Columbian National Life Insurance v. Mulkey

79 S.E. 482, 13 Ga. App. 508, 1913 Ga. App. LEXIS 242

• Court: Court of Appeals of Georgia
• Decided: August 25, 1913
• Docket: 4998
• Status: Published

Opinion

Hill, C. J.

“The failure to pay a promissory note, taken in payment of an insurance policy (although it is stipulated in the note that the nonpayment of the same at maturity will avoid the policy), will not forfeit the policy, where there is no condition in the policy itself providing for its forfeiture for the non-payment of notes.” “When'the condition as to forfeiture for non-payment on maturity of a note given for the premium is contained only in the note, the mere fact that the note is not paid at maturity does not of itself avoid the policy. Such a provision is a condition subsequent, of which the company must avail itself by clear and unequivocal acts.” The decision in Arnold v. Empire Insurance Co., 3 Ga. App. 685 (60 S. E. 470), is controlling. There is no conflict between the decision in that case and the decision of the Supreme Court in Stephenson v. Empire Life Insurance Co., 139 Ga. 82 (76 S. E. 592). In the Stephenson ease the provision relating to forfeiture for non-payment of premium notes was contained in the policy itself; in the Arnold case it was in the premium note only; and in the instant case the condition was contained, not in the policy contract, but only in the note, and is therefore within the ruling in the Arnold case. Joyce on Insurance, § 1211; May on Insurance, § 345e. Judgment affirmed.

A general demurrer to the petition was overruled, and the defendant excepted.

WatTcins & Latimer, for plaintiff in error. Horton Brothers & Burress, Anderson & Rountree, contra.