This is an action to recover for fire loss under a policy of insurance. The policy contained a stipulation as follows:

The defense is that the fire was caused either directly or indirectly by earthquake. The property was situated on the north side of California street, between Montgomery and Kearny streets, in the city of San Francisco. The bill of exceptions recites as follows:

Burns testified that he noticed an. explosion take place in a building on the north side of Commercial street and west of the Subtreasury, which was occupied by the Union Shrimp Company, and that prior to this explosion he saw no evidence of any fire in any building on either side of Commercial street between Montgomery and Kearny.

The assignment of error is predicated upon the following excerpt' from the court’s charge to the jury:

The only question presented here is whether the court erred in giving this instruction. Immediately before reaching this point in the charge, the court instructed that :

Thus it appears that the court charged that, if the jury found that the fire on the Commercial street premises was caused by an explosion, they should find for the plaintiff; it being admitted that the fire communicated from those premises was the one which destroyed the plaintiff’s property. But it is contended by counsel for plaintiff that this instruction was so qualified as to neutralize its effect by what followed, which it is claimed advises the jury that, if the explosion was caused in any manner by a pre-existing earthquake fire, they must find for the, *761 defendant. In this relation it is insisted that the court should have told the jury that the explosion was of itself sufficient to stand as the proximate cause of the loss, and that the earthquake fire could not be the proximate cause, as it was too remote. This would have been the equivalent of directing a verdict for the plaintiff.

In determining the principle that should be applied, which depends upon what may be considered to be the proximate cause, it is essential that brief reference be made to some of the authorities. In Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469 , 24 L. Ed. 256 , the fire originated in the steamboat of the defendant, and it was alleged that it was negligently communicated to an elevator, also the property of the defendant, and from the elevator to the sawmill of plaintiff, while a strong wind was blowing from the elevator to the mill. It was there contended that the proximate cause of the burning of the mill was the fire from the elevator, and not from the steamboat, and therefore that the defendant was not liable. Answering the inquiry, the court said:

And again:

Insurance Company v. Boon, 95 U. S. 117 , 24 L. Ed. 395 , was a case where damage by fire arising by means of insurrection, riot, or civil commotion, or of any military or usurped power, was excepted from the policy. The property destroyed was situated in the city of Glasgow, Mo. During an engagement between the opposing forces, while the Civil War was in progress, the officer in charge directed the military stores contained in the city hall to be destroyed, which was done by setting them on fire. This fire spread along the line of the street, from building to building, to that of plaintiff, which it destroyed. It was concluded that the fire which caused the destruction of the plaintiff’s property took place, not merely in consequence ©f, but by means of, the rebel invasion and military or usurped power; the court saying further:

*762 Later, after reference to the Kellogg Case, supra, it is said:

Another case is The G. R. Booth, 171 U. S. 450 , 19 Sup. Ct. 9, 43 L. Ed. 234 . Whilfe a ship was being unloaded, a case of detonators exploded, opening a hole in her side through which water entered and damaged a part of her cargo. It was held that the cause of the damage was the explosion, and not the sea water that was admitted through the rent in the ship following the explosion; the court saying, after a review of the authorities: '

Another case, earlier than these, is Insurance Co. v. Tweed, 7 Wall. 44 , 19 L. Ed. 65 . Liability from explosion was excepted by the terms of the policy. Cotton contained in a warehouse was insured against damage by fire. An explosion which occurred in another warehouse, some distance from the one containing the cotton, shattered the walls of the latter. The explosion also caused a conflagration, which spread from the first building to another, and thence to the warehouse containing the cotton. It was held that the explosion was the proximate cause of the destruction of the cotton by fire, and therefore that the insurance company was not liable under the policy. In announcing the opinion of the court, Mr. Justice Miller says:

In commenting upon this case, Mr. Justice Strong says, in the Boon Case, supra:

_ There ctm scarcely be two opinions as to the result of these authorities. The cause which is efficient to produce the injury, though it may not be the one nearest in point of time or space, if continuous in its operation, passing from one effect to another without cessation until it has brought about the result, is the one to which the injury must be attributed. All intervening causes which are themselves the *763 outgrowth of the primary cause, are but incidental thereto, and are not regarded as efficient to produce the injury.

The court’s instructions were clearly within the principle. “If,” says the court, “you find that the fire was first communicated to those premises by and caught from an earthquake-caused fire, * * *

and that after the premises had ignited therefrom such fire came in contact with an explosive substance thereon, causing it to explode, and then continued to burn to and consume plaintiff's property, such a fire would not he within this provision of the policy a fire ensuing upon explosion, hut would still retain its character of an earthquake-caused fire.” There is nothing said in Insurance Co. v. Tweed, supra, in conflict with this view. The language of Mr. Justice Miller touching the “new cause” or “new force” should not be misunderstood. It simply means a new and independent cause or force within itself sufficient to produce the result, not a cause which proceeds from the primary and all-efficient cause hack of it. The distinguished jurist announced no new doctrine or principle from that enunciated in the cases previously referred to herein, nor does it seem that it was his purpose so to do. The principle thus interpreted has been applied by the Circuit Court of Appeals in the Seventh Circuit in a case of much analogy to the present. American Steam Boiler Ins. Co. v. Chicago Sugar Refining Co., 57 Fed. 294 , 6 C. C. A. 336 , 21 L. R. A. 572. The case was one where a small fire broke out in the insured building and continued for three days, though apparently extinguished each day. On the third day, efforts to put out the fire resulted in bringing it in contact with a cloud of starch dust, which ignited and exploded, demolishing the building, which then burned up. The insurance ivas against damage by explosion, excluding such as might result from fire. It was held that the insurance company was not liable, as the fire was the proximate cause of the loss, and the explosion ivas a consequence of the fire, marking a stage in its progress. Where the fire causes the explosion and the explosion accelerates the fire, and loss results, there can be no cavil as to the “primary and efficient cause,” the “superior or controlling agency” that brought on the loss. It would be the fire, and thus the fire would he the predominant or proximate cause. The explosion would be but an incident. On the other hand, if the explosion caused the fire, as in the Tweed Case, or if, as in the case of The G. R. Booth, it caused the sea water to enter the ship’s hold, and thus to damage the cargo, then the explosion would be the primary, predominating, and proximate cause of the loss, notwithstanding the fire or the water was an element or agency in producing the loss. It is when the one agency is acting independently of the other, and not put into operation hv the other, that it can be considered the predominant cause, and, unless so independent, it must needs have been set in action by the other, and that other then, as between the two agencies, would be the predominant or proximate cause of any damage that might ensue. The court’s instruction is in full accord with this idea, and is dearly unobjectionable. Nor is the Richmond Coal Co. v. Commercial Union Assur. Co., 169 Fed. 746 , 95 C. C. A. 178 , op *764 posed to this view. In that case the instructions seem to have taken no note of the intervening events, such as explosion, back-firing, and dynamiting, or that the course of the flames might have been' changed by wind storms or other natural causes, and it was said that, under the specific instructions rendered, the jury could not be controlled by, nor indeed give any consideration to, whether there were any new or intervening causes, such as explosion, back-firing, dynamiting, and the like, between the fires that may have been started by the earthquake, and that which caused the loss sued for. Not so here, because the trial court specifically told the jury that, if the fire on the premises was caused by and ensued upon an explosion of any kind, then their verdict should be for the plaintiff, because, if such fire “was started by and ensued upon an explosion, it would not be an earthquake-caused fire within the terms of the policy.”

It is further insisted, as counsel for plaintiff in error say:

Upon this predication, it is surmised that an explosion may cause a fire without itself being caused by fire. Very true. But the answer to all this is that the court did leave the question to the jury as to whether an explosion was an independent cause of the fire which destroyed plaintiff’s property, or whether it was the result of an earthquake-caused fire. The distinction, we think, was clearly made between the explosion as a controlling and predominating cause of the fire which destroyed plaintiff’s property, and the explosion as merely an incident to the fire which produced the loss, and the jury, we must assume, fully understood it.

From these considerations, the judgment of the Circuit Court must be affirmed.

For other cases seo same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes