This appeal by plaintiff, Verena Broussard, is from a summary judgment in favor of defendant, Lamar Plumbing Service Company.
The substance of plaintiff's very brief petition is: On the 3rd day of June, 1965, one of defendant's employees (Melville Moon) serviced a dishwasher in plaintiff's home; after Moon had quit for the day, a fire occurred in plaintiff's kitchen, spread throughout the house, causing considerable damage to the same, all of which was proximately caused by the negligent acts of defendant's employee, Moon.
Plaintiff's testimony was that the machine had been smoking several days before the day Moon inspected her machine.1 On that day, he told her the fan motor was only burned out and that it would be allright for her to go on and use the machine until he could order and replace said motor; that she continued to use the machine for several more days, after which a fire occurred in the same approximately 30 minutes after she had quit using it, causing damage as aforesaid. She knew not the cause of the fire.
Plaintiff filed no reply to defendant's motion for judgment, but did file an affidavit by Don O'Dell, a fire marshall for The City of Beaumont, in which it was stated that, after the fire, he inspected plaintiff's residence and '* * * concluded at that time and it is my opinion now that the fire originated * * * in the dishwasher, probably as the result of an exposed heating coil coming in contact with the wall for a sufficient length of time to ignite that combustible material.'
Moon, testifying for defendant as an expert on such machines, stated that upon going to plaintiff's home, he found the fan motor in the machine was not running. He merely told plaintiff what was wrong and that as soon as he received a new part he would install it. Inspecting the machine, he checked the heating element and the fan motor by cycling the dishwasher through the drying cycle. He told plaintiff she could use the machine but that it would not dry the dishes. He determined that the failure of the fan motor was the cause of the smoke; that otherwise the machine, at the time of his inspection, was running perfectly. His testimony reflects that his inspection was the usual and customary one in such type of business. In short, his testimony eliminated every possible inference or probability that the fire was the result of any negligence or the proximate cause of any act or omission attributable to him.
In plaintiff's brief it is contended that the evidence raised a fact issue that defendant owed a duty to plaintiff to reasonably inspect her machine; that defendant failed in its duty, thus causing injury. We do not agree.
The testimony of Moon, compared with that of plaintiff and O'Dell, controls the case. Plaintiff's testimony of itself was of no consequence on the issue of the burden of proof cast upon defendant.
We are left with the affidavit of O'Dell to raise a disputed issue of fact against the positive testimony of Moon hereinbefore set out.
With all the testimony in mind, the problem before the trial court was whether the evidence before him, if offered in trial, would compel the submission of issues of *Page 736 fact to the jury. The testimony of O'Dell or plaintiff did not contradict the testimony given by Moon in any material respect, and we are of the opinion that the court correctly ruled in favor of defendant.
Affirmed.