Thе Linwood Elevator filed suit against Glen Falls Insurance Company in the Circuit Court of Yazoo County, Mississippi, for an alleged fire loss, said to have been covered by an insurance policy issued by the appellant in favor of the appellee. From an adverse judgment, the defendant Glen Falls Insurance Company of Glen Falls, New York, has appealed its case to this Court.
The Linwood Elevator is a public grain storage elevator located near Yazoo City, Mississippi, and consists of six large tanks eighteen feet in diameter, and sixty-six feet high. Each tank has a maximum capacity of 14,150 bushels of grain. The tanks are of concrete construction and each tank can be entered only through a small manhole in the top and a small manhole, approximately twenty inches square, about five feet above ground level. On October 9, 1956, Linwood Elevator obtained a fi're insurance policy from a local insurance agent, Stewart Yaughn of Livingston Insurance Agency. The policy was renewed on October 6, 1958, and the policy on which suit is brought was in force on January 21, 1959, when it is alleged that appellee had a fire in Tank No. 5. The policy insured the Linwood Elevator ‘ ‘ against all DIRECT LOSS BY FIRE * "toa ‘stock grain’ * * * ‘ on premises of Linwood Elevator Company, situated on the N/S Benton-Yaughn Road about 17 miles east of Yazoo City * *
There is a vent in the bottom of the tanks through which the grain is flowed by gravity out into a conveyor. The grain is put into the tanks by means of a screw conveyor through the top.
The grain in Tank No. 5 was soybeans, and had been received by the Elevator from October 22, 1958, through Oct. 29, 1958. There were ninety-four loads consisting of 12,192.52 bushels of soybeans and 866 bushels of foreign matter, or an average of 6.52% of the content of *409 the tank. This foreign matter consisted of stalks, stems, leaves, insects, weeds and particles of broken grain. The Elevator had a method of cooling the contents of the tanks by distributing air into the- tanks, through pipes, and by air fans. The iron pipes extend out of the bottom of each tank, and are called “laterals.” It is possible to determine when the grain is heating in spots by physically feeling these.“laterals” as the air is pumped into and through the grain. On the 21st dаy of January 1959, an odor, like the odor smelled around oil mills, was detected. Three of the “laterals” were discovered to be hot, whereupon the cooling system was continuously run in an effort to cool the soybeans. The manager then attempted to empty Tank No. 3 so that the beans in Tank No. 5 could be moved into Tank No. 3. After 1,091.48 bushels of beans had been put upon the top of the beans in Tank No. 5 from Tank No. 3, it was then determined that it would be impossible to empty Tank No. 3. The manager then began to move corn out of Tank No. 1 by selling it, and this tank was emptied and ready for the beans from Tank No. 5 on the 26th day of Januuary 1959. The beans from Tank No. 5 were then flowed directly into Tank No. 1. In a short time brown beans began to comе out of Tank No. 5, and then the burned and damaged beans were discovered. At this point, the manager of the Elevator diverted the flow of beans from Tank No. 5 into large trucks, until the flow was choked up and stopped, and finally the manhole on the side of the elevator was opened, and burned and damaged beans were then permitted to flow out of the manhole onto the ground, and moved into metal bin containers located behind the home of the manager.
In the meantime, before the corn in Tank No. 1 was sold, a witness, Townley Williams, an employee of the Elevator, was directed by the manager of the Elevator to go on top of Tank No. 5 to ascertain whether or not there was room in that tank so that the beans in Tank *410 No. 3 could be put on top of the contents already in Tank No. 5. This witness testified that he went up on Tank No. 5 and attempted to look down in it but that it was so hot he could not look in the tank very long. He testified that at that time the laterals were so hot he could not bear to put his hand on them ‘ ‘ too much. ’ ’ He also testified that when he went back on the tank, after some of the beans had been drawn off, as follows: “The second time, after having drawn some beans off I could see — that’s the time I could see, you know I could see the fire, the simbling fire, betwixt a lightening bug and a cigarette — space about that long (indicating with fingers) in spots you know, all of them was not just together. Flame here (indicating) and one a little further. * * * Yes, sir, nоw the fire, what I would call the fire, was like between a lightening bug and a cigarette; it was in spots right here (indicating), and over here, indicating) —it was in spots just about like that. * * * In the beans on the north side of the dead man. Q. When you get up there on top and look in that porthole, can you see all around the tank? A. No, sir, couldn’t see all the way around it. Q. Can you see only the north side of the tank? A. That’s where, on the north side I seen it. The heat was too bad, I didn’t look down there too long, my eyes could not stand it.”
This witness further testified that after the beans were flowed out, he discovered a mass of beans which he called “dead man.” This mass of beans covered the bottom and extended into the tank about half way to the top, and that the beans on top of this “dead man” were cooked. He stated “they was cooked hard up there and they was hard to get down.” He also said “It was large at the bottom and keen at the top. * * * We would jog up in there and as I would jog, something would fall, would be some ashes, coals, burned beans, that’s all. The coals were hot. * * * Yes, sir, when we first started to jogging that’s when we seen some of them, *411 the coals, red, some parts of them, some red, and others were black, the beans. * # * Yes, sir, I fonnd some black beans and I fonnd ashes in some pockets there on the north side, plenty of those ashes, white ashes in there. ’ ’ He also testified that the ashes were “light like burned wood or rotten wood had burned, light, brown some of those, something of thаt kind.” He further testified that the fire was on the north side and that the “dead man” was straight up.
Another witness for the plaintiff, one Steve Hudson, testified: “Well, sir, on the lefthand side, this here, would be the north side, seen something looked like fire in spots, on this great big mass. I punched over there next to that mass and seen some sparks coming out of there, and all that gray stuff come running past the door. * * * Only time you could see the fire was when you jug up in there, you could see the fire, and that gray ashes come right down to the door where he was. * * * Them sparks, that’s what you would see when you jug up there. There was a hard thing up in the middle there, when you hit where that was soft was when you see them sparks; as long as you hit that thing where it was hard was no sparks nor nothing. Only time you could see it was on the left-hand side, next to that wall, looked like a white ash bank was there. When I jugged in there, them white ashes would come out and I could see them sparks up in there.”
Gibb Farrish, Chief of the Fire Department of Yazoo City, Mississippi, was introduced and qualified as an expert witness and an experienced fireman who had had experience with fires due to spontaneous combustion, and knew about temperatures and flamability of material. He had inspected the tanks of the Linwood Elevator when it was constructed, and knew about the cooling system used. He was given a hypothetical question, setting out the plaintiff’s case, as their attorneys conceived the facts to fairly prove, and was asked as *412 аn expert, experienced fireman, as follows: “What is yonr opinion as to whether or not spontaneous ignition had occurred in the tank?”, and answered “It is my opinion that due to the construction of the tank there, that spontaneous ignition had occurred. Some of my reasons would he, since the cooling system failed to cool it down, that being the purpose of the cooling system, and in January the temperature, in mid-January, would be in the forties or fifties, somewhere along there, and pulling cold air into the tank and through the beans, and the exhaust at the bottom is still hot enough, to heat a metal pipe where you couldn’t touch it, would indicate that a tremendous temperature is inside this tank. ’ ’
The defendant introduced John B. Thompson, who qualified as a Consultant Chemist and an expert witness. He testified that he had been furnished samples of the browned beans removed from Tank No. 5 at the Elevator. He stated that the beans had not reached a temperature of 212 degrees, and in order to ignite the beans the temperature would have to reach 780 to 800 degrees. He also stated that mold begins to form on soybeans when the beans have a moisture content of over 12%, and when the humidity of the air reaches 75%, the mold will heat and destroy itself at 120 degrees Fahrenheit, but that at this point the beans begin to heat and destroy themselves at a temperature of 390 degrees Fahrenheit. He said that this phenomenon of chemical deterioration is called “Bin Bum”, and is not “fire,” but is rapid oxidation of the beans by natural heat process and not by ignition. This expert witness, however, admitted that the foreign matter in the beans would have a much lower flash temparture than soybeans. He explained that hay will blaze at 450 degrees Fahrenheit, and that nothing will happen to trash in beans as long as it is undisturbed at 200 to 250 degrees Fahrenheit, but if it were suddenly disturbed, *413 it could momentarily flash. He stated that the presence of free ash is about the best test in any given situation to determine whether there had been a free fire, or whether there had been ignition.
The issues to be determined here are:' (1) Was damage to appellee’s soybeans caused by fire? (2) Can appellant be hеld liable if the soybeans were destroyed partly by fire and partly by internal deterioration and combustion, known as “Bin Burn”? (3) Assuming that there was a fire, was appellee’s damage caused partly by neglect (in failing to save and preserve the property) ? (4) Was the claim of appellee forfeited by false statements (made under oath) to the appellant Insurance Company?
Approaching the problem in this case chronologically, we are confronted at the threshold with the question: Was there a fire? “Fire” is defined in Webster’s New International Dictionary as: “The principle of combustion as manifested in light, esp., flame, and in heating, destroying and altering effects; combustion; ignition.” The legal sense of thе word “fire” is the same as the popular. See Bouvier’s Law Dictionary. “Fire policies insured against loss by fire in its ordinary sense, defined as combustion accompanied by visible light or heat.” See Schumacher Oil Works, Inc. v. Hartford Fire Ins. Co.,
In the case of Western Woolen Mill v. Northern Assurance Co., C. A. 8,
In the case of Lavitt v. Hartford County Mutual Fire Ins. Co.,
In the case of Providence Washington Ins. Company v. Adler,
*415
■ In the case of Security Insurance Company of New Haven, Connecticut, et al. v. Choctaw Cotton Oil Co.,
In the case of The Buckeye State,
We have mentioned the foregoing cases so as to point out that the courts in those cases have held that there was no “flame” nor “ignition”, except in the case of Choctaw Cotton Oil Company case, supra; and in that case the Court held that the insurance company was liable after the blaze was discovered.
Where a point of ignition has been reached and a blaze or flame is caused by spontaneous combustion, courts have uniformly reached the conclusion that there was a “fire.” In 45 C. J. S. 863, Section 809, the textwriter says: “It has been held that a fire insurance risk includes losses from spontaneous combustion, provided it is sufficient to produce visible heat or light.”
In the case of Shumacher Oil Works, Inc. v. Hartford Fire Insurance Co., et al.,
Our Court has held in two civil cases: ‘ ‘
*
* * negligence can be established by circumstantial evidence in the absence of testimony by eye-witnesses provided the circumstances are such as to take the case out of the realm of conjecture аnd place it within the field of legitimate inference, and further in this connection that the causal connection between an agency and the injury sustained need not be shown by direct evidence.” Johnson v. Canton Flying Services, Inc.,
Linwood Elevator offered two kinds of testimony to establish fire in Tank No. 5, factual and expert. The expert testimony was given by Gibb Farrish, Fire Chief,
*417
who testified that ‘ ‘ spontaneous ignition had- occurred. ’ ’ The Insurance Company earnestly argued that he was not an expert witness and that his testimony should not have been admitted; citing Merchants ’ Wharf-Boat Ass ’n v. Wood, et al.,
This Court has pointed out in the case of King v. King,
In the case of Aponaug Mfg. Company v. Carroll,
*418
In the case of Hinckley v. Shell Company of California,
In the case of Wishek, et al. v. U. S. Fidelity & Guaranty Company of Baltimore, Md. (N.D. 1927),
The textwriter of 20 Am. Jur., Section 783, Evidence, pp. 656-657, has this to say with reference to qualification of expert witnesses: “Generally speaking, to be competent to testify as an expert witness, one must have acquired such special knowledge of the subject matter about which he is to testify, either by study of the recognized authorities or by practical experience, that he can give the jury assistance and guidance in solving a problem which the jury are not able to solve because their knowledge is inadequate. * * * Accordingly, therefore, one qualified by professional, scientifiс, or technical training or by practical experience, in regard to a particular subject or field of endeavor, which gives Mm special knowledge not shared by persons in the ordinary walks of life, may testify as an expert on questions coming within the field of Ms training and experience, subject, of course, to the broad exclusionary rules of evidence relative to pertinency and relevancy # * * Witnesses are usually called ‘experts’ when they possess peculiar skill and knowledge upon the subject matter upon which they are called to testify. Such witnesses, perhaps, might better be called ‘skilled’ than ‘expert’, for persons constantly engaged in special lines of activity possess knowlеdge of certain facts not known by ordinary persons.”
*419
We are of the opinion that the witness Gibb Farrish was properly introduced as an experienced or expert witness, and that as such, he could give his opinion as. to conclusions from facts within the range of his specialty. See Congress and E. Spring Company v. Edgar,
Wе do not believe that the case of Teche Lines, Inc. v. Bounds,
The lower court did not commit reversible error in permitting Farrish, Fire Chief, to give his opinion as to whether or not there was fire in Tank No. 5.
*420 The defense witness, John B. Thompson, testified that an examination of the beans would show whether or not they burned externally in fire or burned internally by spontaneous combustion. The appellant had submitted some of the soybeans to a chemical laboratory, and this laboratory reported that it could not tell whether or not these beans had been burned externаlly qr internally by spontaneous combustion, and did not know that any laboratory could make such an analyses. Some of these beans were then sent to the witness Thompson, above-mentioned. Moreover, the expert witness Thompson had only a few of the beans picked up at the opening in Tank No. 5. He did not have any good beans, nor any of the ashes, and judging by his testimony, a test of the ashes would have been inore beneficial for the purpose of his examination than the brown beans. Therefore, taking all of the testimony in this case into consideration, we think it has been clearly shown that in soybeans there is a very fertile field for spontaneous combustion, and that the heat of “Bin Burn” can reach such temperаture as to cause certain flammable foreign matter, sometimes found in soybeans, to break into flame and ignite, and then the foreign matter acts as kindling to trigger the burning of the entire pile of beans. We are of the opinion that the jury had ample testimony to hold that there was a fire in Tank No. 5 of Linwood Elevator on the 21st day of January, 1959.
' The appellant next complains that even if appellee had proved damage to the beans was a result of fire (the appellee has some fire loss, for which appellant is liable), combined with loss by “Bin Burn”, (an independent source for which appellant is not liable), the appellee has failed to distinguish between damage caused by fire and damage caused by “Bin Burn”, and that the appellee would only be entitled to nominal damages. We have read all of the cases cited by appellant in tort actions, however these cases do not help us with the prob *421 lem here; because the rule in tort damage cases does not apply where there is loss by fire. We are here dealing with the “proximate cause”, rather than separate and different causes of liability of different tort feasors.
The rule is set out by the textwriter in 29A Am. Jur., Insurance, Section 1134, p. 288, as follows: “The general rule of insurance law is that only the proximate cause of loss, and not the remote cause, is to be regarded in determining whether recovery may be had- under a policy of insurance, and that the loss must be proximately caused by a peril insured against. But proximate cause has a different meaning in insurance cases than it has in tort cases. In tort cases the rules of proximate cause are applied for the single purpose of fixing culpability and for that reason the rules reach back of both the injury and the physical cause to fix the blame on those who created the situation in which the physical laws of nature operated; in insurance cases the concern is not with the question of culpability or why the injury occurred but only with the nature of the injury and how it happened. The maximum ‘in jure, non remota causa sed próxima spectatur,’ is applied in a much more literal sense to cases in which the liability of an insurer is to bе ascertained than to those involving a breach of contract or a tort. If the nearest efficient cause of the loss is one of the perils insured against, the courts look no further. In such cases the insurer is not to be relieved from responsibility by showing that the property was brought within the peril insured against by a cause not mentioned in the -contract. (Emphasis supplied.)
“If the nearest efficient cause of the loss is not a peril insured against, recovery may nevertheless be had if the dominant cause is a risk or peril insured against. * * *”
In the case of Lummel v. National Fire Ins. Company of Hartford, Conn.,
In the case of Varano, et al. v. Home Mutual Fire Insurance Company of Broome County, N. Y.,
In the case of Allied American Mutual Fire Insurance Company v. Wesco Paving Co.,
In the case of Baltimore Gas & Electric Company v. United States Fidelity & Guaranty Company,
*423
In the case of Commercial Standard Insurance Company v. Feaster,
In the case of Norwich Union Fire Insurance Society, Ltd. v. Board of Commissioners of Port of New Orleans,
In the case of Furbush v. Consolidated Patrons’ and Farmers’ Mutual Insurance Company,
We are therefore of the opinion that in the case at bar the fire was the direct, proximate cause of the loss of the soybeans in Linwood Elevator.
The appellant suggests that the judgment in the lower court should not be permitted to stand because the policy contained a provision that the insurer is not liable for *424 loss by fire “caused, directly or indirectly, by * * * neglect of the insured to use all reasonable means to save and preserve the property at and after a loss.” The appellant points out that if “Bin Burn” caused the fire, the continuous pumping* of air into the tank materially increased tbe temperature and hazard of fire. On the other hand, it is suggested that if there were fire from an outside or external source within the tank, the appellee was negligent in using reasonable means to preserve the property between January 21st and 26th, either by empting the tank on tarpaulins on the ground, or should have called the fire department.
We do not find error was committed by the court on the question of negligence by appellee in failing to preserve the property “at and after the loss.” It was apparent that appellеe did all that could be done to save the insurer from further liability by immediate sale of all of the damaged beans in an effort to mitigate the loss. The question as to whether or not appellee Linwood Elevator was negligent “at and after the loss” was submitted to the jury under proper instructions. Negligence is a question for the jury on conflicting testimony. Section 1455, Miss. Code 1942. The jury resolved this question in favor of appellee. The testimony shows that the operator of Linwood Elevator used the cooling system in an effort to cool the soybeans as soon as he learned they were getting hot in spots. This procedure had theretofore always cooled hot spots in the bean tanks. Moreover, the clause in the policy “neglect of the insured to use all reasonable means to save and preserve the property at and after a loss”, does not apply to loss resulting from an effort to extinguish fire or otherwise save the property, whether by spoilage or otherwise. Any action such as pouring* large quantities of water upon the fire would thereby damage the insured property. 45 C. J. S., Section 811, Insurance, p. 863.
*425
The appellant complains that the granting of instructions No. 5 and 6 are erroneous because they refer to the pleading and are not complete within themselves, but as set out in the cases cited, this error is cured when the instructions, taken as a whole, properly instruct the jury and they are not confused by the instructions granted. See Yazoo
&
M. V. R. Company v. Cornelius,
The appellee Linwood Elevator filed its proof of loss with the appellant insurance company in which it stated that the cause of loss was “overheating of grain”, and the proof of loss shows overvaluation of 15^ per bushel for the soybeans damaged, lost or destroyed, and failed to give credit for 1,091 bushels of soybeans at $2.20 per bushel which had been dumped into Tank No. 5 after the fire started, and beans worth $600 which were still in their possession. The appellant cited cases of attempted fraud and where there was a “reckless disregard for the truth and the facts.” We are of the opinion that the testimony not only failed to show that there was an attempted fraud or a reckless disregard for.the truth and facts, but, on the other hand, the operator of the Elevator did all within his power to present a true proof of loss. Moreover, as soon as it was discovered that the soybeans had been overvalued, proper amendments were made to the pleading to reveal the true facts.
. The general rule with reference to false swearing may be found in 45. C. J. S., Insurance, Section 1021, p. 1247, *426 as follows: ‘ ‘ Generally speaking, false swearing relating to a loss consists in knowingly and intentionally stating on oath what is not trne, or the statement on oath of a fact as trne which the person does not know to be true, and which he has no reasonable ground for believing to be trne. To avoid the policy the statements must in fact have been false, and must have been so made knowingly or intentionally and willfully. ’ ’
Our Court has said in the case of Mississippi Fire Insurance Company v. Dixon,
We find that the lower court committed no error in refusing to grant the appellant an instruction on the forfeiture of the policy for false swearing, in the form presented to the court in this case; nor, do we find that reversible error was committed in the refusal to grant judgment, or grant a new trial on the ground that appellee concealed that there was any other cause of loss except overheating of grain from spontaneous combustion.
The jury returned a verdict fоr $11,016.57 for the plaintiff. The testimony for the plaintiff showed that there were 12,192.52 bushels of soybeans and 866 bushels of foreign matter in Tank No. 5. It further appears that 1,091.48 bushels of beans were added to this tank on January 21, 1959, and these last beans were subtracted from the total. The value of the beans on that date was $2.05 per bushel or $24,994.66. The damaged beans in Tank No. 5 brought $12,798.28, and subtracting this amount and the amount of $600 for the value of the beans in the bin behind the manager’s home, there re *427 mained the sum of $11,596.38. There was a 5% deduction required by the contract because of failure of the plaintiff to make a full report under the reporting clause of the contract. After taking from the total this 5% deduction, the total value of the fire loss was $11,016.57.
We are of the opinion that the jury verdict was proper, and that the judgment of the court below was correct and should be sustained by this Court. The case will therefore be affirmed.
Affirmed.