(concurring).
I concur in all that is said in the majority opinion, and particularly in the statement there made that the law of Louisiana is controlling here.
I desire to add only a word or two with respect to that law as it is declared in the two late Supreme Court cases1 on which appellee relies.
In neither of these cases did the court depart one whit from the earlier jurisprudence. On the contrary, taking great pains in the Hake case to declare that it was not departing therefrom, it thus pointed out the difference between the cases invoked by defendant and the case then being dealt with:
“While it is true that the possession test seems to have been employed in many of the cases in our jurisprudence to determine the applicability of the res ipsa loquitur doctrine, it is also true that there are other cases, involving a certain type of accident, wherein the matter of possession in the defendant was not an important consideration. Thus, in actions for damages resulting from exploding bottles of carbonated beverages and from leakage of drums of acid, the exclusive possession and control of the- instrumentalities by the respective manufacturers is not a requirement. It is important though in an action of that type, and a condition precedent to the application of the doctrine, that the plaintiff prove freedom of fault on the part of all through whose hands the instrumentality passed after it left the manufacturer. When this proof is made, negligence of the defendant is inferred *839from the happening of the accident, and to escape liability it must overcome the inference.” 28 So.2d page 445.
Further emphasizing the importance of the absence from the proof of evidence that at the time of the accident the thing was not being mishandled, the court said this:
“The trial judge found as a fact, as his written reasons for judgment disclose, that on delivery the cylinder was placed in an upright position on the concrete floor of the storeroom, and there it remained, unused and in the same condition as when delivered, until the occurrence of the fire; and that at no time during that period was it given rough treatment or was otherwise mishandled.” 28 So.2d page 446.
In the Plunkett case the court reaffirmed the distinction drawn in the Hake case between the two types of cases, one where control by the defendant was, ,and the other where it was not, necessary, and, in doing so, made it quite clear that the case before us was not in its nature or in its proof at all like either of those cases. After stating:
“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.”
At page 711 of 36 So.2d it went on to say:
“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 defendant, as seller and installer, is fully able to show a freedom from negligence?”
Further, it thus pointed out the heavy burden resting on a plaintiff in cases like Plunkett’s case and a fortiori in cases like the one at bar if he would take advantage of the res ipsa loquitur rule:
“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.”
Nothing in the facts or in what is said in either of these cases can afford appellee any comfort here. Indeed, I think they make strongly against his contention.
Hake v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441; Plunkett v. United Elec. Service, 214 La. 145, 36 So.2d 704, 3 A.L.R.2d 1437.