This court said in Hake et al. v. Air Reduction Sales Co.,210 La. 810, 28 So. 2d 441, that there are cases involving a certain type of accident wherein the matter of possession in the defendant is not an important consideration. Those cases were actions for damages resulting from exploding bottles of carbonated beverages and from leakage of drums of acid. In those cases, however, there was no question whatever as to the instrumentality causing the damage, and no question that from the circumstances of each case the accident was such as would not ordinarily have occurred unless there had been negligence on the part of the defendant, and accordingly the doctrine of res ipsa loquitur was applied.
In my opinion, in those cases in which possession is in the plaintiff, the courts should demand the strictest proof that the instrumentality of the defendant caused the damage. The proof in the instant case is certainly not conclusive that the fire was caused by the heater. The most that can be said of the proof from a summation of all *Page 169 the witnesses' testimony regarding the cause of the fire is that in their opinion the heater must have caused the fire because they could not attribute the fire to any other cause. An examination of the evidence shows that every witness who testified on this point concluded that the heater caused the fire because the attic of plaintiffs' house was charred most in the area around the heater, which I consider is only circumstantial, and not conclusive, evidence that the fire was caused by the heater. This case, therefore, is not a proper one, in my opinion, for the application of the doctrine of res ipsa loquitur.