The policies declared on, were admitted by the defendants. It was therein covenanted, that the company should, on certain terms, mutually insure the property of each of its members against fire. A part of the covenant in each was, that a true description should be given of the property insured in an application filed, and that such description should become a part of the policy. The policies were effected upon "goods and merchandise" contained in a building in the town of New-Berne, and in the plaintiff's application for insurance, a part of the description of the building is as follows: "36 x 25. — One chimney. No fire-places. One stove. Pipe enters chimney from second floor — ashes and pipe properly secured." It was proved that the store-house described in the application containing the goods, took fire during the time stipulated for insurance, but was not entirely consumed. It was extinguished in about half an hour after it commenced burning. This was effected by throwing large quantities of water upon the burning store-house, both inside and outside of the building, part of which fell upon the insured goods and wetted and soiled them very materially. It was proved that the building was in great danger of being entirely destroyed by the fire, and in order to rescue it, many of the inhabitants of the town assembled around, and used the means stated, for its preservation, and that these means were proper and necessary for that purpose. It was proved, also, that during the progress of the flames, great tumult and disorder prevailed — that the goods were removed out of the house — some into the streets, and some into adjacent buildings, with great haste and precipitation, during which period, they were wetted and damaged as stated, and some of them stolen and not recovered. It was also proved that the plaintiff and his wife were present at the fire, and made every exertion in the removal and preservation of the goods. None of the goods of any value were destroyed by being burned. What remained of the goods, after the fire, were taken back into the store-house and kept for sale by the plaintiff.

The defendant proved that previously to the year, 1848, there had been a stove-pipe inserted into the chimney mentioned in the plaintiffs application which was removed, leaving a hole in the chimney about five or six inches in diameter, and that upon the removal of the pipe, this hole was closed in the following manner: the outer circumference thereof was enlarged and a piece of sheet iron cut to fit tightly therein, and sunk into the brick-work of the chimney about one inch and a half; that the iron was pointed upon the edges to hold mortar; that the hole in the inside was filled with mortar, the iron plate then laid and embedded therein, and then the front or outside space filled also with mortar, to the extent of an inch and a half. There was evidence that this work was done by an experienced and skillful mason, and that the hole when thus closed, was as perfectly secure as if it had been done with brick and mortar, or any other material, and that the chimney when thus repaired, was as secure as if no hole had been made therein. This hole was not mentioned in the application filed. It was further in evidence, that after the tumult had subsided, the iron was discovered to be displaced. There was evidence that the fire first took place in the room where the hole in the chimney was; while other testimony went to show that it took place in another part of the building. There was no evidence that there had been any fire in the stove or fire-place attached to the chimney. The Court charged the jury "that if the plaintiff, in his said application, misrepresented the premises in any material particular, or failed to disclose any fact which would increase the risk of the defendants, and which, if made known, would have tended to prevent them from undertaking the risk, the policies would be void, and the plaintiff would not be entitled to recover; that it was not unconditionally necessary for the plaintiff to disclose the manner in which the opening for the stove pipe had been closed, if it had been secured safely, i. e. as well as brick and mortar would have secured it. The Court further charged the jury, that if, after the issuing the policies, sued on, there was made any change or alteration in the premises or in any part thereof, which tended to increase the risk, and the plaintiff failed to communicate the same to the defendant, the plaintiff would not be entitled to recover. The Court further charged the jury that if there was any defect in any part of the premises arising from accident or other cause after the issuing of the policies which the plaintiff knew of, or ought to have known of, which defect or imperfection the plaintiff failed to repair, and the fire took place from his gross negligence, the plaintiff would not be entitled to recover; but such negligence must be extreme and reckless. The Court further charged the jury, upon the question of damages, that if it was necessary to throw water on the fire to extinguish it, and the goods in the store were thereby wet and soiled, the damage thus done was covered by the policies, and the plaintiff was entitled to recover for the same, and that if the store-house was in imminent danger of being burnt, and the goods were removed therefrom for the purpose of preventing their destruction by the fire, and in so doing, and in consequence of such removal, the goods were injured or soiled and a portion of them stolen, the plaintiff would be entitled to recover damages to the extent of the loss which he thereby sustained. The defendant excepted.

Verdict for the plaintiff. Judgment. Appeal.

PEARSON, C. J.

1st. It is to be assumed from the verdict, that the hole which had several years before, been made in the chimney for the stove-pipe, "had been secured safely, i. e. as well as brick and mortar would have secured it." The fact that the hole had been made, was, therefore, immaterial, and the plaintiff was not required to disclose it. 2nd. We concur with his Honor in the opinion that the insured does not forfeit the benefit of the policy by failing to repair any defect arising after the policy issued, unless he is guilty of gross neglect in respect thereto. But we can see no evidence upon which the question was presented. The fact, that after the fire was extinguished, "the piece of sheet-iron" was discovered to be displaced, certainly did not establish negligence, in the absence of proof that it had been displaced before the fire. Indeed, the probability is, if conjecture may be resorted to, that it was knocked out during the tumult and confusion caused by the efforts to extinguish the fire, and remove the goods.

3rd. We also concur in the view taken as to the measure of damages. Throwing the water and removing the goods, were acts done for the purpose of saving them, and the injury caused by the goods being thereby wet and soiled, certainly constituted a part of the damage, and we think the value of the goods that were stolen, falls under the same principle, being a loss incident to the attempt to save them. For whose benefit was the attempt made? For that of the defendant; and as the goods that were saved were allowed in mitigation of the damages, the objection that the portion of them that were lost ought not to be paid for, is made with an ill grace. Had the plaintiff and his wife, instead of exerting themselves in removing the goods, and putting them back, as soon as the danger was over, stood listlessly by and permitted them to be burnt up, they would have been obnoxious to the charge of gross negligence. Underwriters are liable when the fire is the act of an incendiary and, a fortiori, are they liable for the depredations of thieves who avail themselves of the exposure which is unavoidable on such occasions, and which is incident to the attempt to save the goods for their benefit.

Mr. Bryan cited no authority for the position that a member of a mutual insurance company had not the same rights under his policy that a third person has against an independent underwriter. We can see no principle upon which to base the distinction.

PER CURIAM. Judgment affirmed.