Fireman's Fund Insurance v. Jackson, 161 Ga. 559

Fireman's Fund Insurance v. Jackson

161 Ga. 559 | Ga. | 1926

Gilbert, J.

The clause of the insurance policy, designated as (a) is devoid of ambiguity. The act of the insurer, that is, the effort to collect unpaid portions of the premium represented by notes, was a matter subsequent to the issuance of the policy and does not fall within that class of eases where the acts were done previous to or simultaneously with the issuance of the policy and were held to be waivers. Johnson v. Ætna Insurance Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92), and authorities cited. The contract of insurance provided: “It is understood and expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note, given for premium upon this policy, remains past due and unpaid,” etc. The word “while” used in this connection does not mean that on failure to pay the installment the policy became absolutely void. The word rather has the meaning of “pending” or “during the time” that is, that “pending the time” or “during” the time the installment note remains unpaid the policy was unenforceable, and when the installment note was paid the primary status was restored. Webster’s New International Dictionary defines the word “while” as meaning “during the time that; as long as,” etc. The same authority defines the word “pending” as follows: “During, hence during the pendency of, the com? *562pletion of, or the like, as pending the action, decision, negotiations, settlement.” This dictionary gives as synonyms the word “during” as “during the trial.” “In modern usage, it more frequently has the sense of while awaiting (an occurrence), until the conclusion of (an action); as, pending his return, pending the decision, pending the negotiations.” Therefore, it would appear that the clear meaning of the contract of insurance was that pending or during the time when the installment of the premium was due and unpaid the company would not be liable. In Kerr on Insurance, 301, § 132, the author says: “A provision in a premium note that if it is not paid at maturity the entire premium shall be considered earned, and the policy shall be null and void so long as the note remains overdue and unpaid, is valid and binding, and the policy is unenforceable if the note is not paid at maturity or prior to the loss.” In 3 Joyce on Insurance, § 2510, it is said: “A condition in an insurance policy, that in case a premium note is not paid in full at maturity the policy shall be inoperative so long as it remains unpaid, is a valid condition, and is a good defense to an action on the policy for a loss occurring during the period of default.” In. the case of Jefferson Mutual Insurance Co. v. Murry, 74 Ark. 507, 510 (86 S. W. 813), it was said: “It is also stipulated, that, in case of default in the payment of the note at maturity, the full amount of the premium shall be. considered as earned. According to this stipulation, the premium was earned by the risk assumed and borne by the insurer in the period or periods during which the policy was not suspended, and was in force. This being true, the acceptance of the payment of the note after the destruction of the property insured by fire in no way affected the rights of the appellant, as it was entitled to the payment in any event and in any aspect of the case. . . The property insured having been destroyed by fire while the policy was suspended, the parties stood as they would have if the fire had occurred after the expiration of the time first fixed for insurance. The insurance company was not liable, and no proof of loss was required or made necessary by the contract of parties.” In the opinion in the case of Williams v. Albany City Insurance Co., 19 Mich. 451 (2 Am. R. 95), the writer said: “And, so far from seeing any reason to doubt the validity of the provision, I am unable to see anything unfair or unreasonable in it.- It. seems to memo more than fair and recip*563rocal, that, while the insured continues in his violation of the contract to pay, the insurer should not be bound by his, to sustain the risk, when the parties have so deliberately agreed, and when the insured has it in his power at any moment, by simply performing his own duty, to make the insurer resume the risk for the future; and when it must be presumed that the amount of premium was fixed with reference to tliese provisions.” And see Wall v. Home Insurance Co., 36 N. Y. 157. The insurance policy sued on in this ease contains the following provision: “The company may collect, by suit or otherwise, any past-due notes or installments thereof, and a receipt from the said Atlanta office of the company for the payment of past-due notes or installments must be received by the assured before there can be a revival of the policy, such revival to begin from the time of said payment, and in no case to carry the insurance beyond the end of the original term of this policy.” That is, while the installment remained- due and unpaid, the liability of the insurer was suspended. Under the facts stated in the question, therefore, we answer that the conduct of the company did not constitute a waiver of the provisions of the policy set forth in paragraphs (a) and (e).

All the Justices concur, except Bussell, G. J., dissenting.