I dissent.
The facts are stated most favorably to the defendant in the majority opinion, but even that statement of the facts of the tragedy, together with the result achieved and set forth there, are sufficient to shock the conscience and sense of justice of any fair-minded person.
This ease came to this court on an appeal from a judgment of nonsuit entered in favor of the defendant Pacific Gas and Electric Company. A motion for nonsuit can only be properly granted when, disregarding conflicting evidence and giving to plaintiffs ’ evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, it can be said that there is no substantial evidence to support a verdict for plaintiffs had such a verdict been rendered. That is the test which should have been applied here.
The crucial question here is whether the heater, admittedly defective, which was installed in the streetcar cabin occupied by the two young people, (one of whom met his death as a result thereof, the young woman receiving permanent and serious injuries as a result of the experience) was a fixture (part of the premises) belonging to the lessor, P. G. & E., or personalty, belonging to the tenant.
It is said in the majority opinion that “there is no evidence from which it could reasonably be inferred that the gas heater was so affixed to the building as to have become a part of the realty. It was a small and easily portable piece of equipment, not fastened down in any manner but ‘just sitting there’ on the floor. It was connected to the gas pipe inlet, but could be detached simply and easily without affecting the premises. The very defect which caused these injuries made it unadaptable to the purpose for which the realty was used. Even if it had been a proper heater, it would not have been ‘essential to the ordinary and convenient use of the property.’ (M. P. Moller, Inc. v. Wilson, 8 Cal.2d 31, 38 [63 P.2d 818].) The ease with which it could be removed and replaced without affecting the physical premises negatived any intent to make *267it a permanent fixture and part of the realty. Thus, the evidence fails to raise any issue of fact which should have been submitted to the jury.” (Emphasis added.)
With the above statement, I most emphatically disagree. This court has again paid lip-service to established rules and then proceeded to refuse to apply the rules to the situation at hand. It is admitted that P. G. & E. had a duty to see that the property which it leased was reasonably safe for the purposes for which it was to be used and the right to repair such defects as it might discover in the premises; that “A lessor who leases property for a purpose involving the admission of the public is under a duty to see that it is safe for the purposes intended and to exercise reasonable care to inspect and repair the property before possession is transferred so as to prevent any unreasonable risk of harm to the public who may enter” (Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 380 [240 P.2d 580] ; Burroughs v. Ben's Auto Park, Inc., 27 Cal.2d 449, 453 [164 P.2d 897]). The only way this court could find to side-step these rules was to hold that there was no evidence from which it could be inferred that the gas heater was so affixed to the building as to have become part of the realty. This statement ignores the recent case of Knell v. Morris, 39 Cal.2d 450 [247 P.2d 352],
Tn the Knell case, supra, it was said that “Whether a water heater is realty or personalty is, of course, a question of fact (see M. P. Moller, Inc. v. Wilson, 8 Cal.2d 31, 38 [63 P.2d 818] ; 22 Am.Jur. 772-773), and various factors must be considered, such as the manner of its annexation, its adaptability to the purpose for which the realty is used, and the intention of the party making the annexation. (See Simms v. County of Los Angeles, 35 Cal.2d 303, 309 [217 P.2d 936].) As to innocent third parties, the intent which controls is that which is reasonably manifested by physical facts and outward apvearances, rather than any express or implied intent of those making the annexation. (See Simms v. County of Los Angeles, 35 Cal.2d 303, 309 [217 P.2d 936] ; Trabue Pittman Corp. v. County of Los Angeles, 29 Cal.2d 385, 397 [175 P.2d 512] ; P. Moller, Inc. v. Wilson, 8 Cal.2d 31, 37-38 [63 P.2d 818] ; People v. Church, 57 Cal.App.2d Supp. 1032, 1048 [136 P.2d 139].) Tn the present case it can reasonably be inferred that the heater was attached to the building by means of gas and water pipes, and the evidence, although meager, is sufficient to permit a finding that the heater was permanently affixed to the realty and was adapted to the purpose for which the *268premises were used. (Cf. Broadway Imp. & Inv. Co. v. Tumansky, 2 Cal.2d 465, 468-469 [41 P.2d 553].)” (Emphasis added.) All seven members of this court concurred in that opinion. Five months later, a majority of this court now agree that there is no evidence from which it could possibly be inferred that the heater here was affixed to the realty.
“No evidence”? In reviewing a judgment of nonsuit we are supposed to state the facts most favorably to plaintiff and to draw all reasonable inferences therefrom in his favor (Knell v. Morris, supra, 39 Cal.2d 450).
The cabin was one presumably intended for use by members of the public; it was located in the high Sierra; it was open on February 3rd (the time of the death and injury) during the skiing season which, in itself, allows the inference that the weather was inclement, to say the least; the windows of the cabin were not opened by Mrs. Harris, and could not be opened by the deceased; the door was so arranged that when opened, it was blown wide open by the blizzard; the heater in the cabin was admittedly defective and was connected to the gas pipe inlet. From this evidence alone, it is certainly reasonable to infer that a cabin located in the mountains and apparently available for use by the public during the winter season must have some means by which it could be heated; that the heater was to be used for that purpose; that its presence there would be considered by an innocent third person, if he gave the matter a second thought, as much a part of the premises as the walls of the building. From the fact that plaintiff’s decedent, an apparently healthy young man (inferable from the fact that he had been on a skiing trip) could not open the windows, it may easily be inferred that the windows were difficult to open. To say, as it is said in the majority opinion, that “Even if it had been a proper heater, it would not have been 11 essential to the ordinary and convenient use of the property’ ” is so ridiculous, when applied to this ease, that it justifies the appellation of Mr. Bumble in Dickens’ Oliver Twist that “the law is a ass, a idiot.” It completely ignores the practicalities of trying to stay in a cabin, without heating facilities, in zero and sub-zero weather.
Rather than drawing inferences and stating facts favorable to the plaintiffs, as we are required to do, the majority of this court goes to great lengths to draw unfavorable inferences and state facts unfavorable to plaintiffs. It is said that the heater was easily removable, that it was “just sitting there” on the floor; that it was unadaptable to the purpose for which *269the realty was to be used because of the “very defect which caused these injuries.” Of course, an innocent third person would at once be aware of the defects in the heater, and say to himself that “this heater is not part of the realty” before putting himself to bed. It is also inferred that even a “proper heater” would not have been essential to the ordinary and convenient use of the property! It is stated in the majority opinion that “Nothing in the record supports the assertion that the cabin lacked proper ventilation. It had windows and a door which could be opened easily.” “Nothing in the record” is an erroneous statement. The record shows that an inspector for the Department of Industrial Relations, Division of Housing, inspected the premises and that one of the reasons this cabin could not be used for motel purposes was that there was inadequate window space for proper ventilation. The record also shows that the windows could not be opened easily.
In M. P. Moller, Inc. v. Wilson, 8 Cal.2d 31 [63 P.2d 818], the court said that “Whether under the circumstances of each ease the property has lost its character as personalty and has become a fixture is primarily a question of fact to be determined by the evidence.” In Simms v. County of Los Angeles, 35 Cal.2d 303, 309 [217 P.2d 936] it was said “It is settled that three tests must be applied ‘in determining whether or not an article is a fixture—namely: (1) the manner of its annexation; (2) the adaptability to the use and purpose for which the realty is used; and (3) the intention of the party making the annexation. ’ (San Diego T. & S. Bank v. San Diego County, 16 Cal.2d 142, 149 [105 P.2d 94, 133 A.L.R. 416].) It is also settled that for tax purposes the ‘intention’ must be determined by the physical facts or reasonably manifested outward appearances without regard to the annexor’s status as landlord or tenant.” In Trabue Pittman Corp. v. County of Los Angeles, 29 Cal.2d 385, 393 [175 P.2d 512], it was said “Section 660 of the Civil Code defines ‘fixtures’ as things that are permanently resting upon or attached to the land or building, but the fact that a trade fixture is removable under Civil Code, section 1019, does not, as plaintiff contends, necessarily negative such element of permanence. We have already indicated that for the most part assessors must be allowed to act on the basis of outward appearances. Moreover, in distinguishing permanence from transitoriness it is not necessary to identify it with perpetuality. (Southern Cal. Tel. Co. v. State Board of Equalization, supra, 12 Cal.2d 127, 136 [82 P.2d 422].) ‘It appears to be sufficient that it [the article *270annexed] is intended to remain where placed as long as the land or building to which it is annexed may be used for the same purpose.’ (36 C.J.S., Fixtures, § 2, p. 900.) ‘It is sufficient if the article shall appear to be intended to remain where fastened until worn out, until the purpose to which the realty is devoted has been accomplished or until the article is superseded by another article more suitable for the purpose. ’ (San Diego Trust & Sav. Bank v. County of San Diego, supra, 16 Cal.2d 142, 151; 26 C.J. 657.)”
The question of whether or not an appliance attached to realty is a fixture or personalty is always a question of fact unless the evidence is undisputed and is susceptible only of one inference (San Diego Trust & Sav. Bank v. County of San Diego, 16 Cal.2d 142 [105 P.2d 94, 133 A.L.R. 416]).
Applying the three tests set forth in the Simms ease, supra, it is at once apparent that the evidence was more than sufficient to permit submission of the question of whether or not the heater in question was a fixture or personalty to the jury. The heater here was physically annexed to the realty by a gas pipe inlet. Its adaptability to the use and purpose for which the realty was used is apparent. It was the only heater available to produce warmth in a cabin located in the mountains where zero and sub-zero weather prevailed during the wintertime which was when this tragedy occurred. The intention of the party making the annexation must be determined by that which is reasonably manifested by physical facts and outward appearances “rather than any express or implied intent of those making the annexation” (Knell v. Morris, supra, 39 Cal.2d 450). Certainly the article here involved appeared to be intended to remain where it was fastened until it was worn out, or until the purpose to which the realty was devoted had been accomplished or until the article was superseded by another article more suitable for the purpose (San Diego Trust & Sav. Bank v. County of San Diego, supra, 16 Cal.2d 142).
I would reverse the judgment.
Appellants’ petition for a rehearing was denied March 16, 1953. Carter, J., was of the opinion that the petition should be granted.