I dissent. I think the conclusion by the jury that the fire attacked the goods before a part of the building had fallen is not supported by sufficient evidence. To hold that the testimony of Duncan, Bailey, and Faught sustains such a finding, is to ignore the rule that the plaintiff's case must be sustained by a preponderance of evidence. All of these men saw the fire some minutes after a material portion of the building had fallen. Their stories comport as well with the theory that combustion followed the greatest and most destructive movement of the earthquake as with the deduction that the first vibration broke the electric light wire and so caused the fire. Indeed, according to the doctrine of probabilities it is very likely that the same force which destroyed the upper walls of the building broke the wire and liberated its current. Whether a mass of loosened brick can leave a wall sooner than a vagrant electric current can set fire to a stock of goods is a question too difficult for satisfactory solution even by all the combined wisdom of the members of a trial jury, and unless we can ignore the necessity of plaintiff's establishing his case by preponderance of evidence, I cannot see how the proof sustained the jury's finding. I think it clear that the destruction of a portion of the building having been shown, the burden was on the plaintiff to prove the occurrence of the fire in some manner other than from any of the accepted risks. (Beach on Insurance, sec. *Page 774 1329; Pelican Insurance Co. v. Troy Co-operative Association, 77 Tex. 225, [13 S.W. 980]; Phœnix Ins. Co. v. Boren, 83 Tex. 97, [18 S.W. 484].) In California this rule with reference to the burden of proof has, I think, long been established, although at least one learned judge has cited one of our leading cases as announcing the opposite doctrine. In Western Assurance Co. v.Mohlman Co., 83 Fed. 813, [28 C.C.A. 157], the court refers toBlasingame v. Home Ins. Co., 75 Cal. 635, [17 P. 925], as authority for the rule that the defendant must by a preponderance of evidence establish the performance on plaintiff's part of prohibited acts or show in like manner that the loss occurred from an accepted risk. An examination of that case, however, shows that a rule of pleading and not of evidence was announced. Broadly speaking, the court in the Blasingame case held that in an action on a policy of insurance a condition precedent may be generally pleaded under the provisions of section 457 of the Code of Civil Procedure, and that the complaint need not contain averments intended for the purpose of meeting or cutting off a defense. Yet in that case the learned commissioner wrote: "One seeking to recover on an insurance policy must aver the loss and show that it occurred by reason of a peril insured against." This doctrine was asserted with even greater emphasis in the case ofRankin v. Amazon Ins. Co., 89 Cal. 203, [23 Am. St. Rep. 460, 26 P. 872], in which the policy under consideration provided that the plaintiff should keep a watchman on the premises day and night when the mill was not in operation, this court holding that, after the defendant had shown that the mill was idle, the burden of proving compliance with the warranty rested upon plaintiffs. So, in this case, it seems to me, the fall of a material part of the building being shown, it is for the plaintiff to prove by a preponderance of the evidence that the fire was burning his property while the building was intact. This, I think, he utterly failed to do. I am aware that the opposite rule is adopted in some jurisdictions and the burden of proof held to be on the defendant (see Trans-Atlantic Fire Ins.Co. v. Bamberger, (Ky.) 11 S.W. 595; Western Assurance Co. v.Mohlman Co., 83 Fed. 813, [28 C.C.A. 157], but I think the other, which I believe has been the California rule, is based upon sounder reasoning. The order should be reversed. *Page 775