This suit was brought by appellees, L. H. Arnold et al., to recover under a fire insurance policy issued by appellant, .North British & Mercantile Insurance Company, Limited, insuring appellees against loss by fire on a warehouse and additions thereto located at Crockett, Texas. The property was alleged to have been totally destroyed by fire while the policy was in force.
Appellant Insurance Company in its answer denied any liability tо appellees under said insurance policy. It pled, among other defenses, that (1) the building in question was destroyed by an explosion which ocсurred therein prior to the outbreak of the fire and that the fire which resulted from the explosion consumed only the debris, and that (2) a part of the building had fallen before the fire originated and that the insurance company’s liability under said policy ceased at that time.
In answer to speciаl issues submitted, the jury found, in substance, that the damage to appellees’ building was proximately caused by fire which totally destroyed the building and that no explosion occurred in the building prior to the origin of the fire.
Based on the answers to such special issues, the trial court rendered judgment against appellant and in favor of appellees in the sum of $2,000.
The insurance policy in question was for the face amount of $2,000. It was written on Decembеr 21, 1940, to run for a period of one year and to cover the warehouse in question and its contents. It contained the following provisions:
“This comрany shall not be liable for loss caused or (unless fire ensues, and in •that event, for the damage by fire only) by explosion of any kind.”
“If a building or any part thereof falls, except as a result of fire, all insurance by this policy on said building or its contents shall immediately cease.”
The building in question was destroyed in the early morning of January 27, 1941. There was no direct testimony as to how the fire originated or whether it preceded the explosion which was heard shоrtly before the fire was discovered and the fall of any part of the building. The night watchman who was on duty at the time testified that he passed the building in making his rounds shortly before the fire and saw no evidence of a fire; that some eight minutes later he heard an explosion and that several minutes later the firе alarm sounded. The first parties who arrived at the scene of the fire testified that they found the building in flames. The majority of the witnesses
Appellant contends that the answers of the jury to the issues submitted, to the effect that the damage to said warehouse building was proximately caused by fire and that the fire was not caused by an explosion which occurred in said building prior to the origin of the fire, are not supported by the evidence and that they are contrary to the great weight and preponderance of the evidence adduced on the trial of the case. This contention cannot, we think, be sustained under thе record.
The case of Fire Association of Philadelphia v. Thompson, Tex.Civ.App.,
“The first proposition urged is that the court should have given the requested peremptory charge for defendant. The evidence is sufficient to require the court to submit the questions to the jury. It is almost wholly circumstantial upon the issue of whether the fire preceded the explosion, or the explosion the fire, but, we think, sufficient to support the finding in favor of plaintiff upon the issue.
“The next proposition is that -the undisputed evidence is that the damage was the result of the explosion and not of firе; therefore defendant was not liable under the provisions of the policy pleaded. This proposition is near akin to that next above, аnd we cannot hold that the undisputed evidence shows that the damages to the property were all due to the explosion and none to the fire. There is evidence to support a finding either way; therefore it was a question for the jury to determine.”
The following cases grew out of the same fire and explosion. They are cited in support of the legal principles involved: Northwestern National Insurance Co. v. Westmoreland, Tex.Civ.App.,
The verdict of the jury in the instant case, as in the Thompson case, is based upon circumstantial evidence. Thе witnesses in this case could only testify as to what they saw after they arrived at the scene of the fire and from this the jury had the task of determining which ocсurred first, the fire or the explosion. The jury found that the fire preceded the explosion. Appellee, L. H. Arnold, an interested witness, was the only witness whо testified that the walls of the building were- standing when he arrived at the scene of the fire after the explosion.
It is peculiarly within the province-of thе jury to pass upon the credibility of the witnesses. They may accept the testimony of a witness as true or untrue from his manner of testifying, his interest in the result of the litigation, or other facts which bear on his credibility and may give the testimony such weight as is considered proper. Pope v. Beauchamp,
Appellant complains of the action of the trial court in rendering judgment for appellees, for the alleged reason that nowhere in the сharge or in the issues submitted was the jury required to make a finding as to whether -the building in question was destroyed as a direct and proximate result of a “hostile firе” which preceded any explosion therein. The record shows that the appellant requested special issues setting up its defensive theоry of the case and its defensive issues, which were refused by the court, including appellant’s definition of “hostile fire”. This contention cannot be sustained.
Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.
Affirmed.