Fireman's Fund Ins. Co. v. Jackson

• Decision Date: 15 January 1926
• Docket Number: 4756.
• Parties: FIREMAN'S FUND INS. CO. v. JACKSON.
• Court: Georgia Supreme Court

131 S.E. 359

161 Ga. 559

FIREMAN'S FUND INS. CO. v. JACKSON.

No. 4756.

Supreme Court of Georgia

January 15, 1926

Syllabus by the Court.

Under the facts stated in the certified question, the conduct of the defendant company did not constitute a waiver of the provision of the policy as set forth in paragraphs (a) and (e).

Certified Question from the Court of Appeals.

Suit by Mrs. J. T. Jackson against the Fireman's Fund Insurance Company. Judgment for plaintiff, and defendant brings error. On certified question from the Court of Appeals. Question answered.

Smith Hammond & Smith, of Atlanta, and Whipple & McKenzie, of Cordele, for plaintiff in error.

Henderson & Davis and Watts Powell, all of Vienna, for defendant in error.

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 cases 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.Rep. 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 completion 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 that 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

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