Hartford Fire Ins. Co. v. Triplett , 1920 Tex. App. LEXIS 748 ( 1920 )

On Motion for Rehearing.

[4] This motion has been carefully considered, and while we have reached the conclusion that it should be overruled and the entire case reversed and remanded, we withdraw that part of our former opinion which holds that there was testimony which would support a finding that the fire which destroyed the cotton was caused by sparks of fire which had escaped from a passing engine on the railroad, or from a nearby cotton gin. A careful reconsideration of the statement of facts leads us to concur in the contention of counsel for the railway company to the effect that the evidence would not justify a finding that the fire originated in either of the manners referred to. The most that can be said in support of either of those theories is that the gin had been in operation that day; that one train had passed upon the railroad track about 6 o’clock p. m., and the cotton was discovered to be on fire between 10 and 11 o’clock p. m.

[5] None of the witnesses pretended to know how the fire originated, and while it is possible that it may have been caused by sparks escaping from the gin while it was in operation, or from the engine of the train which passed about four hours before the fire was discovered, it also possible, and, according to the testimony in the record, equally as probable, that it was caused by spontaneous combustion. Also, it may have been caused by some passer-by casting aside an unfinished cigar or cigarette which was still on fire. However, as we reversed the case for another trial as between plaintiff and the insurance company, we deem it right and proper to reverse the entire case.

We are not disposed to agree with counsel for the railway company that the pleadings were not sufficient to entitle the insurance company to a recovery against the railway company, but that question can be eliminated by filing amended pleadings. Also, 'it may be that additional proof can be procured tending to show the origin of the fire; in which event the question of the liability of the railway company should be submitted to the jury. But if such additional proof is not procured, the trial court should again instruct a verdict for the railway company. We adhere to our construction of article 6589, as disclosed in our former opinion.

Motion overruled.

Overruled.