One of the statements in the motion for rehearing is: "We most respectfully insist and contend that since the judge of the lower court thought the Hormel decision controlling, *Page 789 and since we relied chiefly, if not entirely, upon the Hormel decision to sustain the judgment of the lower court, that we are entitled to have this Court point out wherein there is a distinction or difference between this case and the Hormel case. We earnestly contend that there is no distinction or difference between the legal situation in the Hormel case and in this case." This court thinks there is a marked distinction between the Hormel case and the instant case. In the Hormel case, in the statement of facts by the Court it is said: "The plaintiff, in recognition of its liability by reason of its failure to exercise due diligence in the inspection and operation of the truck [which it claimed the defendant had defectively repaired], paid on demand," the sum for which it was suing the defendant. To illustrate: suppose in the Hormel case, after the defendant had repaired the truck, the plaintiff had immediately placed it in its garage and there kept it for thirty-six hours and had then and there sold and delivered it to a third party or had rented it to an independent contractor and had fully parted with possession and the right of possession, and the third party had operated it upon the public highway and an accident had occurred similar to the one referred to in that case, could it be said that the plaintiff in the Hormel case was guilty of active positive negligence relative to such an accident? We think not.
In the instant case there is no allegation in the petition that the plaintiff was operating the frigidaire when the injury occurred, or that the plaintiff had anything to do with the operation of the frigidaire at that time. The allegation is, that "it reinstalled said motor in the frigidaire at the home of said Kantors and that in less than thirty-six hours thereafter a fire originated in said frigidaire, located in the kitchen of the home of said Kantors as aforesaid, the fire having its origin in the electric motor and the fire damaging the property of the third party."
If, on the trial of the case, the burden is imposed upon the plaintiff by the pleadings and the evidence to show that it was not guilty of negligence in the installation of the part in question, or in the operation of the frigidaire, and he fails to do so, a different question would arise from the one now presented. Thus we think that the distinction between the two cases is that in the instant case the plaintiff alleges in effect that it was not operating the frigidaire, and had nothing to do with its operation at the time the frigidaire *Page 790 caused the injury in question, and that its sole negligence was a failure to inspect; while in the Hormel case, the plaintiff alleged that it was operating the truck and that it was liable and paid off the liability "by reason of its failure to exercise due diligence in the inspection and operation of the truck."
This and all other matters in the motion have been considered, and a
Rehearing is denied. Broyles, C. J., and Gardner, J.,concur.