D.C. Cas. Co. Of N.Y. v. L. W. Rogers Co

• Decision Date: 15 January 1924
• Docket Number: (No. 3532.)
• Citation: 157 Ga. 158,121 S.E. 224
• Parties: COLUMBIA CASUALTY CO. OF NEW YORK. v. L. W. ROGERS CO.
• Court: Georgia Supreme Court

157 Ga. 158

121 S.E. 224

COLUMBIA CASUALTY CO. OF NEW YORK.

v.L. W. ROGERS CO.

(No. 3532.)

Supreme Court of Georgia.

Jan. 15, 1924.

(Syllabus by the Court.)

Atkinson and Gilbert, JJ., dissenting.

Certiorari from Court of Appeals.

Action by the L. W. Rogers Company against the Columbia Casualty Company of New York. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error. Affirmed.

Westmoreland & Smith, of Atlanta, for plaintiff in error.

Mayson & Johnson, of Atlanta, for defendant in error.

PER CURIAM. Judgment affirmed. All the Justices concur, except ATKINSON and GILBERT, JJ., dissenting.

RUSSELL, C. J. (concurring). At first glance a statement in a policy of insurance against loss from burglary that the company would not be liable in case of loss unless there were visible marks on the exterior of the safe would seem to preclude a recovery upon such policy where there were no visible marks of violence or of forcible entry on the outside of the receptacle in which the money lost by a burglary was contained. However, there is no principle of law better settled than that "policies of insurance will be liberally construed in favor of the object to be accomplished, and the conditions and provisions of every contract of insurance will be construed against the insurer who prepares and proposes the contract. * * * " If such conditions, "when construed in connection with the terms of the policy as a whole, " will effect the result intended to be reached by the payment of the premium which has been paid, or if a stipulation is subject to two constructions, the construction of the contract most favorable to the insured will prevail. Perkins v. Empire Life Insurance Co., 17 Ga. App. 658, 87 S. E. 1094; Arnold v. Empire Life Insurance Co., 3 Ga. App. 695, CO S. E. 470; Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256, 30 S. E. 918, 42 L. R. A. 261. As remarked by Mr. Justice Harlan in Thompson v. Phenix Insurance Co., 136 U. S. 287, 297, 10 Sup. Ct. 1019, 1023 (34 L. Ed. 408):

"If a policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured. This rule, recognized in all the authorities, is a just one, because those instruments are drawn by the company. National Bank v. Insurance Co., 95 U. S. 673, 678."

As appears from the record, the defendant in the lower court contests and denies its liability under the eighth "special agreement, " that "the company shall not be liable for loss of * * * money, * * * unless entry into such safe or vault has been effected by the use of tools, explosives, electricity, or chemicals directly upon the exterior thereof." The words "fireproof safe or vault, "twice used in this provision, clearly require interpretation. It is not clear whether the words "safe or vault" refer to one receptacle which may be both a safe and a vault, or to a safe included within a vault, or a vault included within a safe. But under the rule above stated the meaning of this clause must be ascertained by construing it with other provisions of the contract of insurance; and yet in the first statement in the contract of insurance the...