¶1(aftei: stating the facts.) The theory upon which a recovery is sought in this case is presented by the complaint, the testimony of appellee, and the following instruction given by the court upon its own motion : “The jury are instructed that if they believe, from a preponderance of the evidence, that the plaintiff, while acting as constable, delivered to the defendant or his agent the cotton in controversy under a contract that the defendant would gin it by a certain time, and that the defendant negligently failed or refused to gin said cotton as agreed and that the same was thereby destroyed, they -would be authorized to find for the plaintiff.”
¶2No causal relation is shown between the failure of appellant to comply with his contract to gin, and the fire, which was the direct cause of the loss of the cotton. The appellee does not seek recovery upon the ground that the bailee for hire did not use ordinary care in the preservation of the cotton, or that he negligently destroyed it. The rule of law founded in justice and common sense, and of universal application, as expressed in the maxim, ‘‘''Causa próxima, non remota, spectatur,” makes the first instruction as above quoted, when applied to the facts, clearly erroneous. This is the only just and correct measure of liability. True, we might say if the cotton had been ginned on Monday, and carried away on Tuesday, it would not have been burned on Thursday. To use language similar to that employed by Justice Battle in the case of Martin v. Railway Co. 55 Ark. 521, the failure to gin on Monday “was one of a series of antecedent events without which the loss would not have occurred, but such failure was in no sense the proximate cause of the loss.” Denny v. Railroad Co. 13 Gray, 481 ; Daniels v. Ballentine, 23 Ohio, St. 532 ; Martin v. Railway Co. 55 Ark. 521 ; Dubuque Wood & Coal Ass'n v. City, 30 Iowa, 176 ; St. Louis etc. Ry. Co. v. Commercial Ins. Co. 139 U. S. 223 ; Hoadley v. Northern Transportation Co. 115 Mass. 304; Railroad Co. v. Reeves, 10 Wall. 176; Morrison v. Davis, 20 Pa. St. 171.
¶3We deem it unnecessary to pass upon other- questions raised, for, if the case is presented again in the court below, it must be constructed and tried upon a different theory.
¶4Reversed and remanded.