*1 14:0 de- overrule a compelling no reason to-
wise decisis is not stare
cision. merely a rule of reason.
but reflection, my I fear much
After original hearing prompted on the
vote desire to correct what I believed itself, This was error of be-
be an error. particular conceptions of the
cause an
judge as individual should be consequence the law. It
great is more adapt accept that he
important himself to
precedent may to the there end that stability- jurisprudence.
greater
I concur in the decree.
HAWTHORNE, (dissenting). Justice opinion respectfully
I dissent from the must court that the State reserve exception
bill of order to have evidence appeal.
considered on Under this court rehearing, taken on view the court unnecessary majority to rule found it plea prescription on considered express I hearing, therefore
original opinion question. So.2d 704 UNITED
PLUNKETT ELECTRIC ux. SERVICE.
No. 38119. 12,
Jan. 1948. Rehearing
On June 1948.
O’Quin, defendant-ap- Shreveport, pellant.
Hussey Smith, & Shreveport, plaintiffs-appellees and for intervenors- appellees.
HAMITER, Justice. (John H. residence of wife), Plunkett and at Munici- his situated pal City No. Street Boulevard of Shreveport, together with contents, its partially destroyed by fire during the early morning of December 1943. For the loss paid sustained they Louisiana Company Fire Insurance of Bat- Rouge (insurer $6,677.28 house) Central American Insurance *3 Louis, Company (insurer of Missouri of St. $2,000, personal property) limit of policy. its Thereafter, instituted this suit damages Elec- to recover United partnership Service, commercial tric City domiciled of Monroe, charging resulted from a heating central unit installed in the attic of by their house They prayed that defendant. for an award $14,815.78, .total of subject amount recognition to with of the subrogations and given insurers sums respectively them, paid being claim itemized as follows: Damages to house and A. loss of use of during reconstruction, occupancy thereof Thompson, Winnsboro, Thompson & Blanchard, $6677.28; Goldstein, & Walker and 152- appealed. judgment and From the furnishings, defendant fixtures
B. Value of Louisiana $6638.50; Answering appeal destroyed property personal Rouge Baton Company of Fire Insurance to said from and moving C. Cost they praying that plaintiffs, and the deprived of house, being inconvenience in favor, judgment be in their re- increased heat, physical and and thereof, lack of use spectively, $6,677.28 $5,988.50. and anguish, mental $1500.00. In well alleged: his written reasons action, plaintiffs considered For a cause of judgment correctly the trial set know the exact petitioners “That do undisputed forth the pertinent facts of the heating unit of said cause failure litigation as follows: heat- if said function, but aver properly carefully properly been ing furnace had 1943, “In December of defendant en- operated ef- have would installed same into a agreement tered verbal plain- petition- ficiently burned would not have tiffs furnish plaintiffs’ install in resi- further aver house, petitioners ers’ said dence, price $500.00, for the a central fire which cause of the proximate replace unit heating the one then in the partially house was petitioners’ burned house which inadequate was considered of adjustment said faulty installation or capacity. completed Plaintiffs’ house was by Electric Serv- heating unit said United February and was originally ice.” equipped with air ducts and a type vertical heating furnace unit which was located suit, way by
Joining plaintiffs a closet on the first The one in- floor. mentioned insurers. intervention, were the by replace stalled defendant to it was Len- judgment, reason Each under asked type gas consisting nox horizontal furnace subrogation, insur- its for the amount of fan, unit (furnace), main motor and con- paid. ance unit, In installing trols. defendant con- ' in- admitted the answer defendant existing nected the duct work in the house unit, heating denied stallation to a small new amount of duct work de- fire, that it was and averred caused necessary by fendant made change utmost care and in a with the installed location unit. furnace proper manner. installed the defendant burns natural *4 gas was of merits defendant to heat air'which is through the distributed trial a .After In- pay to Louisiana Fire cucts to the various rooms condemned house ; by operated by fan a blower a motor Rouge $6,098.15 using Baton Company of surance. serving current electric house. Defend- Com- Central Insurance American to. pipes gas Missouri, $2,000; from the Louis, to ant extended and first of pany St. the attic and extended the to- floor electric $1,000. plaintiffs, veyed the house into the lower both with the attic, connect wires electrically operated blower. unit. home Plunkett living quarters “The Monroe, Louisi-
“Defendant, domiciled in night On the were on the lower floor. ana, employees to Shreve- its sent three of fami- 24th, entire practically December installing they work of port and did the ly ill was with “flu”. Mrs. Plunkett had No unit Plunkett home. heating in the up gotten baby out of 'bed with her who defendant or permit was obtained ill gone was and into the kitchen where employees Building In- from its there gas range lighted which she Inspector or Elec- spector, the Plumbing says warmth. She she sat in front of Shreveport, Inspector nor was the trical the range night most of the until about six re- inspected these work officials o’clock the morning of December 25th City of Shreve- quired by ordinance of (Christmas), when she heard someone pressure were made on the No te«sts port. . pounding em- lines installed. These front gas shouting. extension door and began the installation ployees of defendant It was then discovered that the attic of the three o’clock in afternoon work about enveloped house was in flames and the completed and the same December 22nd Plunketts tushed frorh building night operating about 11 P.M. unit started the and clothes and barefooted.
home. the same On December date when 23rd, in the they left the afternoon, Plunkett [*] [*] [*] ‡ [*] ‘ “The evidence heating, discloses that this engineer Phillips, manager M. E. Mr. comes, product, unit is manufactured but- conditioning and air divi- or disassembled broken down. It is as- business, came to the defendant’s sion of put sembled together at the time and home, approved checked Plunkett place of installation. The mechanical con- pro- of the unit and installation general trols thereon are at set the same'time and working operat- the unit to be nounced place. things, All together these with the satisfactorily. unit continued to ing gas new and electrical extensions, were until about ten o’clock thereafter 'function ' done this case by defendant’s em- December-24th, when the night of of' the * *” * ployees. City Shreveport current in the electrical disrupted by rainy freezing weath- brings'us to a Consideration'of’ City case, under causing'wires break the issues er first of .which is: (cid:127) started'from; or. not electricity- whether “the.fire ice: The t-hei' accumulation course;' com; heating, appellees unit..-Of servicing the Plunkett' home was cut off very" dieLVDefendant,' -that it in- vigorously! became tend house cold- contention; challenging that longer insists- the furnace con- heat *5 156 155 one-eighth inch and and inch line with a one designed perfectly heating unit was opening the attic through it And nozzle regulated. carefully and installed to fan; fire com most of the ventilator found suggests reasons possible house, most playing north of the fire, right, rats our side such as of mencement fire, heating com around a spontaneous of the seat of the also matches and with Closets below other clothes and unit installed in the attic. mass of bustion in involved in fire. We attic. were property in the and under also stored personal fire, found portion of the large put out the fact in favor resolving issue of this gas, off, gas escaping meter cut ordered that, judge commented trial appellees, the put fire, checked remaining and out inescapable the con- makes “The evidence mostly which was that around section. I from the heat- fire started that the clusion very that think covers it well.” we cannot conclusion unit.” With ing fully supports Further, it. he record testified: disagree; shortly scene reach the first to Among “Q. Was this one of the cases where Captain the fire’s commencement after any your there was doubt mind and his assistants Mangham Turner J. what caused the fire? Shreveport Fire De- 7 of Station No. pointing “A. All indications start Mangham testified: Captain partment. my beyond fire settled that mind rea- a you will relate Mangham, Captain “Q. doubt started sonable it around you you did when just what Court to the heating unit and was caused . 217 Boulevard at at their residence arrived heating unit. Shreveport City of on that date? Yes, telephone sir. We had alarm “A. a “Q. you Did anything any part find Boulevard, on fire. We came to 217 house building your that indicated to mind Centenary Boulevard the other down the fire could have any- been caused my company hose made company laid thing other than heating else unit? coming out up. On we saw arrival No, sir, I “A. did not.” gable end of the house the east smoke, we tried to make our Accompanying Captain Mangham full so into the get to of the fire as burning entrance to seat house were firemen C. A. Free- McDowell, gained Homer G. possible. We entrance man and both quick also from Station They whom were No. 7. the little front door went to through the the seat of likewise found the fire be usually easy place hallway, which is an heating unit and observed noth- around You could tell most get into the attic. instrumentality ing other than to which coming from the to be attic. fire seemed be attributed. could blaze and a half two entrance We made finding entering applicability house and Others the the of which is be deter- fire to have been around the mined seat on the conclusion of the trial. Ger- Robert Neff ald et Company unit were ux. Oil Messrs. Standard inspec- al., Ford, I. both of whom made Louisiana et C. La. So.2d 233. appropriate plain- tions hours after the occurrence of It case a few where the con- damage. originally expected tiff cannot former to have in- building accident, and rebuilt after formation as to structed the the causes *6 burning; latter, whose business is defendant, the that the whereas on the contrary, claims, adjusted adjusting the of must insurance be assumed be fully informed on intervening insurers herein. subject, losses for the the and further where the accident is of the kind which ordinarily does not Having the unit concluded that occur when due care has been exercised. fire, we turn now responsible for the In such plaintiff case the a need neither al proved spe- appellees if have to determine prove lege particular nor acts of omis part negligence cific of defendant sion or commission from which the acci it. Their counsel.maintain that installing itself, dent resulted. The accident accord proved, arguing .sufficiently it has been rule, ing to the creates an of neg inference that the fire that the evidence establishes ligence, escape liability and to the defend by properly a was caused failure co- ant must and overcome rebut the inference. gas valve of furnace ordinate Lykiardopoulo Orleans & current; v. New making C. R. of the electric Co., 309, Light 575, Power 127 La. 53 & So. pipe faulty gas into a connection of 976; Ann.Cas.1912A, Loprestie Roy furnace; v. Mo by leaving or. loose a con- La, tors, line, Inc., 239, 11; 191 installed de- 185 along gas Hake nection So. et attic, employees a few Air fendant’s v. al. Reduction Company, Sales 210 There evidence from the ad- feet unit. 810, 28 La. So.2d 441.
duced, true, tending to that each show it is determining the applicability In of negligence might of acts of mentioned the doctrine the courts often resort to the committed; but, according to have been possession test, e., i. whether or not the record, none of appreciation our instrumentality allegedly causing the ac certainty. legal proved with pos at the in the
cident was time exclusive session control of the necessary and defendant. A. makes consid This J., Inc., & litigation Distributing Southern Cities light of v. of eration La. 1051, 477; Company, 173 139 loquitur, So. ipsa relied res on doctrine Jones Corporation al., applied by Shell Petroleum et 185 by appellees and v. alternatively 447; 1067, v. rendering its 171 Davis Teche decision. La. court So. the district Lines, 1, evidence, Inc., 200 365. La. So.2d furnishes rule doctrine possess, On control is assumed possession defendant fact But the hand, fire always time essential the other at an defendant is not plaintiffs’ home un- held to the unit was has been element. The doctrine management. From where the der their applicable actions control in numerous above which, keeping with the possessed and all of were articles offending authorities, the occur- doctrine on it follows by the controlled defendants if it ipsa loquitur applicable res here accidents, those rence of the such in no exploding bottles has proved been resulting 'from damages control, manner negligent manage- in their beverages, leakage carbonated ment operation unit. acid, of a and from blowout drums of acetylene cylinder gas. Im- plug in a issue, Respecting this defendant contends portant though in actions this class is system per- was functioning since the plaintiff prove freedom of fault fectly engineer premises when its left the through whose hands the of all approximately 39 hours before Mr. instrumentality after the de- passed it left tampered Plunkett with the con- must have Inc., Service, & v. Motor Sales fendant. unit more heat. re- trols of the to obtain al., La.App. Co. Chemical Grasselli contention, jecting well holding as in 623; Auzenne 131 So. Gulf Public v. applicable, the trial com- 54; Co., La.App., 181 “ So. Auzene Service * * * says mented This Mr. Plunkett : Co., La.App., 188 Public Service So. Gulf he did does Mrs. not do and so Plunkett. We *7 512; Ridder De Cola Bot Lanza Coca v. testimony accept Why their as true. would 217; Meyers So.2d La.App., tling Co., v. up the gas turn in Plunkett want to this i Co., Ltd., Bottling Coca-Cola Alexandria furnace in City the attic after the electric 737; Ortego al. Nehi et La.App., 8 So.2d stopped current had failed and blower the al., 199 La. So.2d Bottling Works fan, only get the to the means heat to the Compa Reduction Sales 677; Air Hake v. Obviously, lower floor? no additional heat ny, supra. could be thus secured.” record furnishes good The rea case, appears which instant the approve for refusal to finding our son this principle be to the similar actions to Especially is this fact. true the since class, the unit the last mentioned in much judge position trial was better by home plaintiffs’ the defendant placed in integrity pass upon plaintiffs to than of the kind that does not concedingly we. are a building when due ordinarily fire set (the ipsa Therefore of res installing exercised in it. has been 'care loquitur being applicable), defendant, expected have be (cid:127)Too,, cannot herein, escape liability carried the burden regarding installation its information . quantum, awards made negligence As to the overcoming inference of inadequate. by neither created the occur- be excessive nor on its that was seem to that Further, making this it showed trial rence fire. To do them the tests, analyzed thoroughlv correctly certain two after the installation on the evi- occasions, conducted its dence follows: different employees which disclosed engineer its policy “The fire insurance system. Admittedly, no defects Although is not in evidencé. Louisi- house however, inspection, secure an did it not Company paid plain- Fire Insurance ana test, pressure gas together with $6,677.28, tiffs rebuilt house was employees line which its extended into Neff, contractor, Robert under a contract required by is ordinance to attic calling (P-4) ‘complete for the restoration plumbing inspector Ihe made of Shreve- * * *, removing replacing all connection, port. according And in this materials, burned all discernible- removing record, on entering the firemen damage,’ signs of fire and which water gas burning attic of house found there $6,098.15 paid. sum The evi- line, being gas emitted from extended account for dence does difference. unit, eight six feet which some We think the company insurance only can broken described as either or contain- recover latter sum. Furthermore, ing a loose connection. as we policy “The personal prop appreciate evidence, engi- defendant’s erty is not American employees evidence. neer Central did not test the unit with Company paid plaintiffs Insurance the .full the electric disconnected, service which policy, amount of the to-wit: Mr. $2000. omission C.. seemingly significant becomes testified that he Ford checked I. items when is remembered that oc- personal property and was satisfied that while curred the electric blower was not the loss was sufficient to absorb the operation entire disruption due to a of the electric policy. company amount en service to the house. titled to recover amount. Had these last tests, mentioned two to- gether required inspec- the ordinance claim “Plaintiffs’ in item ‘A’ dam been, tion, on, very probably carried plain- ages occupancy ‘loss of use of during tiffs’ house would not have been reconstruction,’ burned. but the evidence shows that And because omission of defendant plaintiffs plaintiffs’ moved into the home of respects compelled agree in these we are the fire sister after and remained there un *8 reoccupied they their court that its burden rebuilt with district til home overcoming paid proof There is negligence support has no rent. inference this discharged. judgment been for claimed loss. not (cid:127)163 McCALEB, dissents, being of the de property personal
“For the J. ipsa loquitur of res opinion that the doctrine ‘B’ the sum in item claim stroyed, plaintiffs’ application case. without to this the is than $4,638.50 more $6,638.50 or In Central paid American them amount proof in Company. We think
surance HAWTHORNE, the de- J., concurs in indefinite unsatisfactory too regard por- affirms that as it except insofar cree of the $2000 in excess support judgment the lower court judgment of tion insur subrogated adjudged to which is plaintiffs in- damages for awarding company. ance opinion convenience, being of From this
damages are.excessive. allowed he dissents. portion for “Finally, plaintiffs $1500 claim deprived of use being in inconvenience an Rehearing. mental home, On physical for
their doubt, Without guish, etc. McCALEB, Justice. much and suffered inconvenienced greatly dam anguish in mental in granted herein order physical and rehearing A being forced home and respecting ap- new ruling their age to reconsider our night and clad barefoot therefrom plication ipsa loquitur. of the doctrine res clothes, ice cold of the exposed to the However, counsel defendant have de- early when morning hours outside reargument voted much of criti- their to a ill with flu children were they and their analysis They findings cal fact. pneumonia or other with threatened maintain approving that we erred things are not sus complications. Such judge conclusion that the of the district damages, they proof in but ceptible of exact was attributable to heater installed injuries which real client, nonetheless plaintiff’s asserting are attic their Plaintiffs be allowed. damages should judge merely that the assumed that such and one- their home some two were out of fact without believable evi- Fortunately, evi half three months. support finding. or dence in of his suggest that the illnesses dence does counsel, of the earnestness of we In view aggravated prolonged family were evidence in the have re-examined the case experience. In such cases terrible their fully that the trial and conclude its discretion in must exercise Court plaintiff holding in his warranted has think and we the sum damages fixing the certainty reasonable established adequate.” fair and $1000 heater, which had been installed in by defendant some 39 hours the residence judgment is affirmed. *9 166 165 n only expressed.1 views prior fire, only the sole and there reason to was 'the suggested loquitur in be for us for denying ipsa cause would inutile It thereof. res as it to testimony plaintiff supposed has been this case to is the is the that discuss fully opinion general where- have had analyzed heater, in our former control the the extensively approv- only quoted being applies rule that in we have the doctrine charge trial ingly judge. of the when the in from the decision is defendant thing which reason damage. One does the plaintiff that the has Since we believe why argument is be maintained cannot successfully demonstrated the heater exception that the matter within falls fire, logically it follow originated does in or other exploding made cases of bottles defendant, that fault on Another substances in containers. sealed of the installer instrumen- the vendor and why fail is that reason must contention question tality, has inferred? is to be heater was say it not correct that the is in in the affirmative our been answered plaintiff’s under the time control at that, we where concluded original opinion damage. Plaintiff the facts. Consider in pos- not heater was though even buys from defendant gas burning the time of the a heater defendant of the at session loquitur ipsa res damage, rule of it residence and plaintiff’s who installs plaintiff applicable inasmuch nonetheless least, it warrants, will impliedly at had tampered one that no established had perform the function satisfactorily manipulate the heater attempted to with or purchased. However, is which less it than time it installed defend- days from the time two of its installation agents fire, ant’s until the time of the some by plaintiff, and without it starts act a thus, resolving In 39 hours later. we rested grievous damage which causes similarity our decision on between the fairly itCan said in these cir- house. presented here and those cases in- facts plaintiff, not cumstances defend- damages resulting from volving exploding ant, instrumentality control has of the beverages, leakage carbonated bottles damage keep- ? Or it more caused is plug and the blowout acid of a drums of justice plain with common sense ing acetylene gas. cylinder of Hake in a See that, things, nature of hold Co., Reduction Sales al. v. Air 210 La. would not have caused the fire if heater it 810, 28 other cases So.2d cited in functioning properly plain- and that Was original opinion. to know whether expected cannot be tiff defectively constructed installed
A reconsideration of the rationale installer,, defendant, as seller and strengthened decision has whereas our former negli- fully to show a freedom from of the is able conviction correctness of our opinion of this converted this view. The writer has been - gence? questions We think the answer fact which against was resolved defendant that, by themselves. It must be remembered judge. opinion, trial our original this, (unlike cases like most instances we discussed the in detail and con- evidence ipsa loquitur where invoked) res is cluded did err his plaintiff does not obtain benefit careful resolution. After re-examination by merely' showing unusual testimony, unchanged. is our view injury. resulting and the theOn accident original opinion Our and decree herein plaintiff required contrary, establish are reinstated as *10 judgment the final of this certainty instrumentality in- court. the source of the stalled defendant is fault and damage; that he without HAWTHORNE, (dissenting). Justice the installa- elapsing between that the time This court in damage said Hake al. Air Re- was such as to make tion and the Co., 810, Sales duction 210 La. damage would So.2d reasonably evident that 441, that there are involving the device been cases a cer- had caused if have been not type properly in- tain wherein matter been had accident from defect free possession im- However, all of in the defendant is these ele- not an when stalled. good portant see reason proven, we are cases consideration. Those ments resulting explod- actions for damages show from requiring defendant for not ing beverages fair- bottles is carbonated as then it negligence freedom from leakage In- have of drums of those not from acid. would the accident assume that cases, however, what- question was no there faulty for a installation or de- occurred but causing the instrumentality ever as fect in heater. damage, question and no' cir- from the loquitur mat Application ipsa res cumstances of each case the accident was precedent without is ters of this kind ordinarily such as would not have occurred parallel case For jurisdictions. in other negligence unless there had been Heating, Automatic see Candler v. defendant, accordingly fact, óur 287. In 280, 149 Ga.App. S.E. loquitur applied. of res ipsa doctrine with the “tenden conformable conclusion is my opinion, in in those which cases principle extend the courts cy of modern possession plaintiff, is the courts in broadening line' cases”. ever to an proof the strictest should demand that the Loquitur” page 438. Ipsa “Res Shain on instrumentality of defendant the' caused damage. proof in the' instant case we finally assert that were Counsel certainly not conclusive that the fire was is- the defense failing to hold’ error by fhé heater. The'most that ca'n be caused exhibit freedom sufficient to evidence is proof from a of all summation question is one said negligence. This testimony the cause regarding witnesses’ opinion the their is that fire because the fire have caused heater must fire to oth-
they not attribute the could the evidence An examination of
er cause. every who testified on witness
shows caused heater point concluded that the plaintiffs’ house attic of because the area around most charred only circum-
heater, I consider is which conclusive,
stantial, evidence and not the heater. caused fire was one, my therefore, proper
case, not a ,the application
opinion, for the loquitur. ipsa res
COTTON *11 34028.
No. 15, 1948.
June Suthon, Jr., Orleans,
Walter of New J. appellant.