concurring in part and dissenting in part: I concur in that portion of the majority opinion which grants Rexroad a new trial on the issues of damages only, and in reversing the pre-trial *358order restricting Rexroad from showing the full amount of the judgment and costs in the Anderson case, and in striking the issue of insurance from the answer of the Kansas Power & Light Company (KPL). I dissent, however, from that portion of the majority opinion which denies Rexroad the right to recover attorneys’ fees in the amount of $3,317.46 expended by him in defending the Anderson suit. I shall briefly state my reasons.
Where, as here, negligence is established it imposes liability for all the injurious consequences that flow therefrom, whatever they are, until the intervention of some diverting force that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law’s notice. (Sutherland on Damages, Vol. 1, Fourth Edition, § 16, p. 53.) On the question of what is negligence, it is material to consider what a prudent man might reasonably have anticipated, but when negligence is once established, as here, that consideration is entirely immaterial on the question of how far that negligence imposes liability. Generally speaking, the law defines the scope of responsibility for consequences which limit the recovery of damages to those which naturally and proximately result from the act complained of; or, in other words, to those consequences of which the act complained of is the natural and proximate cause. It is well settled in this jurisdiction that one who commits a tortuous act is liable for the injury and loss that are the natural and probable result of his wrongful act. (Hoge v. Norton, 22 Kan. 374; Enlow v. Hawkins, 71 Kan. 633, 81 Pac. 189; Bank v. Robbins, 71 Kan. 748, 81 Pac. 487, 114 Am. St. 523; Billups v. American Surety Co., 173 Kan. 646, 251 P. 2d 237; Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46; Ablah v. Eyman, 188 Kan. 665, 676, 365 P. 2d 181, 90 A. L. R. 2d 766.)
As a result of KPL’s negligent act, two parties sustained damage: Rexroad’s bulldozer was destroyed and Anderson’s home was burned to the ground and the contents were destroyed by the same fire. Previous to the fire, Rexroad, as a general contractor, entered into a written contract with the city of Assaria to make street improvements and to be liable for all damages to buildings or other property, and at his own expense to repair, replace or reconstruct such property or otherwise make amicable settlement for such damage. As a result of that third party beneficiary contract, Anderson could pursue two remedies: sue KPL for its negligence in destroying the home and contents, or sue Rexroad on its contract with the city. *359Anderson chose the less expensive and “more sure” lawsuit and sued Rexroad on his third party beneficiary contract with the city. That suit was vigorously defended by Rexroad, which defense inured to the benefit of the tort-feasor, KPL. Had Anderson sued KPL for its negligence in destroying her home rather than Rexroad, KPL would have had to defend the suit and would have incurred attorneys’ fees and expenses in making its defense. As a result of Anderson’s suit against Rexroad, he was required to pay the full amount of the judgment recovered by Anderson and costs of the action together with attorneys’ fees incurred in defending the suit. The damages sought to be recovered in the case at bar are clearly compensatory and in my judgment are the natural and probable consequences flowing from KPL’s negligent act. In Sutherland on Damages, supra, § 58, pp. 224,225, the rule is stated:
“If one’s property is taken, injured or put in jeopardy by another’s neglect of duty imposed by contract or by his wrongful act any necessary expense incurred for its recovery, repair or protection is an element of the injury. It is often the legal duty of the injured party to incur such expense to prevent or limit the damages; and if it is judicious and made in good faith it is recoverable though abortive.”
Anderson’s suit against Rexroad was based on contract. His negligence, which the jury found did not exist, had nothing to do with that case. However, he was obliged to defend that action to prevent or limit the damage, and he necessarily incurred attorneys’ fees in doing so. No claim is made that the fees were not judicious or incurred in good faith, or that they were excessive. Under the rule above stated, they were necessary expenses incurred by Rexroad and were an element of the injury. They are not remote or uncertain but are the natural or probable result of KPL’s tortuous act. This item of damage was alleged in the supplemental petition and denied. It is one of the points specified in the cross-appeal. Accordingly, I would reverse the order of the district court disallowing Rexroad’s claim for attorneys’ fees necessarily incurred in defending the Anderson case. (Bank v. Williams, 62 Kan. 431, 63 Pac. 744; Bank v. Robbins, 71 Kan. 748, 81 Pac. 487, 114 Am. St. 523; Parish v. Brokerage Co., 92 Kan. 286, 289, 140 Pac. 835, Annotated Cases, 1916 B, 981.)