(dissenting).
I am unable to agree with the result reached in the majority opinion. The policy exempts from its fire coverage “damages * * * caused by * * * propane gas.” Surely the plain meaning of this language is that if propane gas is the efficient cause of the damage the exemption applies. Thus, fire damage if caused by propane gas ignited by an incidental spark which in and of itself would not have damaged the truck is excluded from coverage for under such circumstances propane gas is the efficient cause of the damage.
The truck customarily carried large quantities of propane gas and also operated on propane gas. This the parties to the insurance contract knew. It was this extra hazard of damages from the propane gas, whether in the form of burning propane, exploding propane, or liquid propane if the propane was the real or efficient cause of those damages, that the parties must have had in mind when the exemption and the policy premium were agreed upon.
As to the pleadings, defendant’s answer quotes the exemption clause of the endorsement and then provides, “defendant further states that the loss, damage or destruction of plaintiff’s truck, as described in plaintiff’s petition, was caused by bottled gas within the meaning of said endorsement * * * and by the terms of said endorsement coverage was excluded for any loss or damage to plaintiff’s truck, as in said plaintiff’s petition alleged.” This squarely raised defendant’s contention of no liability by reason of the exception “caused * * * by propane gas”. Defendant has never waived this contention and it is not waived by defendant’s statement that the destruction of the truck was caused by propane gas.
Plaintiff did not attempt to stand on the pleadings, but proceeded to put on evidence as to the issue of fact raised by the pleadings ; namely, was the fire loss which plaintiff suffered caused by propane gas.
According to the evidence on this ultimate, determinative and disputed question of fact the first unusual condition noted was that the parked truck was enveloped in a cloud of white vapor gas which looked like *543fog and was seeping through a nearby hedge fence. No witness saw, knew or stated the origin or cause of the ignition of the gas. It was described as going up, as a big “poof”. The front tires on the truck were not damaged to any great extent.
The facts in evidence are such as to show clearly that the vehicle was not damaged by any antecedent, hostile or independent fire.
There was expert testimony that liquid propane must be turned into gas before it will ignite — after it becomes gas it is combustible and in this state a spark will ignite it.
There was evidence that this particular truck had been overhauled the day before the fire; that the tank did not leak; that the pop-off valve would not open unless a pressure of 250 pounds was developed and that even in the form of gas a spark or fire was required to ignite propane gas. Regardless of the opinion evidence that the tank did not leak and that without heat generated by fire the gas could not escape through the pop-off valve, the fact remains that the only witness to the incident testified that when he first saw the truck it was enveloped by a foggy cloud of propane gas and that at that time no fire or spark was observed or visible. Any opinion that there was no leak and inferentially that this could not happen, in the face of positive evidence that it did happen, is of doubtful credibility, contrary to the evidence, and certainly not determinative as a matter of law.
There was also evidence that on the day before when the truck was empty, a short circuit in the engine wiring had burned out the solenoid valve. This damaged part had been replaced. It is noteworthy that no fire resulted in the empty truck from that short circuit or from the spark, if any there was therefrom. Plaintiff seemingly theorizes that the same sort of short circuit might have ignited the gas and caused the fire. Even if such speculation is indulged was the damage caused by propane gas or by an independent hostile fire? Or, differently stated Tyould such an incidental spark in and of itself in the absence of any propane gas have caused any damage to the truck? If not, and if it ignited the propane gas which in turn destroyed the truck then propane gas was the efficient cause of the damage, and the loss was within the terms of the exemption clause.
If one would speculate, since this white gas was spread around the truck and was continuing to spread away from it for some distance, the gas might have become ignited from someone smoking a cigarette “in the office” and the resulting burning propane gas have destroyed the truck. Clearly, propane gas would be the efficient cause of the damage to the truck, and exempted from the coverage of the policy.
As stated, the only witness to the complete occurrence testified in effect that he first saw only the vapor. He did not then nor did anyone else at that time see any fire. It was shortly thereafter that the gas went up with a poof. This is negative, but acceptable, evidence that there was no antecedent, hostile or independent fire. Taken in connection with the other circumstances it is evidence from which a jury could find that the damage to the truck was caused by propane gas.
Only if the evidence is so overwhelming one way that reasonable minds cannot differ, will a court, trial or appellate, enter a judgment as a matter of law. In the explosion cases where similar questions and on indefinite facts are presented, the issue has many times been ruled one for the trier of the facts. Bennett v. National Union Fire Ins. Co., 230 Mo.App. 939, 80 S.W.2d 914; Bilsky et al. v. Sun Ins. Office, Limited, of London, England, 231 Mo.App. 1072, 84 S.W.2d 171. The Supreme Court of the United States in Insurance Company v. Express Co., 95 U.S. 227, 24 L.Ed. 428, went so far as to direct a verdict and enter judgment for the defendant. In this case too, the Supreme Court of the United States held specifically that the phrases “caused by” and “arising from” are synonymous.
*544In the final analysis, it is immaterial that plaintiff is the one who adduced all the testimony which included the observations of -the only witness to the entire incident. That evidence was before the jury and neither it nor the pleadings were such as to justify a directed verdict for plaintiff.
In my opinion, shared by Judge MAUGHMER, C., the utmost to which plaintiff is entitled is a submission to the jury, and the trial court committed reversible error in directing a verdict for plaintiff. The judgment should be reversed and the cause remanded.