DISSENTING OPINION ON MOTION EOR REHEARING.
Mr. Justice HAWKIHSdelivered the following dissenting opinion:
Plaintiff in error complains that the charge to the jury assumed, as a matter of law, that Diamond was under the affirmative duty of notifying Duncan of the insolvency of Traders Insurance Co., or of procuring for Duncan new and solvent insurance. I find no merit in that contention, inasmuch as “renew” in the charge was apparently used by the trial court and understood by the jury as including keeping up the insurance, in a solvent company. And it seems to have been so treated by the Court of Civil Appeals.
However, the charge of the court on the measure of damages was clearly erroneous in permitting recovery of the full amount of insurance which, under the jury’s finding, Diamond should have had kept in force for Duncan. From that sum should have been deducted the amount of the premiums which such substitute insurance would have cost Duncan. His recoverable. damages, if any, should be merely compensatory.
The amount of such premiums was not established by the evidence; consequently, the amount which Duncan was entitled to recover was not established; wherefore plaintiff failed to make out his case. Logically, then, defendant’s requested special charge Ho. 1, directing a verdict for defendant, should have been given. This point was duly presented in the motion for new trial, and in the assignments of error filed in the trial court, and in appellant’s' brief in the Court of Civil Appeals, at p. 54, et seq., under “Second Assignment of Error” (Ho. 5; in Tr.), and four distinct propositions thereunder, and was also duly presented to this court. The establishment of the proper measure of damages being an essential and affirmative part of Duncan’s case, there rested upon Diamond no duty of pleading or proving what the cost of the premium for such substitute insurance would have been. I do not consider the cost thereof a matter so peculiarly within the knowledge of Diamond as to constitute an exception to the general rule, nor as bringing this case within the rule which this court announced in Right-of-Way Oil Co. v. Gladys City Oil, Gas & Mf’g Co., 106 Texas, 94, 157 S. W., 736, 51 L. R. A. (N. S.), 268, in which this court said:
“If, however, the person who produced the oil acted in good faith, he would be entitled to have deducted the cost of bringing it to the surface and to the market. The contention of plaintiff in error is in effect that the owner must concede the good faith of the trespasser and prove that which is known only to his adversary, the cost of producing the oil.” (Italics mine.)
*263Emphasis was there laid on the fact that the cost of producing the oil was known, to the trespasser only.
Here, it seems to me, it would have been easy for the plaintiff to have proved what the substitute insurance would have cost Duncan.
My present strong conviction is that the rule announced in the cited case ought not -to be applied to the facts of this case—although I confess that, since this motion was filed, I have been unable to find opportunity for going thoroughly into that question. I think that, at least, the motion for a rehearing should be granted.