(dissenting): The writer is unable to concur in the views of the majority of the court as expressed in the foregoing opinion. This court has reversed a case where the ownership of two steers worth sixty-three dollars was involved because of error in permitting a witness to testify directly to the ownership, that being the ultimate fact to be determined by the jury. (Hite v. Stimmell, 45 Kan. 469, 25 Pac. 852.) In that case some other incompetent testimony was admitted, which was, however, of little consequence; and, it is only fair to state, it does not appear in that case that the witness testified further to the facts and circumstances upon which his conclusion was based.
In the present case the principal fact to be proved was that there was a fire. If there was, plaintiff was entitled to recover. If not, it could not recover. Over the objection of defendant McAfee was permitted to testify that a fire occurred there in the wool. The theory of the majority opinion seems to be that by giving in detail in his further examination the facts and circumstances upon which his conclusion was based the error was cured. In some cases, doubtless, the *52error of such testimony is thus rendered immaterial; but one conclusion cannot be bolstered up by several other conclusions and opinions. Testifying further, this same witness, asked to describe the condition in which he found the wool, sáid: “The wool was damáged by heat and fire to a great extent.” The court denied a motion to strike out this answer as a conclusion of the witness, to which defendant saved exceptions; but in the assignment of errors the point is overlooked. In another answer he repeated the same in substance. Again, he said that some of the strings around the fleeces were “burned” so that they broke in handling. It was woolen twine, and this was a mere conclusion. Again, on recross-examination, on being asked if there was a fire in this building he said:
“Yes, sir, there was fire in the building.
“Ques. Where? Ans. In this wool.
“Q. Whatever was done to this wool was done by water? A. It was inundated by water, and there being a large amount of wool together, it got afire.”
Further, on recross-examination, without being asked, he said spontaneous combustion had taken place. If upon examination of all his testimony it could be said that he detailed any circumstance or fact which to an unprejudiced mind showed the presence of any fire in the wool, it might be that the error of permitting this testimony was rendered immaterial; but a careful review of his testimony shows that the incompetent statement objected to was not explained by such facts but merely reenforced by repeated statements of conclusions fully as incompetent. What effect these statements may have had upon the jury is not known; but, from their finding that there was a fire upon what appears to the writer no evidence whatever, it is probable that these statements were accepted as some evidence.
The court in an ordinary case well might refuse to define “fire,” because the word is so common and well understood; but this was no ordinary fire. It was, if *53any existed, a most extraordinary one; and, even if plaintiff’s theory is true, that spontaneoús combustion took place, it was not the kind of fire with which everybody is supposed to be familiar. Moreover, the court, while refusing to define the word “fire,” did use the qualifying adjective “smoldering” when there was no evidence to warrant it. The language of the instruction is:
“It would make no difference, if there was fire, whether it was in the form of flame or merely smoldering, but there must be in fact the presence of fire.”
The defendant did not rest its defense on the absence of flame but on the absence of “luminosity.” There was an entire lack of any testimony of luminosity, which term includes either flame or a kindled heat without flame. Every definition of fire found in the text-books and dictionaries includes both heat and light — not necessarily flame, but luminosity. Webster’s Unabridged Dictionary defines “fire” as “the evolution of light and heat in the combustion of bodies; combustion, state of ignition.” “Smoldering” the same authority gives as “being in a state of suppressed activity; quiet but not dead.” There was no evidence of any smoldering fire in this wool. No man ever knew of a smoldering fire which, if he digged into it far enough, would fail to disclose the presence of visible heat or light. Every one has seen a pile of smoldering weeds. Often there is no evidence of fire until it is reached by digging into the mass; but, if it is in a smoldering state, the visible fire, with or without flame, can be found easily. If it cannot" be found it is because it is not there. So these men with the pitchforks, turning this wool for nine days and nights in heroic efforts to save it from burning, ai the witness McAfee testified, must have discovered it or it was not to be found, except in his conclusions'. ’■
Following Webster as authority, and in view of the extraordinary kind of fire alleged to have occurred in this wool, the court should have defined “fire” as used *54in the policy as meaning visible heat or light, and said nothing about a smoldering fire. This belief is strengthened by the testimony of McAfee, who said that in the word “fire” as used by him he did not understand that one of the elements necessary is visible heat or light, and by the further fact that it was not contended by plaintiff that the fire was smoldering.
For the same reasons the court should have instructed the jury that “no degree of heat short of ignition producing an actual burning is covered by the policy.” In Gibbons v. German Ins. & Savings Inst., 30 Ill. App. 263, 265, Justice Gary, with over thirty years’ experience upon the bench, speaking for the court, said:
“Fire and heat are not one, but cause and effect; and damage by heat is not insured against in terms, and is covered by the policy only where the misplaced fire causes it. . . . The common understanding of the word fire would never include heat, short of the degree of ignition.”
(See, also, Kerr, Ins. 374; Clem. Fire Ins. as a Valid Con. 87; Austin v. Drew, 4 Camp. 360; 6 Taunt. 436.)
The court, in attempting to define the issues, instructed the jury as follows:
“The plaintiff claims that the wool covered by the policy in suit was inundated by the flood, and after the water subsided spontaneous combustion occurred, and that the wool was damaged by such spontaneous combustion.”
This stated properly the only issue of plaintiff. The court then said:
“The defendant company contends that there can be no spontaneous combustion in a body or mass of Wool, and that fire could not be produced in that way, and testimony has been offered bearing upon that question.”
A deal of testimony, in fact, was offered upon this question; but it was a contention not at all essential *55to defendant’s claim, nor a material issue as shown by the pleadings and evidence. Defendant had a right to contend that spontaneous combustion in wool is an impossibility, but was not bound by a failure to establish this theory. The jury might have credited the testimony of the Kansas chemists as against those from Chicago, and, finding against defendant upon this theory, have been misled by this instruction, when the real defense was that no fire existed. The other instructions may possibly have rendered the foregoing immaterial. Where, however, the trial court attempts to define the issues, care should be observed not to marshal against a material issue on one side an immaterial and non-essential contention on the other.
The question whether there was any evidence of the existence of fire which caused the damage to the wool rests in this case upon the final analysis of the evidence of McAfee, for no other witness on either side testified about any fire. It is singular that if a fire occurred under such peculiar circumstances, destroying over $5000 worth of wool, no other witness was produced to testify to the facts showing the existence of a fire, when that was the sole question at issue. There were several others present all the time that McAfee was there — Holman, president of the woolen-mill company, his brother, and the employees (the five men with the pitchforks). All these, or some of them, must have known all that McAfee knew about the fire, and have seen all that he saw. Yet none is sworn to testify to the circumstances which it is claimed were evidences of the fire. In construing his testimony, all that he swore to must be considered except his statements of mere conclusions. It is only the legal evidence, and such favorable inferences as might be drawn therefrom, that can be considered. Eliminating his conclusions as incompetent, we have his own statement on cross-examination that there was no fire in the building; that the floors and other woodwork showed no sign or evidence of having been *56heated or burned. He testified several times that he did not see any fire in the wool, nor in the building. When Mr. Blakely came and examined the wool, Mc-Afee said, according to his own testimony:
“ ‘Mr. Blakely, we cannot save this wool. We have a policy written by you covering this insurance on this wool, and I turn it over to you. You can do with it what you please.’ Mr. Blakely says, ‘I have no way to take care of it. You hire all the men you can and put in here and save this wool if possible.’ . . . In pursuance of his direction, I kept on and done my best to save the wool. I hired all the men I thought we could use and put them in there and watched them closely, except at night, when they were working by themselves. . . . I called four or five men. . . . I engaged them to go into this wool and work all night to keep it from burning up. We then undertook to handle it with our hands and could n’t do it.”
He further testified that they then sent for pitchforks and kept turning the wool over for eight or nine days and nights; that they had “a double set of men to work with this wool to keep it from all burning and also burning the building;” that “of course, the wool was wet;” that “we put a stove in the warehouse to dry the wool. We kept the stove in there and the heat from this stove probably three weeks.” Describing the condition of the wool, he testified:
“Take a fleece of wool that would weigh five or six pounds, . . . and if that fleece was dried out it would probably weigh less than before the fire or flood.”
From this it appears that he claimed in fact a damage by heating which he construed as the same thing as fire because the fiber was destroyed and the wool “rotten.”
This court must take judicial notice of the effect on wool of its remaining for a considerable time under water, because the effect is within the range of common knowledge, and, besides, not only do text-books and works on chemistry state the effect, but we have *57the opinion in the record of six experts, all agreeing— McClement, Stiles, Bach, Gudeman, Dreyfus, and Lovewell. Emanuel Bach, a wool merchant of thirty years’ experience, testified that wool left for a time in the wet ferments and rots and the fiber is injured and destroyed, and that the identical effect shown in this wool takes place. Jacob Dreyfus, with thirty years’ experience as a wool merchant, and Lawrence G. Stiles, with twenty years’ experience, testified to the same effect. The latter had seen many millions of pounds of wool affected in the same way by the action of water without heat sufficient to produce fire.
The facts disclosed by the testimony seem to justify the conclusion that the spontaneous-combustion theory was an afterthought. Blakely, the insurance agent, was informed by Holman on the street that they had suffered a loss to wool by water, and went over probably the day after the warehouse was opened. No claim of ignition was made to him, or of anything but damage by heat caused by water. .Blakely expressed regret personally that nothing showed any evidence of fire, as the term is usually employed. Milton Welsh and another adjuster, with Blakely, several days later examined the wool in the presence of Holman and McAfee. Mr. Welsh testified that no claim was made at that time of ignition or fire, but the talk was that the wool had been injured by heat caused by water; that the wool even then was wet, warm, and .steaming, though it had been scattered out for several days. Two letters were written him by Holman afterward and referred to the loss as damage to wool by water.
But there were others who were present during the time so much effort was being made to prevent the fire from consuming all the wool. Two employees of the company, both wool men of many years’ experience, testified that they saw the wool while it was being turned and saw no trace whatever of fire, and upon examination found no “char” such as is left on wool *58when a flame is held against it and then taken away. Neither detected any odor of burned wool.
This testimony is not referred to for the purpose of weighing the evidence but of demonstrating that, viewed in the light of facts which courts must know, the testimony of plaintiff has no weight, and does not even tend to show the existence of any fire.
We are asked to believe that there was “some evidence” that spontaneous combustion occurred in this wool while it was dripping wet, three days after it had been covered with eight or nine feet of water, where the evidence of plaintiff also shows that the heat was not sufficient to blister the hand when held in the wool. Boiling water would do that, and wool will not ignite until subjected to much greater heat, according to the testimony of experts and scientific books of authority. But the most incredible thing is that this mass of wool could have been on fire without the discovery by some one digging into it of “visible heat or light” — not necessarily a flame, but something luminous.
It will not do to say that this court is not concerned as to when the fire occurred, and that it might have been on fire and the fire gone out before the witnesses arrived on the scene, because McAfee’s contention, as shown by his entire testimony, is that the evidences of fire which he claims to have seen showed that the fire was still in progress. The heat, the smell, the smoke, were there, and in order to keep the wool from “burning up” it was necessary to employ men to keep turning it over for nine days and nights. Then, in further effort to extinguish it, a fire was started in the stove and kept going for three weeks to dry the wool.
The words “spontaneous combustion” are always used with reference to the origin of fire. The Century Dictionary defines spontaneous combustion as “the ignition of a body by the internal development of heat without the action of an external agent.” There was *59not the slightest evidence of ignition in all the plaintiff’s testimony, giving to it every favorable inference. If spontaneous or any other kind of combustion took place, it could only mean that the mass of wool “took fire,” and we all know what would have been the result if the wool had taken fire. It would have been destroyed, and the building with it, .unless extinguished; and, if reasonable men had discovered it to be on fire, instead of sending for men with pitchforks they would have sent for the fire department, in an effort to save the building at least.
No part of this dissent is based upon the theory that spontaneous combustion is impossible in wool. On the contrary, even if it be conceded that it is not only possible but highly probable, still there is an entire absence of any evidence that fire of any kind occurred. There was a heating of the wool, and injury thereby, but no ignition, no burning, no actual fire, as the word is commonly understood or within the meaning of the policy. It was essential to plaintiff’s right of recovery to prove that actual fire occurred. Aside from statements of conclusions, the testimony of the only witness showed that in fact there was only a heating, and no actual fire.
Where the trial court has refused to take cognizance of matters within the judicial knowledge of the court the rule is stated as follows:
“It is clear that, upon a proper record, the appellate court should reverse a judgment where a principle or rule of law, judicially known to the court, requires it to do so, even though the trial court may not have taken judicial notice. . . . Even though it may not be authorized to weigh evidence and pass upon the facts, it may, and should, so use its judicial knowledge as to bring about justice. Thus, there are often undisputed physical facts clearly shown in evidence, and by applying to them a well-known law of nature, of mathematics, or the like, it is demonstrated beyond controversy that the verdict or finding is based upon what is untrue and cannot be true. In such cases it is very generally held that the appellate court *60should take judicial notice of the law of nature or mathematics or quality of matter, or whatever it may be that rules the case, and apply it as the trial court should have done.” (1 Ell. Ev. § 39.)
' Where all the evidence most favorable to plaintiff leads to a result so much at variance with what we know from general information and common sense, and puts such a strain upon the credulity of the court, the judgment should be reversed.
The writer dissents from paragraph 1 of the syllabus as applied to the facts in the present case, and to all of paragraph 6 except the first clause therein, and to paragraph 7.
He is authorized to say that Mr. Justice Smith concurs in this dissent.