Tanneret v. Merchants' Mutual Ins. ( 1880 )

Spencer, J.

We think it is proved to a moral certainty that this third and final fire could not have been the immediate result of the explosion. It is shown in the evidence that the negroes on the place had come to regard the sugar-house as haunted, and “unlucky.” It is hard to see how the house could have taken fire where it did at that time, except from the hand of an incendiary. We see no reason for disbelieving that the second fire had a similar origin to the third. In truth the apparent impossibility of the third fire resulting from the explosion as its proximate cause, strengthens our convictions that the second fire did not result from it.

The defendant invokes from Greenleaf on Evidence vol. 1, p. 41, the familiar rule that, “ when the existence of a * * * state of things is once established by proof, the law presumes that the * * * state of things continues to exist as before till the contrary is shown, or till a different presumption is raised from the nature of the subject in question,” and he argues that having shown that a fire existed on Friday morning in and about the sugar house, it is presumed to have continued until the contrary is shown. This is true, but the contrary maybe shown either by direct proof, or by presumptions drawn from the facts or even the probabilities of the case. We think the plaintiff has overcome the legal presumption and has shown with reasonable certainty that the fire resulting from the explosion was not the proximate cause of the loss. We have endeavored to weigh the evidence in this case carefully, and must say that it is strongly against the theory of the defence.

[The plaintiff had judgment below which was affirmed, and on application for rehearing: —]

Egan, J.

In order to give to both parties an opportunity to furnish any additional evidence which may be in their power, and the existence of which may have come to light since the trial in the court below, and for the additional purpose of fixing with greater certainty the relative value of that part of the sugar-house, fixtures, machinery, etc., which was destroyed or damaged by the fire which we attribute to the explosion, and of that part which was destroyed by the last fire of Sunday morning, about which we hold our opinion in reserve, we have concluded to remand this cause.

It is therefore adjudged and decreed that the defendant is not liable for the loss or damage caused by the boiler explosion, and what are called the two first fires, which resulted directly from the explosion, and that the cause is remanded for further inquiry and evidence as to the cause of the last fire, and to ascertain the actual and relative value of the damage caused by the two first fires, and by the last respectively.

The result of this inquiry is reported in Tanneret v. Ins. Co., 34 La. Ann. 249.