On Rehearing. A rehearing was granted herein in order to reconsider our ruling respecting the application of the doctrine of res ipsa loquitur. However, counsel for defendant have devoted much of their reargument to a critical analysis of the findings of fact. They maintain that we erred in approving the conclusion of the district judge that the fire was attributable to the heater installed in plaintiff's attic by their client, asserting that the judge merely assumed that such was the fact without any believable evidence in support of his finding.
In view of the earnestness of counsel, we have re-examined the evidence in the case and conclude that the trial judge was fully warranted in his holding that plaintiff has established with reasonable certainty that the heater, which had been installed in the residence by defendant some 39 hours *Page 165 prior to the fire, was the sole and only cause thereof. It would be inutile for us to discuss the testimony as it has been fully analyzed in our former opinion wherein we have quoted extensively and approvingly from the decision of the trial judge.
Since we believe that the plaintiff has successfully demonstrated that the heater originated the fire, does it logically follow that fault on the part of the defendant, as the vendor and installer of the instrumentality, is to be inferred? This question has been answered in the affirmative in our original opinion where we concluded that, even though the heater was not in the possession of the defendant at the time of the damage, the rule of res ipsa loquitur was nonetheless applicable inasmuch as plaintiff had established that no one had tampered with or attempted to manipulate the heater from the time it was installed by defendant's agents until the time of the fire, some 39 hours later. In resolving thus, we rested our decision on a similarity between the facts presented here and those in cases involving damages resulting from exploding bottles of carbonated beverages, leakage of drums of acid and the blowout of a plug in a cylinder of acetylene gas. See Hake et al. v. Air Reduction Sales Co., 210 La. 810, 28 So. 2d 441 and other cases cited in the original opinion.
A reconsideration of the rationale of our former decision has strengthened our conviction of the correctness of the *Page 166 views there expressed.1 The only reason suggested for denying res ipsa loquitur in this case is that the plaintiff is supposed to have had control of the heater, the general rule being that the doctrine applies only when the defendant is in charge of the thing which does the damage. One reason why this argument cannot be maintained is that the matter falls within the exception made in cases of exploding bottles or other substances in sealed containers. Another reason why the contention must fail is that it is not correct to say that the heater was under plaintiff's control at the time of the damage. Consider the facts. Plaintiff buys a gas burning heater from defendant who installs it in plaintiff's residence and warrants, impliedly at least, that it will satisfactorily perform the function for which it is purchased. However, less than two days from the time of its installation and without any act by plaintiff, it starts a fire which causes grievous damage to the house. Can it be fairly said in these circumstances that plaintiff, and not defendant, has control of the instrumentality that caused the damage? Or is it more in keeping with common sense and plain justice to hold that, in the nature of things, the heater would not have caused the fire if it was functioning properly and that plaintiff cannot be expected to know whether it was defectively constructed or installed whereas lefendant, as seller and installer, is fully able to show a freedom from negligence? *Page 167 We think the questions answer themselves. It must be remembered that, in cases like this, (unlike most instances where res ipsa loquitur is invoked) the plaintiff does not obtain the benefit of the doctrine by merely showing the unusual accident and the resulting injury. On the contrary, plaintiff is required to establish with certainty that the instrumentality installed by defendant is the source of the damage; that he was without fault and that the time elapsing between the installation and the damage was such as to make it reasonably evident that the damage would not have been caused if the device had been free from defect and had been properly installed. However, when all of these elements are proven, we see no good reason for not requiring the defendant to show freedom from negligence as then it is fair to assume that the accident would not have occurred but for a faulty installation or defect in the heater.
Application of res ipsa loquitur to matters of this kind is not without precedent in other jurisdictions. For a parallel case see Candler v. Automatic Heating, 1929, 40 Ga. App. 280, 149 S.E. 287. In fact, our conclusion is conformable with the "tendency of modern courts to extend the principle to an ever broadening line of cases". Shain on "Res Ipsa Loquitur" page 438.
Counsel finally assert that we were in error in failing to hold that the defense evidence is sufficient to exhibit a freedom from negligence. This question is one of *Page 168 fact which was resolved against defendant by the trial judge. In our original opinion, we discussed the evidence in detail and concluded that the judge did not err in his resolution. After a careful re-examination of the testimony, our view is unchanged.
Our original opinion and decree herein are reinstated as the final judgment of this court.
1 The writer of this opinion has been converted to this view.