(dissenting). In my opinion, the instructions which were given to the- jury and to which exceptions were taken present a clear, logical, and correct exposition of the law upon the issues in the case. Each sentence and each proposition contained in it will stand the test of the most critical scrutiny. Indeed, I do not understand that the majority of this court hold otherwise. The error in the instructions which in their opinion requires the reversal of the judgment does not consist in the things that were said, but in the things that were left unsaid. It is held that the instructions were fatally defective for the reason that the court omitted to give consideration to the question whether or not the fires which were started by the earthquake extended “at once” to the insured property, and to the question whether there were new and intervening causes between those *753fires and the burning of that property, such as explosion, back-firing, dynamiting, and the course or force of the wind.
Considering, first, the suggestion that consideration should have been given to intervening causes, I inquire what should have been said and why should anything have been said on that subject? We have no evidence that any such causes intervened to disturb the causal relation between the fires which were started and the destruction of the insured property. In the Tweed Case the court said that the mere accidental circumstance that the wind was blowing in a direction to favor the progress of the fire toward the insured warehouse could not be considered a new cause. There is no suggestion anywhere in the record in this case that there was back-firing or dynamiting or that there was a wind. There was no request for an instruction on those subjects, nor was any specific exception taken to the charge for want of such instruction. None of the evidence in the case is before us. In the bill of exceptions it is recited as follows:
“Evidence was then introduced by defendant which was sufficient to justify the verdict in every aspect of the instructions given by the court as herein set forth, and such instructions were in all respects pertinent to the evidence.”
When instructions to a jury are challenged in an appellate court, that court is bound to assume, in the absence of evidence to the contrary, that the charge was appropriate to the testimony in the case. This court has so held in accord with the general rule. Yates v. United States, 90 Fed. 57, 32 C. C. A. 507; Southern Pacific Co. v. Arnett, 111 Fed. 849, 50 C. C. A. 17. In Carpenter v. Ewing, 76 Cal. 488, 18 Pac. 432, the Supreme Court of California held that where none of the evidence is brought up in the record, and there is nothing to show its purport or tendency, it will be presumed that it was such as to justify the instructions. The court said:
“The settled rule Is that, where the record contains no part of the evidence, the judgment will not be disturbed on account of instructions alleged to be erroneous, unless it appears that such instructions would have been erroneous under every conceivable state of facts.”
That doctrine has been reaffirmed in several later decisions of that court. So far, therefore, as our power to deal with these instructions is concerned, the case is precisely the same that it would be if we had before us in a bill of exceptions positive and uncontradicted evidence that there was no explosion and no dynamiting or back-firing between the points where the various fires referred to in the instructions were located and the insured property, and that from the moment when those fires were started until the time when the loss insured against occurred there was no unusual wind and no new intervening cause to affect the uninterrupted continuous progress of the fires. Will it be contended that under such a state of facts the instructions which were given in this case would have been inappropriate ?
Again, I inquire why should the court below have taken into consideration the question whether the fires proceeded “at once” toward the insured property? If it is meant that the defendant in error could not avail itself of the exception against liability for loss from fires started by earthquake unless such fires produced immediate destruc*754tion of the insured property, then the plaintiff in error was entitled to a peremptory instruction in its favor, for it is obvious'that a fire which proceeded by burning uninterruptedly the intervening blocks in its course could not “at once” burn the insured property. It is true that in the Scheffer Case the court, in referring to the ground of the decision in the Tweed Case, said that explosion had been held to be the proximate cause of the loss because the fire extended “at once” from the warehouse where the explosion occurred, and because there was no new or intervening cause between the explosion and the burning of the insured property, and that, if a new force or power had intervened sufficient to stand of itself as the cause of the misfortune, the other must be considered as too remote. What is there in the present case to show that one or more of the fires which are referred to in the instructions as having been started by earthquake did not proceed at once to burn the intervening property until it reachéd the insured property, and what evidence is there of the intervention of any new power or force sufficient of itself to stand as the cause of the misfortune? The court below instructed the jury in entire harmony with the doctrine of the Tweed Case as it is explained in the Scheffer Case, and charged them that if they found that the fires were caused by earthquake, “and that such fire or fires thereafter spread to and burned uninterruptedly from building to building, or from block to block, until they reached and destroyed the property insured, that then the insurer was not liable.”
In the opinion of the majority of the court attention is directed to a paragraph of the instructions, which is quoted, on the relation of explosion to. the question of liability under the policy. The relevancy of that instruction to the assignment of errors which are relied upon here is not apparent, for no exception was taken to it. It is true that error is assigned to the refusal of the court to give a certain instruction requested by the plaintiff in error on the subject of explosion, but in that refusal it would seem that the majority of this court have found no error. In that conclusion, in view of the terms of the policy, I concur.