did not establish the cause of the fire by a preponderance of the evidence. It felt that there was no probative evidence of record to remove the cause of the fire from the realm of speculation. The Court held that the doctrine of res ipsa loquitur did not apply to the instant matter. It said, “While we concede the possibility fire could have started from one of a number of sources in the kitchen, it is illogical to infer there was no other reasonable cause to which it could be ascribed.” The Court further held that the liability set forth in LSA-C.C. Art. 667 did not attach to the instant matter. It concluded, “Thus we conclude the trial court properly dismissed this suit on a finding plaintiffs failed to establish defendant’s negligence by a preponderance of the evidence.”

Plaintiffs assign the following errors to the decision and judgment of the Court of Appeal:’

“I. The Court of Appeal erred in holding that plaintiffs have not proved their case by a preponderance of the evidence.

“II. The Court of Appeal erred in •holding that the doctrine of res ipsa loquitur was inapplicable.

“HI.'.The Court of Appeal érred in failing to hold that defendant’s insured is liable under the absolute liability provisions of Revised Civil Code article 2315 analogized with article 667.”

Defendant submits: “The opinion of the Court of Appeal in this case is reported as Boudreaux v. American Insurance Company, La.App., 245 So.2d 794. The pertinent findings of fact are aptly stated therein and, defendant submits, also the correct conclusions of law with respect thereto.”

PREPONDERANCE OF EVIDENCE

Preponderance in law means credibility, influence, and weight and not the number of witnesses. Wilson v. Morris, La.App., 139 So.2d 93, cert. denied.

“By a preponderance of evidence is meant, simply, evidence which is of greater weight, or more convincing, than that which is offered in opposition to it; that is, evidence which as a whole shows that the fact or causation 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 Company, 244 La. 569, 153 So.2d 395; Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646.’ This proof may be made not only by direct evidence, but also by circumstantial evidence which excludes other reasonable hypotheses ‘with a fair amount of certainty.’ Naquin v. Marquette Casualty Company, supra.” Gassiott v. Gordey, La.App., 182 So.2d 171 (1966). See, Duhon v. Cormier, La.App., 186 So.2d 645, 648.

“The law places the burden of proof on plaintiff to establish by a preponderance of the evidence the facts upon which she relies for judgment. The term ‘preponderance of the evidence’ means that evidence or that part of the evidence which is of greater weight, which is more convincing and which best accords with reason and probability. A preponderance of the evidence may be said to be that part of the evidence which, because of its apparent correctness, its convincing nature, its quality or its weight, tips the scales in favor of the party upon whom the burden of proof rests.” Bailey v. Travelers Insurance Company, La.App., 210 So.2d 93, writ refused, 252 La. 832, 214 So.2d 160 (1968).

“The general rule, well established in our jurisprudence, is that negligence is never presumed. Thus, negligence or' lack of due care can never be inferred from the mere fact that an accident has occurred. In order to recover damages allowed by our laws for injuries sustained in an accident, a plaintiff bears the burden of proving to a legal certainty by a reasonable preponderance of the evidence each alleged element of negligence contributing to the injury.” Valentine v. Kaiser Aluminum & Chemical Corp., La.App., 205 So.2d 757 (1968).

Negligence must be established with reasonable certainty and by a preponderance of the evidence. Probabilities, surmises, speculations, and conjectures cannot be accepted as sufficient grounds to justify a recovery to a plaintiff who is charged with the burden of proof. Mayes v. McKeithen, La.App., 213 So.2d 340 (1968).

“Causation may, of course, be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate-all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.” Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395, 397.

In our opinion, plaintiffs have not met the burden of proof imposed upon them. They sought to prove negligence on the parts of defendant’s insured and his employees; this they did not do. The theories advanced as to the cause of the fire —escaping gas, accumulation of grease in the ducts, ignition of the accumulated grease by a spark, ignition of drained grease from the deep fat fryers, an unenclosed stairwell, a deficient building, inefficient fire extinguishing equipment, etc.— are speculative. There is lengthy testimony that the fire originated in Petrossi’s kitchen, but plaintiffs did not prove to a legal certainty by a reasonable preponderance of the evidence that the cause of the fire allegedly originating in the kitchen was caused by the negligence of Petrossi and his employees. Plaintiffs presented probabilities, surmises, and speculations; a large amount of the testimony is conjecture. The evidence does not show that the facts sought to be proved were more probable than not. Plaintiffs did not meet the test set out in Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151, 155 (1971), to the effect that, “Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” See, Southern Farm Bureau Casualty Ins. Co. v. Florane, La.App., 173 So.2d 545 (1965). We conclude that plaintiffs who bore the burden of proof did not present evidence of such quality, conviction, and weight as to tip the scales in their favor.

RES IPSA LOQUITUR

Plaintiffs contend that a better set of facts than is herein presented for the application of the doctrine of res ipsa loquitur is hard to imagine. They argue that a commercial kitchen fire, erupting to sizealle proportions shortly after closing hours, emitting smoke and flames, resulting in the death of a sleeping neighbor, would seem to compel the application of the doctrine.

“For the doctrine of res ipsa loquitur to be applicable, the evidence as to the circumstances connected with the accident must be of such a nature that it creates air inference that the accident was caused by the negligence of the defendant, and with a fair amount of certainty excludes every other reasonable hypothesis as to the cause of such accident. This inference is not drawn merely because the accident occurred or the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty, and that there is no other reasonable or logical explanation for the occurrence of such an accident. * * * ” Fruge v. Trahan, La.App., 194 So.2d 478, 482 (1967).

It is the settled jurisprudence of this State that the doctrine of res ipsa loquitur is not a rule of pleading or substantive law, but rather a rule of evidence. Minton v. Continental Insurance Company, La.App., 110 So.2d 789, 792 (1959).

“A determination of a proper instance for application of the principle of res ipsa loquitur has been the subject of volumes of discussion by learned jurists and legal scholars, who have been at pains to point out that the maxim means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that the rule rests for its justification upon the common experience that accidents from such causes do not commonly occur in the absence of negligence; and that it is the lack of direct evidence indicating negligence on the part of the defendant as the responsible human cause of a particular accident which actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense. It is generally conceded that res ipsa loquitur in no way modifies the rule that negligence will not be presumed. The application of the rule does not, therefore, dispense with the necessity tlwt the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along zoith proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the preponderance is with the plaintiff. All that is meant by res ipsa loquitur is ‘that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.’ ” (Emphasis ours.) Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957).

“Although the general rule of law is that a plaintiff who claims damages must allege and prove the facts necessary to establish the negligence of defendant, upon which he predicates his demand, it is equally a well-recognized exception to that general rule that, where the cause of the accident by which the damage was inflicted is more properly within the knowledge of defendant, the accident itself makes out a prima facie case, and the burden is upon the latter to show absence of negligence.” Dotson v. Louisiana Central Lumber Co., 144 La. 78, 80 So. 205 (1918).

“This court has pointed out in numerous decisions that res ipsa loquitur is a rule of evidence, the applicability of which is to be determined in each case at the conclusion of the trial. When the doctrine of res ipsa loquitur is applicable to a case, the accident which has caused plaintiff’s damage makes out a prima facie case of negligence on the part of the defendant, and the burden is then on the defendant to show absence of negligence on his part.” Northwestern Mutual Fire Association v. Allain, 226 La. 788, 77 So.2d 395 (1955). See, Valentine v. Kaiser Aluminum & Chemical Corp., La.App., 205 So.2d 757.

A review of this record does not reflect that the alleged negligence of defendant’s insured excludes every other reasonable hypothesis as to the cause of the fire. Petrossi had knowledge of the physical arrangement of his kitchen; he had knowledge of the operation of the restaurant and bar; he had knowledge of the daily and nightly routine of his employees; he had no knowledge of the cause of the fire. We agree with the Court of Appeal that the fire could have started from a number of sources in the kitchen, but it would be illogical to infer that there was no other reasonable cause to which it could be ascribed (vandalism, carelessness of parties other than Petrossi and his employees, combustion, and sudden electrical malfunction are only a few that could be mentioned). We cannot say that under the facts proved at trial a reasonable and fair conclusion would be that the instant accident was due to an omission by Petrossi or his employees.

Even if we were to admit, for the sake of argument, that res ipsa loquitur applied to this matter and that plaintiffs had placed in the scales proof of the accident and sufficient attending circumstances, we must find that the defendant under the present facts and circumstances exculpated itself from negligence. Petrossi and his employees proved that the cause of the fire was unknown; they proved that the operation of Charlie’s Steak House was clean, painstaking, and considerate of danger. As stated supra, res ipsa loquitur is a rule of evidence; if the burden shifted to defendant, we find that the insured and his employee bore their burden of proof by a preponderance of the evidence. We do not find that defendant’s failure to call the Fire Marshal as a witness indicates that he would have testified against the insured; plaintiffs were not precluded from calling him to testify in their behalf. Thus, the argument advanced by plaintiffs that defendant should have called the Marshal as a witness is without merit.

ABSOLUTE LIABILITY PROVISIONS OF LSA-C.C. ARTICLE 2315 ANALOGIZED WITH ARTICLE 667

LSA-C.C. Article 667 provides:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

LSA-C.C. Article 669 provides:

ÍTf the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.”

In Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133, 140 (1971), we said: “We do not here establish a new standard for liability, but merely apply the standard set by law and applied repeatedly in our jurisprudence. The activities of man for which he may be liable without acting negligently are to be determined after a study of the law and customs, a balancing of claims and interests, a weighing of the risk and the gravity of harm, and a consideration of individual and societal rights and obligations. See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969).”

Plaintiffs submit that in the above words of the Langlois case, “the defendant’s insured has killed this decedent by its fault as analogized from the conduct required under Civil Code Article 667 and others, and responsibility for the damage attaches to defendant under Civil Code Article 2315.”

We do not find the case of Langlois, supra, apposite to this matter. Langlois involved the emission of gas from the platlt of Allied Chemical Corporation and the contraction of chemical bronchitis by plaintiff. Damages were allowed under the theory of strict liability.

Likewise, we do not find the case of Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181, cited by plaintiffs, apposite to this matter. That case involved damage done by vibration. In awarding damages, this Court held that an activity which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards.

Reason dictates and justice demands that, in the final analysis, each case has a peculiar and separate life of its own. The problems of one case are not the problems of another, and therefore each case must be decided on the facts and circumstances shown to exist therein.

The instant fire, cause unknown as found supra, did not occur as the result of a usual act. No activities were being conducted either in the restaurant or in the bar at the time the fire commenced. The kitchen, the restaurant dining room, the bar, and all other facilities were closed; the last remaining employee had departed. Therefore, Petrossi was doing no work on his property which deprived Boudreaux of the liberty of enjoying his altic apartment. The evidence, supra, does not establish that the fire resulted from work carried on in Charlie’s Steak House before closing time. Strict liability cannot be imposed merely because of ownership; under the facts and circumstances herein, LSA-C.C. Art. 667 does not apply to the accident suffered by Edward Morris Boudreaux. No damage attaches to defendant under LSA-C.C. Art. 2315 (Liability for Acts Causing Damage).

For the reasons assigned, the judgment of the Court of Appeal, Fourth Circuit, is affirmed. All costs to be borne by plaintiffs.

SANDERS and BARHAM, JJ., concur in the result. SUMMERS and DIXON, JJ., dissent.

1 . Fontaine testified :

“Q. Wliat did you do when you returned to the scene? [Ho liad gone a short distance away to get Charles Petrossi, owner of the business.]

“A. I attempted to get to a gentleman who was supposed to be on the third floor. We threw a ladder up in the front of the building, and there was a window fan which blocked us. I personally went up to the second floor, but could not find an entrance to this attic apartment.

I came back down, and by this time Mr. Boudreaux, not Boudreaux but Berkett, the owner of the service station that owns the building arrived on the scene and he went up with me. Then he showed me how to enter the building. I sent him out of it and went to the attic.

I searched the building and there was no one in the bed. Of course, this thing is full of smoke. I just felt around and, of course, I had to get out.

I went back the third time and at this time I found Mr. Boudreaux at the foot of the bed.”

Fontaine turned in the general alarm and arrived at the scene of the fire shortly thereafter. He testified:

“Q. Now, when you first saw the fire would you again tell us to what extent the building was ablaze?

“A. The building was approximately fifty per cent completely involved, because it came through the attic. It was illuminating the whole area.

“Q. When you say the building, are you speaking about Charlie’s Steak House?

“A. Right.

“Q. You’re not speaking about the adjoining premises in which you found Mir. Boudreaux, are you?

“A. No, sir.”

2 . A report of tlie Forensic Laboratory, Coroner’s Office, to the Coroner’s Office recites in part:

“Examination Requested : Alcohol, Barbiturates, Carbon Monoxide.

“Description of Investigation : Death of Edward M. Boudreaux.

“Subjects:

“Specimens”

“1. One sample of blood from the above subject.

“RESULTS OF LABORATORY EXAMINATION :

“Chemical analysis of the above specimen revealed an alcohol level of 0.12%, was negative for the presence of barbiturates and revealed a carbon monoxide level of 35% saturation.”

3 . Fontaine testified:

“Q. In your official capacity did you determine the origin of tlie fire?

“A. Yes, sir. It originated in the kitchen.

“Q. Did you determine the cause of the fire, Mr. Fontaine”

“A. No, sir.

* * * *

“Q. Mr. Fontaine, did this open stairwell contribute in any way to the rapid speed of this fire?

“A. It had to help, there is no way to get by it. The fire actually went through the kitchen floor, ceiling rather and travelled. But this would leave hot gasses go up and this was a contributing factor.

“Q. Hot gasses were going up the stairwell?

“A. Yes.

“Q. A contributing factor in wliat, the speed of the fire and spread of the fire?

“A. Right.

“Q. Initially we had asked you what was the origin of the fire, or where did the fire originate, and you mentioned the kitchen. And I believe I asked you as to what was the cause of the fire, and I believe your answer was that you didn’t know, and is that substantially correct?

“A. Right.

“Q. But then when we further asked 3'ou questions it seems like you pinpointed the origin of the fire in the duct work?

“A. Right, sir.

“Q. Is this speculation or positiveness, or how would you classify that?

“A. This goes through past experience. Actually pinpointing the orgin of the fire is fairly easy to do. What caused the fire is something else.

You could take a building and burn it to the ground, and I can bring you back to the origin of the fire. But for me to tell you what caused the fire would be difficult.

■‘Q. In your experience what caused this fire in the duct work?

“A. Accumulation of grease that unfortunately you can’t clean it all out. And they should have it removed at least annually. There is no way, and it’s impossible for anyone to see the accumulation.

If a man has a restaurant and he only serves some steaks a week, and another man sells that many in a year he might have to clean his out once a year, so it’s really hard to say.

“Q. What do you recommend?

“A. We recommend that it be taken off, that is the filter he taken off at least pnce a week and cleaned with a separate set of filters and replaced. Even this is a eommou practice, but it’s still no solution to the problem.

“Q. Now, the duct work that you mentioned where you feel was the origin of the fire, is there just one section of this duct work that you feel was the origin?

“A. The duct work covered the entire cooking area, then it went out through the vent.

“Q. Through the screen we identified ?

“A. Yes, sir.

“Q. Gould you determine after the fire the existence of excessive amounts of grease for example on this grill, or what was the condition of the grill?

“A. The only thing that you could actually determine was the fact as the fire got hotter the grill work changed, or your vent changed color where there was combustion.

“Q. And you’re referring to P-3?

“A. Yes, sir. As the fire got hotter they had soot on here as you can see. (indicating).

a¡ * * * *

“Q. Mr. Fontaine, are there any other possibilities as to the origin of this fire?

“A. I don’t believe so, sir.”

4 . Joseph Thomas LaGrcca, waiter and bartender who works the night shift, testified in part:

“Q. You worked the night of the fire?

“A. I did.

“Q. What time did you leave the premises?

“A. Oh, about a quarter to one.

“Q. Were you the last one to leave?

“A. I was.

“Q. How do you remember it as a quarter to one?

“A. Well, we generally leave every night between one, twelve-thirty and one o’clock.

“Q. Do you remember the night of the fire?

“A. Yes.

“Q. You remember distinctly it was a quarter to one that you closed?

“A. Yes, sir. About.

“Q. Did you look at your watch or anything to remind you?

“A. Well, I know I got home about one o’clock and it takes me about fifteen minutes to go home.

“Q. Who loft with you, or did anybody?

“A. The porter.

* * * * *

“Q. It was your function to lock up the place?

“A. Yes.

“Q. Would you tell me what you do when you are closing up the restaurant?

“A. The last thing I do, I check the kitchen and see that all the stoves are out, deep fryers all empty, the coffee urn out, see that everything is locked up and everything is all right.

“Q. You did that all this particular night in question?

“A. Yes, I did.

“Q. What is that, just a slight cheek, or did you actually go chock the instruments themselves ?

“A. I do that.

“Q. Is that just a slight check by looking at the stove?

“A. No, I go way under there and see that all the pilots are out and everything.

“Q. You turn the pilot off?

“A. They already are off when I check them.

“Q. Everything was off when you checked on this particular night?

“A. Yes.

“Q. You lock up the premises?

“A. Yes.

- “Q. When did you find out that a fire had occurred?

“A. Oh, I think about eight, nine o’clock in the morning. My wife woke me up and told me that Charlie’s Steak House went down. I said, it couldn’t be because I had left there and I had cheeked everything and everything was alright. I told her that it must be a mistake, that it was Erank’s Steak House. That’s .what I thought. And I didn’t pay no attention to it.”