HYDE ET AL. vs. MISSISSIPPI MARINE AND FIRE INS. CO., 10 La. 543

Martin, J., delivered the opinion of the court. , The petitioners allege, that their steamboat Tom Bowling, was insured in the defendants’ office, by two monthly policies. That on their application for the second policy, the boat had sustained considerable damages, for which they had a claim on the defendants, and that, afterwards, while she was at the risk of the defendants, under the second policy, she was entirely lost and destroyed, during, and in consequence of a storm; wherefore, they claim a compensation as for a total loss.

The defendants pleaded the general issue.- There was judgment for the plaintiff, for four thousand dollars,, and the defendants appealed. The facts alleged in the petition, appear to be establshed. There cannot be any doubt, that the defendants are liable for a partial loss, under the first policy.

The doubt whether they be so for a partial or total loss on the second, arises on a clause in that instrument, in which it is stated, that the insurance is made on condition that the damage which the boat sustained, while she was at the risk of the defendants under the first policy, should be repaired, and the boat put in as good a condition as she was previous to the accident, which occasioned the damage sustained under the, first policy; in other words, whether this was a condition precedent, postponing the risk until it was accomplished.

We are of opinion it was not The risk under the second policy began on the 25th June, at twelve o’clock at noon. The accident under the first policy happened on the 12th of the same month.

As the second policy was against all risks* happening between the 25th of June, and the 25th of July, it is clear that it was not the intention of the parties that the obligation which the insured incurred, to send to Little Rock, on the Arkansas river, where the boat lay, and have the repairs completed, should suspend the risk within the time necessary to effect this, which probably must .have consumed the better part of the time for which the insurance was made.

It cannot be believed, that the,insured would have paid a premium for thirty days, in order to have the boat insured, during a period of less than fifteen days. If the risk bad been intended to be postponed, until the’condition was performed, no premium could have been taken for the time necessary to do so. The condition imposed on the insured the obligation of repairing the boat, before she was exposed to the perils of navigation. In the meanwhile, any risk resulting aliunde, as from fire, were covered by the policy.

As but four days expired, between that on which the obligation to repair was incurred, and the storm, during which she sunk, it is clear that no laches can be imputed to the insured. It is, therefore, ordered, adjudged and decreed that the judgment of the Parish Court be affirmed with costs.