Fountain v. Connecticut Fire Ins. Co. of Hartford

         OPINION

          HART, J.

          This is an action by the plaintiffs to recover upon a policy of insurance issued by the defendant and covering certain goods or merchandise contained in a certain brick building in the city of Santa Rosa, known as the "Shea Building." The complaint sets out in general terms the conditions and covenants of the policy, and alleges that on the 18th day of April, 1906, the goods upon which said policy was issued were destroyed by fire; that thereafter and in due time plaintiffs furnished the defendant with proof of their loss; and that said defendant has not paid the said loss or any part thereof, etc. The answer, in addition to denials of the material allegations of the complaint, pleads as an affirmative defense the claim that the building in which the insured goods were situated at the time of their destruction by fire, or a substantial part of said building, had before said fire had attacked the goods fallen as a result of the shock of the earthquake which occurred on said 18th day of April, 1906. This defense is founded on the following provision of the policy declared upon: "If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease." The cause was tried by a jury and verdict returned in favor of the plaintiffs for the sum of $1,000, the sum for which the policy called together with interest on said amount in the sum of $116.66. The court thereupon entered judgment for plaintiffs in conformity with the terms of said verdict. This appeal is from the order denying defendant’s motion for a new trial.

          Besides the general verdict, the jury returned answers to a number of particular questions of fact submitted to them by the court.

          The validity of the general verdict and the answers to the particular questions of fact are assailed by the appellant upon several grounds: (1) That they are not justified by the evidence; (2) that the court misdirected the jury in matters of law; (3) that the court erred in its rulings admitting and rejecting certain testimony; (4) that the court erred in refusing to compel the jury to return definite answers to certain of the particular questions of fact submitted to them. It is further insisted that the refusal of the court to submit to the jury certain instructions proposed by the defendant involved rulings prejudicial to the defendant.

          The dispute between the parties to this action is one of a number of the same kind and involving like issues of law and of fact which have found their way into the courts of this state through the earthquake and fire occurring in many of our coast cities in the month of April, 1906, and the real controversy here, around which revolve all the points upon which a reversal of the order is demanded, arises out of the question presented by the affirmative defense set up in the answer, viz., whether there had fallen prior to the time at which the fire attacked the insured merchandise a material or substantial part or parts of the building in which the plaintiff’s store was situated.

          The burden was cast upon the defendant to prove by a preponderance of the evidence the contention founded upon its affirmative defense. If the court’s interpretation of the "fallen building" clause of the policy sued on, as declared in its charge to the jury, is correct, then, in our opinion, there plainly exists a substantial conflict in the evidence upon the vital point or issue tendered by the special or affirmative defense. Or, to put the proposition more accurately, assuming the court properly interpreted the clause mentioned, the defendant failed to sustain the burden cast upon it to satisfactorily prove the claim involved in its affirmative defense.

          We think the law of the case was well and correctly stated by the court, as we shall presently undertake to show by both reason and authority. We shall therefore first briefly examine the testimony for the purpose of showing that the most that can be claimed by the defendant in that regard is that some of its witnesses gave testimony which, had it been accepted by the jury, would undoubtedly have been sufficient to have sustained a verdict returned in harmony therewith against the power of a reviewing court to disturb it. The store in which the insured goods were situated and destroyed was a part of a building known as the "Shea Building," but sometimes referred to by the witnesses as the "Eagles’ Building" and the "Fountain Building."

          As already stated, a majority of the witnesses for the defendant testified to facts from which it would follow that a substantial part of the building had fallen before the fire broke out, or, at least, before there was any visible evidence of fire in the building. But, after the defendant had rested its case, the plaintiffs introduced proof which, while in its nature largely circumstantial, tended to contradict that of the defense, as will appear from the following brief reference to the testimony of witnesses testifying on behalf of plaintiff.

          The witness Hahman, member of a firm engaged in business in a building adjoining the one occupied by the plaintiff Fountain, reached the block in which his and the Fountain store were located shortly after the earthquake shock was first noticed by him, and he testified in part as follows: "Our store occupied the storeroom of the Kinslow Building, adjoining the Fountain (Shea) Building. I went into the building. The main part of the store was intact. Part of the gallery was down. Our stock of goods and merchandise, as far as I could observe, was some of it shaken off the shelves, but no material damage done. As near as I can tell the west, east, and north walls of our storeroom were intact, when I went in there. I remained in our store that morning a very short time. Not over two or three minutes, I believe. I left because I was afraid the fire might catch me inside the building. I heard the crackling of the flames in the adjacent building there, the Fountain Building on the east. The noise made by the fire in the Fountain Building was sufficient to make me think my life was in danger to stay in the storeroom. I expected to see it break through our walls there at any moment. *** It was half an hour after the earthquake that I heard the fire in the Fountain store. When I got out of my store, there were flames burning in some of the adjacent buildings. I think it was along there in the Fountain Building and the saloon adjoining. The Fountain Building and the Pohley saloon were afire at that time. *** As near as I can remember, the back walls of the Fountain Building were intact at that time. *** I did not pay much attention to the front walls of the buildings. There was some débris in the street."

          L.W. Burris, cashier of the Santa Rosa Bank, testified: "I am the cashier of the Santa Rosa Bank. I was a member of the city government on April 18, 1906. I made an examination of the front and rear of the Fountain Building on the morning of April 18, 1906. The rear wall towards Fifth street did not seem to be damaged. The lower walls, I didn’t see any trouble with them. I didn’t notice any breaks in the structure of the storeroom occupied by Mr. Fountain. For the purpose of ascertaining whether there were fires in there or not, I looked into the Fountain store, and it seemed to be shook up inside, goods scattered and things of that sort. I did not see any break in the structure of the lower walls of that building."

          M.G. Hall stated that within 60 seconds after the earthquake he observed a large column of smoke issuing from either the Moodey or Shea Building. (These buildings adjoined each other.) He said that when he first noticed the smoke it had arisen to a height of 75 or 100 feet. After he reached his own office, which was located near the Fountain store, he could hear the "crackling of the flames" either in said store or in the Moodey Building.

          Dr. Hoffer, a dentist, had an office in the upper story of the Shea Building, over the Fountain store. Immediately after the earthquake he reached his office. He testified: "Dr. Mallory had an office right over Fountain and I had the hall opposite. Between Dr. Mallory’s window and mine the brickwork was about eight or nine feet in width. My office was about 12 feet in width. The staircase between my office and Dr. Mallory’s office was about five feet wide. When I got into my office the floor was intact and the floor of my office was over the ceiling of the stores below, and was not broken. I did not pay any attention to the lower story, but I think they were all right. The party walls of the Eagles’ Building were up. I could not see the rear walls. The two side walls were up. The side wall on my side of the office was up, but Dr. Mallory’s walls I could not see."

          Mrs. Martin, who, at the time of the earthquake, lived in the Doyle & Overton Building, situated two doors from the Shea building, testified in part as follows: "The west wall of the Doyle & Overton Building constituted the east wall of the Moodey Building. A fire broke out in the Doyle & Overton Building a very short time after the earthquake, hardly an appreciable time the fire broke out. I saw fire before I got back to my office— I was right out in the hall. While the earthquake was still acting, I saw fire in the room adjoining my offices. I could not tell by seeing it through a glass door, and I broke it open and found it raging. There was gas in those offices and evidently the gas pipes had broken and something had ignited it, and it was roaring. This was within a minute after the earthquake had ceased."

          From the foregoing brief review of the evidence as we find it in the record, it is very plain that there is a conflict between the testimony produced by the defendant and that of the plaintiff upon the vital point submitted as the special defense.

          It is true, as counsel for the appellant maintain, that witnesses introduced in behalf of the defendant testified that they were present at the scene of the fire which destroyed the building in which Fountain’s store was situated immediately after the first noticeable vibration of the earth from the temblor, and that a material part of said building had fallen before the fire was observed by them. And it is also true, as we have stated, that the evidence presented by the plaintiff was largely circumstantial in character; but the circumstances to which plaintiff’s witnesses testified were, in our opinion, sufficiently forceful to overcome the effect of defendant’s testimony, or, at least, to create a substantial conflict upon the proposition to which the evidence for both sides was mainly addressed, which is all that was required to justify the jury’s conclusion. Besides, some of defendant’s own witnesses failed to fully sustain the special defense. For instance, Dr. Mallory, who had previously testified for the defense, upon being recalled for further cross-examination by plaintiff, admitted that after the fire he made an affidavit of loss and filed the same with the New Zealand Fire Insurance Company, in which he deposed that his personal property, consisting of office equipments, contained in his office situated directly over the Fountain store, had been destroyed by fire on the morning of the 18th of April, 1906. Again, the chief of the fire department of Santa Rosa, having testified as defendant’s witness, made the following statements on cross-examination: "I made an examination of the buildings in the block in which the Fountain store was situated, not over 20 minutes after the earthquake and I concluded that that block was doomed by fire. Within 15 minutes after the earthquake, every building in the block was doomed, whether the earthquake touched them or not. Within 15 minutes after the earthquake I could see a blaze or two, but I could see smoke coming out of at least five or six buildings. Within 15 minutes after the earthquake there was considerable smoke coming from these buildings." This witness further testified, referring to the quantity of brick and other débris in the street directly in front of the Shea Building, that the upper front of the said building was composed of large bay windows, and that "there was not enough brick in the upper front walls of the Shea (Fountain) Building, exclusive of the fire wall, to have caused any considerable amount of brick to have fallen on the street, when the bay windows are taken out." He further stated that the fire wall constituted the largest part of the brick in front, and that "excluding that, and if you had taken every other brick in front of the Eagles’ Building and dumped, it on the sidewalk, it would not have been brick enough to have made any considerable pile of bricks extending out into the street. *** The pillars (iron) that I spoke about were merely placed against the wall. When the earthquake commenced shaking, they fell away, but the wall did not fall out with them. The presence of those iron pillars in the street did not indicate the destruction of the building behind."

          As declared, we perceive no substantial ground upon which we would be justified in holding that the jury’s verdict does not find sufficient support from the evidence. After all, the meaning of the verdict is simply that the defendant failed to establish its affirmative defense by a preponderance of the evidence, and, as is well understood, the question whether a fact is established by a "preponderance of the evidence" is not determinable alone from the mere number of witnesses whose testimony goes to the proof of such fact, nor is it determinable alone by the fact that the testimony addressed to the proof of the fact in dispute may be direct, while that offered to overcome it may be entirely circumstantial. There are other elements and other tests equally as important as either the fact of the number of witnesses testifying one way or the character of the testimony, whether direct or indirect, which may be considered and invoked for the purpose of determining upon which side the preponderance of the evidence prevails.

         "It was for the jury to pass upon the credibility of the witnesses and to draw any reasonably permissible inferences from their testimony." Clayburgh v. Agricultural Ins. Co., 155 Cal. 708, 102 P. 812. For aught that we can determine from the record to the contrary, the jury might have deemed the testimony of the witnesses for the defendant as entitled to no weight whatsoever. We must at least assume that they regarded it with little favor, and we must, moreover, assume that they had good and sufficient reasons for so treating it. That it was within the peculiar province of the jury to totally discard any testimony which, in their judgment, did not bear the ear-marks of verity, is a proposition which will not, of course, be challenged.

         It must be borne in mind that the trial judge, whose mind is trained in and accustomed to weighing testimony, declined to grant defendant’s motion for a new trial upon the ground, among others, of the insufficiency of the evidence to support the verdict, and, as is said in the case of Meyer v. Great Western Ins. Co., 104 Cal. 381, 38 P. 82, "the refusal of the trial court to set it (the verdict) aside is itself of great weight, and shows that in the opinion of the judge who heard the case the evidence was sufficient to uphold it. It is not sufficient thereafter upon an appeal to point out, or even demonstrate to this court, that the verdict is against the preponderance of evidence, or that upon the same evidence other persons would come to a different conclusion. If there is any evidence upon which the jury could have found its verdict, it must be upheld." (Italics ours.) But no question can arise as to the rule as it is thus explained. It is too plainly elementary to require the citation of authorities for its exposition or application. The real question here is, as stated, Did the defendant support its special defense by sufficient proof to justify a verdict in its favor? To this question the answer is to be found in the verdict of the jury.

          Upon the question whether a substantial conflict arises in the evidence upon the principal issue upon which the trial was had, it is important to keep in mind the testimony of the chief of the Santa Rosa fire department, brought out on his cross-examination. There was, according to his version of the situation, but little débris— brick, etc.— in front of the Shea Building immediately after the first noticeable evidence of the shock. The fire, he said, originated in all the buildings in the block in which the Shea Building was situated in the north and east ends, at which points there was, at the time he first observed the Shea Building, no evidence of any part of the structure having fallen before the fire was noticed. He could see from the front into the interior of all those buildings, including plaintiff’s store, and declared that the goods appeared then to be intact on the shelves, "as though piled there yesterday." He further stated, it will be recalled, that the "upper front of the building was composed of large bay windows," and that, excluding the fire walls, "there was not enough brick in the upper front walls to have caused any considerable amount of brick to have fallen on the street, when you take out the bay windows," the fire wall being, he continued, "the biggest part of the brick in front."

          Counsel for appellant subject the testimony presented by the plaintiff to an analytical examination in an attempt to demonstrate its utter unreliability as a support for the verdict from any standpoint from which it may be viewed. The argument thus adduced, addressed to those to whose judgment questions of fact must be submitted and committed, is persuasive, if it may be assumed that nothing appeared in the manner in which the witnesses for the defendant testified which justified the jury, after a full and fair consideration of their testimony, which we must assume they gave it, in disregarding it. This, as we have shown, they had the right to do, if, in their conscientious opinion, it did not carry with it sufficient weight to lead to the conclusion that defendant’s resistance to recovery was sustained. On the other hand, if the jury believed, from the testimony of Mrs. Martin, Dr. Hoffer, Hall, Muther, and other witnesses, whose testimony in behalf of plaintiff was not direct but involved only circumstances, that the fire broke out and attacked the goods of plaintiff before any material or substantial part of the building in which they were situated had fallen as the result of the earthquake shock, we cannot say, from the record before us, but that they were thus justified in reaching their conclusion, for, we think, from those circumstances the fact that the fire did attack the goods before the building or any substantial part thereof fell is reasonably inferable.

          It is a fact within the range of common knowledge, and worthy of remark in connection with the question we are here considering, that the average person is generally so disconcerted in mind on the occasion of a seismic disturbance that his subsequent recollection of the exact nature and order of events necessarily following one after another with lightning rapidity during the progress of such disturbance is exceedingly hazy and dubious. This is true, perhaps in not so great a degree, in cases of fire and conflagrations. No two persons, it is safe to say, can ordinarily be found who, relying upon their own recollection, can even approximately agree as to the length of time during which an earthquake shock of unusual severity has lasted. Often the most exaggerated notion of the duration of a temblor is conceived and adhered to, and frequently, while it lasts, some ordinarily very courageous men temporarily lose their better judgment and betray themselves into the most absurd and ridiculous attitudes and antics. And a severe earthquake, immediately succeeded by a fiercely raging conflagration, whose progress cannot be successfully resisted, would probably intensify the situation, with the result that every spectator, particularly every owner of property doomed to inevitable destruction, would, quite naturally, be in a state of confusion and excitement. These are facts, we say, within common knowledge, and thus readily may it be perceived how, many months after so exciting an event, witnesses could be honestly mistaken in an attempted recital of the many and varying circumstances attending it, and how a jury could well conclude, without impugning or challenging the honest intentions of such witnesses, that their testimony was unworthy of credence or weight.

          We do not question the soundness of the position of appellant that, if any substantial part of the building in which plaintiff’s store was situated had fallen before the fire had attacked plaintiff’s goods, then, in that case, defendant would not be liable under the clause of the policy upon which its defense is interposed. But, as we think we have satisfactorily shown, the jury, either because the testimony presented by the defendant was not of sufficient probative strength to establish its defense to the requisite degree, or because the proof of plaintiff destroyed whatever force its testimony, standing alone, might possess, has by their verdict, of necessity declared that the plaintiff’s goods were attacked by the fire before any material part of said building had fallen from a cause other than from the fire.

          The claim is vigorously put forth that the court erred to the prejudice of the defendant in submitting to the jury the following instruction: "I instruct you that the falling wall clause in the policy of insurance in this action is not to be literally understood so as to avoid the policy if some minute portion of the material in the assured building fall. It means some substantial portion of the building, the falling of which would destroy its distinctive character as such. (Italics ours.) So that if the proof in this case establishes the fact that the front windows fell away from the building mentioned in the policy, or part of the front wall thereof, fell away, but that, notwithstanding such injury to the building it was substantially standing as a building so as not to increase the risk to plaintiff’s goods by fire and in that condition it was burned, the clause in the policy as to the falling of the building or any part thereof would not exempt defendant from liability, if otherwise liable, as before explained."

         In Home Mut. Ins. Co. v. Tompkies et al., 30 Tex.Civ.App. 404, 71 S.W. 812, the trial court instructed the jury in the following language: "*** To avoid the policy, the falling must be of some substantial part of the building; that is, such an integral part of the building, as a whole, as that the falling of the same would destroy the distinctive character of the structure." The Texas court, condemning said instruction as erroneous and prejudicial and reversing the judgment of the trial court, said: "By the instruction given the jury in this case they were required to find, in order that the policy should be avoided, not that some material or substantial part of the building, as such, had fallen, but that there had fallen such an integral part thereof as a whole as that the falling of the same would destroy the distinctive character of the structure. According to the decisions in this state under the valued policy law, the jury were required to believe that the building had been totally destroyed, before they could find for the defendant, thereby nullifying the stipulation as to a part entirely (citing Ins. Co. v. Garlington, 66 Tex. 103, 18 S.W. 337, 59 Am.Rep. 613). While the part that should fall in order to avoid the policy should be a substantial and material part of the building, it would not be necessary for it to be so great a part as would destroy the distinctive character of the structure. In such case the structure could no longer be considered a building, but only débris or ruins." The foregoing language furnishes the inspiration for the criticism of the challenged instruction in the case at bar that the court thus in effect told the jury that, in order to avoid the policy, it was necessary for the defendant to show that the building had been entirely destroyed or become a mass of ruins before the fire broke out and attacked the insured merchandise.

         The accepted interpretation of the "fallen building" clause of fire insurance policies, such as the one contained in the policy here, is as it is stated in Nelson v. Traders’ Ins. Co., 181 N.Y. 472, 74 N.E. 421. It is there said: "The meaning of the clause in question, when reasonably interpreted, is that the insurer is excused from its obligation by either the fall of the building as a structure, or of such a substantial and important part thereof as impairs its usefulness as such, and leaves the remaining part of the building subject to an increased risk of fire." See Clayburgh v. Agricultural Ins. Co., supra, and Home Mut. Ins. Co. v. Tompkies, supra.

          We are of the opinion that an impartial examination of the entire charge in the case at bar will disclose that the court kept fairly well within the rule as laid down by the foregoing authorities. And we further think that a comparison of the challenged instruction in this case with the instruction condemned by the Texas Court of Appeals will make it very plain that there is a marked distinction between the two; for, whatever interpretation may justly be given the language, employed in both instructions, "the distinctive character of the structure," when considered alone and without regard to other parts of said instructions, we think it becomes very clear that the instruction in the present case, when considered in its entirety, as it should be to get its full meaning, furnishes no possible ground upon which its effect may properly be subjected to the interpretation which the Texas court gives to the instruction to which it was called upon to give attention. In the instruction here there is a clear explanation by the trial court that the meaning intended to be conveyed by the language, "the falling of which would destroy its distinctive character as such," was not that the building should be completely destroyed, so that "the structure could no longer be considered a building, but only débris or ruins," but that the clause upon which the special defense is based was not contravened if the proof established the fact that the front windows only fell from the building, or part of the front wall thereof fell away, but that, "notwithstanding such injury to the building, if it was substantially standing as a building, so as not to increase the risk to plaintiff’s goods by fire and in that condition it was burned," the defendant would not in that case be exempt from liability under the clause of the policy upon which it founds its resistance to the payment of the indemnity to which it obligated itself. Moreover, the court, in another part of its charge, in clear and unmistakable language, specifically pointed out to the jury that "it is not necessary that the said building as a whole should have fallen in order that all insurance under the said policy shall be avoided." "It is only necessary," the court declared, "that a material part of said building should fall in order that all insurance under the policy shall be avoided." In the same instruction the court further instructed the jury: "As to what is a material part, I charge you that if you find that a portion of said building fell, and that by reason of said portion falling said building or its contents were placed in a position or condition whereby the same were more readily subject to fire than they would have been if said portion of said building had not fallen, then, in that case, I instruct you that it is your duty to be governed by the evidence, and you should return a verdict in favor of the defendant and against the plaintiff." Thus, it will be observed, the court explicitly explained to the jury what would constitute such a falling of the building as would avoid the insurance under the policy— that is, it plainly put before the jury the real, pivotal proposition in the case, by declaring that if such portion of the building had fallen before the fire attacked plaintiff’s goods as would increase the risk of fire, or as would "more readily subject the building and goods to fire than they would have been if said portion of said building had not fallen," then defendant would not be liable. And we think that this instruction is equally as clear in explaining the meaning of the phrase, "material or substantial part of the building," as the instructions upon the same subject approved in Clayburgh v. Agricultural Ins. Co., supra. Among other instructions given to the jury the court in that case, construing the "fallen building" clause of the policy, said: "As to what constitutes a falling of the building within the meaning of this clause, I charge you that the meaning of the language is that the building must have fallen in whole or in part to such an extent that its integrity as a building was destroyed or substantially impaired." The contingency against which by the adoption of the "fallen building" clause in an insurance policy an insurance company seeks to protect itself is manifestly the assumption of a risk not contemplated by the policy of insurance— that is, to protect itself against a risk which is not involved in the destruction of the subject of insurance by a fire originating from usual and ordinary as distinguished from unusual and extraordinary causes. There is, so far as we are able to understand them, practically no distinction, in effect, between the last referred to instruction in the present case and the instruction from which we have just made an excerpt in the Clayburgh Case. In the latter the court very properly assumes that if the building "had fallen, in whole or in part, to such an extent that its integrity as a building was destroyed or substantially impaired," then there would have been shown such a destruction as would increase the risk of fire beyond that contemplated by the policy and assumed by the company; hence the latter would be immune from liability under the policy. In the case at bar, as we have seen, the court expressly declared that, if so much of the building had fallen as would increase the risk beyond that assumed by the company under the terms of the policy, then the company would not be liable. Thus it must readily become manifest the question whether a material or substantial part of the building within the meaning of the clause under consideration had fallen before plaintiff’s goods had been attacked by the fire was fairly placed before and submitted to the jury for determination. And, furthermore, the language, "the falling of which would destroy its distinctive character as such building," employed in the first instruction here to which we gave our attention, was by the last instruction referred to fully and clearly explained to mean, not that the whole building must have been destroyed in order to avoid the policy, but that only such portion thereof as would be material or substantial or as would increase the risk of fire to plaintiff’s goods. Throughout its entire charge the court, time and again, declared that, while the destruction or falling of a mere trivial or minute part of the structure would not suffice to avoid the policy, the falling or destruction of any material or substantial part thereof would.

          It appears very clear to us that when the instructions are read in connection with each other, as they should be so read and considered, the jury could not have been misled by the language in the first instruction, "the distinctive character of the building as such," assuming that said language involves an erroneous statement, and that it would be prejudicially misleading when read alone.

          Counsel complain because the court refused to submit to the jury the instruction, requested by the defendant, expressly declaring that "if such part of said building fell as would, if said building were not repaired, have impaired the usefulness of said building, then, and in that case, all insurance under the policy herein sued on is void." The rejected instruction perhaps states the law correctly, and it would have been just as well to have allowed it; but we think that the charge of the court covered the principle therein declared, and, as stated, fairly and correctly presented to the jury the law, by the aid of which they were enabled to intelligently consider the evidence addressed to the important question of fact tendered as the main issue in the case, and to reach a just and intelligent conclusion upon the evidence. The refusal to give the instruction could not, therefore, have resulted in any harm to the defendant.

          At the request of the defendant, the court submitted to the jury certain particular questions of fact, to which, save in three instances, direct answers were returned. These answers were, briefly, that the building did not, as a whole, fall prior to its destruction by fire from a cause other than fire; that a part or parts of said building did fall prior to the destruction of said building by fire, from a cause other than fire, but that such part or parts were neither a material nor substantial part or parts of said building, but only "trivial and inconsiderable"; and that neither a substantial nor a material part of said building fell from a cause other than fire prior to the burning of the "stock of goods of plaintiffs contained in said building."

          To the following questions the jury answered, "Don’t know":

          (1) "If you find that a part or parts of said building *** fell prior to the destruction of said building from a cause other than fire, was the usefulness of said building for the purpose for which it was constructed impaired by reason of said falling?" (2) "If you find that a part or parts of said building *** fell prior to the burning of said building and from a cause other than fire, state whether or not the falling of such part or parts exposed the interior of said building to the inclemency of the weather?" (3) "If you find that any part or parts of said building *** fell prior to the burning and from a cause other than fire, state whether such falling occurred before the said goods were attacked by fire?"

          Counsel for appellant undertake to show by an ingenious treatment of the special findings of the jury that there is no finding by the jury, either in its general verdict or by its special findings, with regard to the time at which the fire attacked either the building or the insured merchandise— whether before or after the falling of a material or substantial part of the building. We shall not follow counsel in their rather subtle or metaphysical reasoning in their arraignment of the special findings. We perceive in none of them anything inconsistent with the general verdict. To the contrary, they appear to sustain it. To one of the particular questions the jury unqualifiedly replied that a substantial or material part of the building had not fallen prior to the burning of the insured goods. There is no incongruity between this and the other special findings, and it reinforces the general verdict. Nor do we see anything in those questions to which neither affirmative nor negative direct answers were returned which would have shed any light upon the main issue had they, or such of them as were capable of being intelligently answered, been directly answered in one way or the other.

          The first of these questions was too general to call for a direct and unqualified answer. Besides (and this may be somewhat technical, yet not lacking altogether in substance), there was no evidence introduced disclosing the purpose for which the building was constructed.

          The second question, not directly answered, was whether the part or parts of the building which fell prior to the burning of said building and from a cause other than fire exposed the interior of said building or its contents to the inclemency of the weather. It is very evident that the mere falling away of a window to a building might expose the interior thereof or its contents to the inclemency of the weather, yet the falling of such a trivial part of a building from a cause other than fire would not be deemed sufficient to avoid a policy of insurance under the "fallen building" clause of the policy here. Hence an affirmative answer to the question we are now considering would not necessarily mean that such part or parts of the building as would avoid the policy had fallen prior to the burning of plaintiff’s goods from a cause other than fire. The question was misleading, and the jury’s failure to answer it directly was immaterial and without prejudice.

          An affirmative answer to the third of the unanswered questions would not have militated in the least either against the general verdict or any of the special findings. The jury had answered that the stock of goods of plaintiff had been attacked by fire before a substantial or material part of the building had fallen. They had also answered that a part or parts of the building had fallen before the building had been destroyed by fire, but that such part or parts were "trivial and inconsiderable." What material difference, then, could it make whether, before or after such part or parts had fallen, the goods of plaintiff had been attacked by fire? In other words, the jury having already specifically found that the goods had been burned or were attacked by fire prior to the falling of a material or substantial part of the building from a cause other than fire, what, then, would be the necessity for further inquiry whether the goods had been burned or attacked either prior or subsequently to the falling of an inconsequential part or parts of the building? What substantial purpose could be accomplished by a further answer that the goods had been attacked after such part or parts had fallen? The failure of the jury to answer this question was harmless.

          There were some of the particular questions requested by the defendant which the court refused to submit to the jury, and it is claimed that the court committed prejudicial error by such refusal. We have examined these rejected questions, and have found that most of them involve propositions which are substantially covered by those which the court gave to the jury.

          The instructions of the court are further attacked, because, it is contended, the jury were told that it was the duty of the defendant in order to maintain its claim of exemption from liability under the "fallen building" clause to show that the falling from the earthquake or from a cause other than fire occurred before the fire had attacked either the building or the indemnified goods; whereas, the defendant was only required to show, in order to avoid the policy, that the building or a material part thereof had fallen prior to the fire attacking the goods. The court, in a number of its instructions, explained to the jury in very clear terms that the defendant must prevail if it were satisfactorily shown that the building or any material or substantial part thereof had fallen before the goods were attacked by the fire; and, while in some of the instructions the building and the goods were referred to in this connection in the disjunctive, from which phraseology, if taken alone, the jury might gather the impression that the court meant to say that if the building were attacked by fire prior to the falling of a material part thereof the defendant would not be exonerated from liability, the instructions, read as a whole or in their entirety as the charge of the court, could have left no other impression upon the minds of the jury than that it was necessary that the insured property should have been attacked prior to the falling before recovery upon the policy would be justified. The following may be given as an example of the instructions to which appellant objects in the respect mentioned: "If you believe and find from the evidence that the building described in said policy or a part thereof fell, and that by reason of the falling of said building, or a part thereof, said building or the contents thereof were placed in a condition or situation whereby said building or said contents were more easily subject to fire, then, and in that case, I instruct you that your verdict should be in favor of the defendant and against the plaintiffs." This instruction correctly states the law, and, when carefully scrutinized, is not inapplicable to the fact in this case— that is, the fact that the property insured were the goods and not the building. If the falling were of such a character as to subject the building the more readily to fire than if the falling had not occurred, it is very clear that the contents of the building would thus be exposed to a greater risk of destruction by fire, and, while perhaps the instruction could have been more clearly expressed, it could not, as stated, when considered with the other instructions, have produced any injury to the rights of the defendant.

          It is, lastly, urged that the court’s rulings upon certain questions involving the admissibility of certain testimony were prejudicially erroneous.

          The refusal of the court to allow the defendant to prove the effect of the earthquake upon other buildings located in the block in which the building containing the insured merchandise was situated was in our judgment perfectly proper. In order to have rendered such proof relevant and competent, it must first have been shown that there was a substantial similarity in the character of the construction of the other buildings to the one in which the insured property was situated and that the force of the earthquake was practically uniform in said block. No such preliminary showing was made, and there was therefore no foundation for the proffered but rejected proof. The proof of the destruction or falling of a frail building by a heavy gale of wind or an earthquake would not necessarily be proof that such wind or earthquake was the cause of the destruction of another building situated in the same block where another cause, like fire, had intervened and might have been the cause of the falling or the destruction of the latter structure. If, however, as suggested, proof were made that two buildings situated in very close proximity to each other were constructed in equally as substantial a manner in all respects, proof that one had fallen from the effect of a wind or an earthquake would doubtless be competent as tending to sustain the theory that the other had likewise fallen or been destroyed.

          There appears to have been no effort made to make such proof, and the courts cannot take judicial notice of the character of the other buildings in the block in which the building containing the insured goods was situated, nor can the courts take judicial notice of the fact, if it was a fact, that the earthquake on the morning of April 18, 1906, operated with uniform or approximately the same force over the area covered by the block. If evidence addressed to both these propositions could have been secured, counsel should have produced it, and thus have laid the foundation for the proof which they vainly sought to make.

          Nor did the court err in permitting the plaintiff to cross-examine the witness Mallory with reference to an affidavit be filed with the New Zealand Fire Insurance Company, in which he deposed that his office furniture and equipments, which were insured in that company, had been destroyed by fire on the morning of the 18th of April, 1906. Mallory’s office, it will be recalled, was situated over plaintiff’s store, and on direct examination he testified that he was at or near the building a half an hour after the quake, and that he saw no fire in Fountain’s store. The cross-examination, to which objection is made, was proper as showing that there had been previously made by him a statement inconsistent with his testimony. Code Civ.Proc. § 2052. Counsel’s specific objection, however, is that the witness’ testimony on direct was confined to the question whether there was a fire in Fountain’s store, and that he was not thus asked whether either the earthquake or fire had anything to do with the destruction of his property. But the fact that he was not questioned on his direct examination about the destruction of his own property or the manner in which it was destroyed rendered the cross-examination none the less pertinent and proper, since the necessary inference from his direct testimony was that there was no fire in the building in which his office and Fountain’s store were situated, and that consequently the plaintiff’s goods must have been exposed to greater risk by the fall of the building from the shock of earthquake than they otherwise would have been subjected to.

          There are some other specifications alleging error in the court’s rulings on the evidence, but they are not of sufficient importance, in our judgment, to require special attention.

          We have discovered no valid reason for interfering with the order of the court denying defendant’s motion for a new trial, and said order is therefore affirmed.

          We concur: CHIPMAN, P.J.; BURNETT, J.

          Opinion Supplementing Order Denying Petition for Rehearing.

          We deem it proper to notice a few of the propositions to which the petition for a rehearing of this cause directs special attention.

          We are satisfied with the conclusion at which we arrived with respect to the ruling of the court on the cross-examination of the witness Dr. Mallory, and to which we paid brief attention in the original opinion filed herein. The object and tendency of Dr. Mallory’s direct testimony, given in behalf of the defendant, was to show that neither the Fountain Building nor plaintiffs’ property was attacked by fire before a material part of the building had fallen as the result of the earthquake. That there could be no other object of the testimony is a proposition so obvious that no intelligent person could fail to readily discern its purpose, and it is, therefore, plain that the jury so understood its purpose, and to that extent at least its inevitable tendency was to achieve the purpose for which it was offered and received. We know of no rule of evidence which will permit one party to introduce proof which tends, however remotely, to establish the truth of his theory as to the ultimate fact, and thus furnish some ground upon which the jury may gather the impression that the truth is on his side, and then preclude the opposite party from a full cross-examination of the witness giving such testimony, not alone upon the matter to which he has specifically testified, but as to all relevant matters which may naturally be inferred therefrom.

          In other words, a party should be permitted to ask a witness upon cross-examination any question, an answer to which favorable to the cross-examiner would either tend to contradict or weaken his direct testimony or destroy the injurious impression naturally to be gathered from such testimony. Singular as it may appear, appellant seems to think that because Mallory testified solely that there was no fire in the Fountain Building half an hour after the earthquake, the cross-examination complained of was entirely erroneous and prejudicial. But manifestly the plain and natural inference from such testimony is that there was no fire in said building and that the goods of plaintiff could not consequently have been attacked by fire prior to the falling of the building or a substantial part thereof. Admittedly, the building did fall at some time, either from the fire or the earthquake.

          But it is declared that Mallory’s affidavit did not state that his office equipments, on which there was a policy issued by the New Zealand Fire Insurance Company, were destroyed by fire on "the morning of the 18th day of April, 1906, or at any other time." This contention only represents another case of "a drowning man grasping at a straw." The affidavit of Mallory is not in the record, and therefore we are not advised, except through his cross-examination, what statements his affidavit contained. But it is as clear as language can make any proposition from his cross-examination that his affidavit related to the destruction of his office furniture and other equipments by fire on the morning of the 18th day of April, 1906, and that counsel for plaintiffs, in conducting this cross-examination, referred to the fire of that morning. That counsel for the appellant must have so understood the cross-examination is conclusively shown by the fact that they nowhere at any time during the progress of said cross-examination, made any such objection as is urged here, nor offered as a reason for the general objection that the cross-questions of counsel for plaintiff did not constitute "proper cross-examination," the one urged here against the pertinency of respondents’ cross-examination of Mallory on the lines here considered. The only fire to which reference was made or could have been properly made in the cross-examination of Mallory was the fire which the jury found destroyed the goods of plaintiff, and there is not a single line in the record indicating in the remotest degree that the jury could have formed any impression that any other fire was referred to in Mallory’s affidavit, to which the cross-examination related, from the nature or form of the questions constituting such cross-examination.

          There are some of the rulings of the court excluding and allowing certain testimony to which we felt that there was no necessity for giving special attention in the main opinion. Counsel are of the opinion that we misapprehended the importance of these rulings and the significance of their objections thereto.

          Among these objections was one addressed to the ruling of the court refusing to allow defendant to show the condition of the whole block in which the Fountain Building was situated. In the original opinion it is held that testimony showing or tending to show that other buildings in the same block were thrown down by the force of the temblor was inadmissible in the absence of a preliminary showing that all the buildings were substantially the same kind of structures and that the force of the quake was practically or approximately uniform throughout said block. The principle governing this ruling is equally as applicable to the ruling excluding the proffered testimony of the "condition of the whole block." It does not necessarily follow that, because one building in a particular block might fall into a mass of ruins from the force of an earthquake shock, other buildings in the same block would likewise fall from the same cause. It is not an improbable proposition that all the buildings of the block, except one, might fall to the ground from the shock of an earthquake, and that that one would remain standing perfectly intact. The relevant effect of testimony of the general condition of the whole block upon a particular building in said block would of necessity depend upon the circumstance whether all the buildings, including the particular building, were built alike as to strength of foundation and superstructure, and the further proposition whether the force of the earthquake was uniform throughout such block. No such conditions were shown to exist in this case, and we think, therefore, that the court’s ruling excluding that testimony was eminently proper.

          It is further said in the petition that the trial court seriously erred in permitting the witness Muther to say, in response to his cross-examination, that "the Fountain Building was doomed to destruction by fire whether or not it had fallen by reason of the earthquake." Muther was the chief of the fire department of Santa Rosa at the time of the fire and earthquake of 1906. The claim is that the testimony thus elicited was "wholly irrelevant." Admitting but not deciding it to be so, still the answer could not have been prejudicial in view of the instructions of the court clearly explaining the circumstances which would absolve the defendant from liability under the policy. There was but one single important question of fact submitted to the determination of the jury, to wit: Did the fire attack the goods before or after a material or substantial part of the building fell? Upon this question the court, in its instructions, repeatedly told the jury that their verdict must be for defendant if it appeared from a preponderance of the evidence that the building or a substantial part thereof fell before the goods were attacked by the fire. To hold, therefore, that Muther’s statement to the effect that the building was doomed to destruction by fire, whether or not it had fallen by reason of the earthquake, was prejudicial, would be to impute to the members of the jury, without justification from the record, and, in the face of the well-understood presumption on that proposition, the densest ignorance or the most flagrant dishonesty.

          We find nothing in the petition for a rehearing which would justify a departure from the conclusion reached in the original opinion that it was a matter entirely with the jury to determine and decide whether the special defense of the defendant was sustained by a preponderance of the evidence.

          The power of reviewing courts to disturb verdicts of juries or findings of trial courts under our system, by which juries are made the exclusive judges of questions of fact and the courts of questions of law, is necessarily restricted to very narrow limits. Article 6, § 19, Const. Our law provides that juries are the exclusive judges, of the value and effect of evidence in all cases where the evidence is not, for reasons of convenience and public policy, declared by law to be conclusive proof of the fact in dispute. Section 2061, Code Civ.Proc. There may arise cases, it is true, where the court, for the sole purpose of illustrating the application of its instructions, may, with perfect propriety, state the testimony, but in such cases the court "must inform the jury that they are the exclusive judges of all questions of fact." Section 608, Code Civ.Proc. The appellate courts of this state may in effect set aside the verdict of a jury or the findings of a court where it can properly be said from the record that the evidence is either insufficient to sustain the verdict or findings or that there is no evidence whatsoever to support them.

          In such case manifestly a question of law is presented, and it is obviously only where an appellate court can declare from the record as a matter of law that the verdict or findings are not sufficiently supported or not supported at all that such court has any right, according to the plain terms of the Constitution, to interfere with a judgment or order for that reason. But it is beyond the constitutional province and right of an appellate court to declare that a judge, trying the questions of fact, or a jury should have given credit or a certain amount of weight to the testimony of certain witnesses in preference to other testimony upon which their conclusions must have been founded. Plainly, if appellate courts possessed such power, they could set at naught and render nugatory, according to their pleasure, the rules laid down by the Legislature for the determination and decision of questions of fact. Nor has a reviewing court the right to say that a jury committed error for which the judgment or order or both should be reversed because their verdict indicates or clearly shows that they attached no weight to certain testimony; for, while juries have no right to arbitrarily reject the testimony of a witness, no one will gainsay their right, as the exclusive judges of the value of testimony, to disbelieve any witness and reject his testimony as possessing no probative value, if they have sufficient reason for so regarding it. And who but themselves and perhaps the trial judge can say that they were without sufficient reason for rejecting as unworthy of belief the testimony of any witness or any number of witnesses?

          If the established rules governing the determination and decision of questions of fact are to be respected, then this proposition is impregnable: That where there is some competent evidence supporting a verdict of a jury or the findings of a court, and the testimony is not of that character that it may justly be said to be inherently improbable or unbelievable, a reviewing court plainly transcends its power and right under the Constitution when, in such a case, it reverses the judgment or the order upon the ground that the verdict or the findings are not supported by the evidence. A judge or jury must know, before reaching a just conclusion upon the facts, upon which side of the controversy the truth prevails, and whether witnesses tell the truth or an untruth is a question which no human can determine who has not seen and heard them give their testimony. And whether a fact has been or is sustained by a preponderance of the evidence is a question as far removed from the proper cognizance of an appellate tribunal as is the determination of all other questions of fact which it is the constitutional duty of juries to determine, except, as pointed out, in those cases where the testimony, on its face, bears the indubitable earmarks of improbability.

          To follow appellant’s suggestion and order a retrial of this cause upon the ground that the evidence does not support the verdict would, of course, be tantamount to holding that defendant’s special defense was supported by a preponderance of the evidence, and this would most certainly amount to a clear invasion of the right of trial by jury as guaranteed by our state Constitution.

          For the reasons stated in our original opinion and those added here, the petition for a rehearing is denied.

          We concur: CHIPMAN, P.J.; BURNETT, J.