
    O. Talamon & Co., for the use of, &c., v. Home and Citizens’ Mutual Insurance Companies.
    "When the policy compels the assured to labor for the protection of the goods, and they are injured or stolen in the attempt to avoid the fire, the insurer is responsible.
    Appeal from the Sixth District Court of New Orleans, Howell, J.
    
      G. (& 0. JS. Schmidt, for plaintiffs and appellants. Bonford, Singleton <& Olaelc, and A. A. JPitot, for defendants.
   Buchanan, J.

Pontiff insured against fire, in two offices, five thousand dollars in each, a stock in trade of a country store. Before the expiration of the risk, a fire broke out in the immediate vicinity of the premises occupied by the assured. This was the same fire spoken of in our decision of the case of Caballero and Basualdo, reported in 15th Annual, p. 217.

Plaintiff has made a statement of the loss suffered by him, under the four following heads:

1.A portion of the stock of goods, amounting to #8,000, was damaged by blood, mud and water, to the amount of 30 per cent.— say.#2,400

2.Another portion, of the value of #1,200, was damaged.by the bursting of the roof, and the falling of bricks, timber, &o,, to the extent of 30 per cent., say.'. 360

3.The remainder of the stock, valued at #10,800, damaged in consequence of the necessity of removal during a dark night, to the extent of 15 per cent. — say. 1,620

4.Expenses of removal. 150

Total.#4,530

The defence set up against this claim is, that the loss was not occasioned by a risk assured against.

From the evidence, it seems that no'part of the stock in trade of plaintiff was actually consumed by fire; but that the damage was sustained, partly in efforts to remove the goods from the premises of plaintiff to a place more remote from the seat of conflagration, with the intention of Saving them from threatened destruction by fire; and partly, by the fall of buildings occasioned by an explosion of gunpowder.

The District Judge was of opinion that inasmuch as by the conditions of the policy, the assured was obliged to use his best endeavors for saving and preserving the property, in the cases of fire, and of loss or damage by fire, and of exposure to loss or damage by fire, that he was entitled to recover for the third and fourth items of the above statement.

The plaintiff appeals, and urges that the first item of his statement of loss, is, equally with the third and fourth, referable to the head of damage occasioned by a compliance with his obligation to use his best endeavors to preserve the propetry from the fire.

On the other hand, the counsel of defendants, who by an answer to the appeal filed, ask for an amendment of their judgment in their favor, contend that the plaintiff has no claim to indemnity for damage and expenses incurred in removing the goods, because, in so doing, he was simply complying with a condition imposed in the interest of the underwriter, and diminishing his liability.

Upon this point of controversy, we quoted with approbation, in the case of Caballero (15 An. 217) an authority from Bouvier, to the effect that “ when the policy compels the assured to labor for the protection of the goods, and they are injured or stolen in the attempt to avoid the fire, the insurer is responsible.” We have seen no good reason for changing our opinion upon this point. It remains to be seen, whether the first item of plaintiff’s statement comes within this class of damage.

It is not expressed in the statement that the damage by mud, blood and water, was incurred in the attempt to remove the goods from plaintiff’s store; but the evidence makes it very clear that, in point of fact, it was so incurred. Upon the jn'inciples of the decision in the court below, and of the doctrine heretofore recognized by us, the plaintiff is therefore entitled to have the first item of damage assessed in his favor. The policy makes plaintiff his own insurer to the extent of one-fourtli of the loss. The other three-fourths of the first, third and fourth items of loss, must be borne by defendants in equal proportions.

The-second item is inadmissible under the decision in the case, above quoted, of Caballero and Basualdo. Upon this point the Court was divided in that case, two Judges dissenting, as shown by the report of the case. But the counsel of plaintiff relieves ris of any difficulty in relation to it, by waiving in argument, before this Court, this portion of his claim.

•It is therefore adjudged and decreed, that the judgment of the District Court be amended; and judgment is hereby rendered in favor of O. Tala-mon & Co. for the use and benefit of A. Sallé, against each of the defendants, the Home Mutual Insurance Company of New Orleans, and the Citizens’ Insurance Company of New Orleans, severally, for the sum of fifteen hundred and sixty-three dollars and seventy-five cents, with legal interest from judicial demand; and against the said defendants, in solido, for the costs in both courts.  