Opinion
30695.
DECIDED FEBRUARY 17, 1945.
Complaint on life policy; from Floyd superior court — Judge Porter. September 19, 1944.
Wright Fullbright, for plaintiff in error.
Leon Dean Covington, contra.
1. A provision in a life-insurance policy that the "double-indemnity" feature of the policy shall cease to be in force if at any time the insured shall be under enrollment in any branch of military or naval service in time of war, is binding and applies where accidental death occurs at any time during war while the insured is under enrollment in any of the services described, even though the death may have had no connection with any combat duty or other hazards incident to war.
2. Where the defendant pleads a policy provision as a bar and as an affirmative defense to the action, the plaintiff is not required to plead a waiver of the provision in order to introduce evidence tending to show such a waiver.
3. The evidence, though uncontradicted, that officers of the defendant insurance company had actual knowledge of the insured's enrollment in military service at the time payment of the "double-indemnity" premium was made to a clerk in the company's office, without showing that the knowledge possessed by the officers, or either of them, was in fact applied to or connected with the receipt and retention of the premium payment, does not demand a finding as a matter of law that the insurer waived the war-service provision; and the court erred in directing a verdict for the plaintiffs, and in overruling the motion for new trial.
DECIDED FEBRUARY 17, 1945.
The defendants in error sued the plaintiff in error upon a supplemental agreement for double indemnity in case of accidental death contained in a policy of life insurance. The agreement contained a provision as follows: "3. This supplemental contract shall cease to be in force under any of the following conditions: . . (b) If, at any time, the insured shall be under enrollment in any branch of military or naval service, in time of war." The company's defense was that the insured at the time of his accidental death was enrolled as a soldier in the United States Army during the present war, and that the double-indemnity provision of the insurance contract had ceased to be in force because of such military service. The plaintiffs in the trial court contended that the company had waived the provisions on which its defense was based by accepting payment of a premium on the policy on July 6, after the insured had been inducted into the military service on May 11, and prior to his death on September 27, 1943. They contended that the company accepted the premium on the policy, a portion of the amount being paid for the double-indemnity feature in the policy, with knowledge that the insured was in the army, and thereby waived the policy provisions invoked by the company. The insured was killed by the overturning of a tractor on the golf course at Fort McPherson, Georgia, where he was stationed. Prior to his induction into the army he was employed as golf professional and manager of the Coosa County Club in Rome, Georgia, where the defendant company's executive office is located. It appears from the uncontradicted evidence that the insured was known by some of the officers and former officers of the company; that one of the company's officials, D. B. Magruder, at one time "comptroller" and later "treasurer" of the company, was connected with the country club in the management thereof, being the secretary and a member of its board of directors and that he knew of the insured's occupational activities and his military service; that as such officer and director of the club at the time the insured was called into the army Magruder participated in meetings and actions wherein provision was made for the insured's wife to succeed him as manager of the club; that in the course of her duties, including weekly settlements with Magruder, she discussed her husband's military service and activities with him on a number of occasions prior to and about the time of the company's acceptance of the premium; that the premium was paid while Magruder held the title of "treasurer" of the defendant company, his duties being largely those of chief bookkeeper and chief accountant of the company, with the supervision and keeping of the records relative to the accounts with policyholders; that the insured's wife paid the premium to and took a receipt therefor from a clerk working under Magruder. The defendant company introduced no evidence, and the court directed a verdict for the plaintiff. The company now contends that the evidence fails to show sufficient notice of the insured's military service so as to make acceptance of the premium a waiver, that it could not return or offer to return the premium after the discovery of the insured's death because no administration was had on his estate, and that in any event it was for a jury to decide whether the established facts showed notice to the company. Other facts appear in the opinion which follows.
1. The provision in a supplemental agreement for double indemnity in case of accidental death, attached to and being a part of a life-insurance policy, that the supplemental contract shall cease to be in force "If, at any time, the insured shall be under enrollment in any branch of military or naval service, in time of war," is binding, and applies where accidental death occurs at any time during which the insured is under enrollment in the military forces during war, even though the death may have had no connection with any combat duty or other hazards incident to war. See Life Casualty Ins. Co. v. McLeod, 70 Ga. App. 181 ( 27 S.E.2d, 871), in which case the insured was killed in a personal rencounter while on leave or furlough from the United States Navy, and Lindsey v. Life Casualty Ins. Co., 70 Ga. App. 190 ( 27 S.E.2d 877), a case in which the insured was killed in an automobile accident while on leave of absence from his military station at Camp Blanding, Florida.
2. Counsel for the plaintiff in error contend that no recovery was proper on a waiver by the company of the "war-service" exclusion in the double-indemnity provision of the policy for the reason that the plaintiff did not plead a waiver and that a waiver or estoppel must be specially pleaded. The general rule is that estoppel, to be relied on must be pleaded. Irvine v. Wiley, 145 Ga. 867, 868 (3) ( 90 S.E. 69); Askew v. Amos, 147 Ga. 613 ( 95 S.E. 5); Hightower v. Blakely Hardwood Lumber Co., 163 Ga. 776 ( 137 S.E. 22), and cit. This rule seems especially true as to pleadings by a defendant, but as to the plaintiffs in the lower court in the instant case it was not applicable. "In a case where the defendant relies upon an estoppel as a defense, it must be pleaded because the Neel act requires that the defense be plainly and clearly presented; but this rule does not apply where the plaintiff relies upon estoppel in order to defeat a defense raised by the defendant in his answer." Brown v. Globe Rutgers Fire Ins. Co., 161 Ga. 849, 854 (2) ( 133 S.E. 260). See also Metropolitan Life Ins. Co. v. Bugg, 48 Ga. App. 363 ( 172 S.E. 829). "In a suit on a note it is not necessary for the plaintiff to plead estoppel, in order to invoke it to combat some affirmative defense against which the principle may be applicable." Davis v. Citizens-Floyd Bank Trust Co., 37 Ga. App. 275 (4) ( 139 S.E. 826), citing Askew v. Amos, supra. "While estoppel, when relied on, must generally be specially pleaded, such an issue may nevertheless be made by evidence admitted without objection." Fletcher v. Reaves, 28 Ga. App. 205 (2) ( 110 S.E. 510). There was no objection in this case to the evidence relating to an estoppel or a waiver, and this is an additional reason why the contention of the plaintiff in error on this point is not good.
3. "A waiver is the voluntary relinquishment of some known right, benefit, or advantage which the party would otherwise have enjoyed. Waiver is essentially a matter of intent based upon full knowledge of all the material facts, and the evidence relied upon to prove a waiver must be so clearly indicative of an intent to relinquish a then known particular right or benefit as to exclude any other reasonable explanation." Plumer v. Continental Casualty Co., 12 Ga. App. 594 ( 77 S.E. 917); Jones v. State, 57 Ga. App. 344 ( 195 S.E. 316); Bryant v. Continental Casualty Co., 58 Ga. App. 518, 530 ( 199 S.E. 343). "Waiver is based upon knowledge. It cannot be implied where the party in whose favor the right existed is ignorant of his right or of any fact which would substantially or materially affect the exercise of that right and tend to prevent a waiver." Plumer v. Continental Casualty Co., and Jones v. State, supra. The controlling question in this case seems to be whether the evidence offered by the plaintiffs in the trial court was sufficient to show a waiver by the company of the policy provision invoked by it. The policy provided that the double-indemnity feature would "cease to be in force" if the insured at any time should be "under enrollment in any branch of military or naval service in time of war." It was admitted that the insured was enrolled in the military service of the United States at the time of his death, and this court will take judicial notice of the state of war existing at that time. The provision of the policy as to double indemnity had ceased and was not in force when the insured died unless the acceptance of the premium on the policy by the company amounted to a waiver of the condition, and had the effect of keeping the policy provision in force. A semiannual premium of $27.68, broken down as follows: life premium, $25.10, disability, $0.63, and double indemnity, $1.95, was paid by the insured to the company on July 8, 1943, in a check for the total sum of $27.68. There was nothing on the check to indicate that it was in payment of any particular premium, or was in payment of the premium on any special kind of insurance, and there was nothing in the receipt issued by the company to indicate how the money was applied except that it was for the premium on a certain numbered policy on the life of the insured. The entry on the books of the company showed how the premium was credited and applied. The principal duty of the clerk in the office of the company to whom the premium was paid was to record all renewal premiums in a book kept for that purpose, and to make other entries in connection with the payment of premiums. It does not appear that the clerk knew the insured or knew that he was in the army. The insured was known by the president and by the secretary of the company, and they knew that the insured had been inducted into the army, but neither of them recalled when they first learned of his induction. The information possessed by D. B. Magruder (as shown in statement of facts), along with the knowledge of the insured's induction had by other company officials, was all the evidence relied on by the plaintiffs to show acceptance of the premium under circumstances which amounted to a waiver of the policy provision relating to military service. No other notice of the insured's military service was shown to have been conveyed to the company. Applying the principles of law cited to the facts of this case we hold that it was error for the court to say as a matter of law that the company waived the policy provision relied on by it, and to direct a verdict for the plaintiff.
Judgment reversed. Sutton, P. J., and Felton, J., concur.