33 S.E.2d 105 | Ga. Ct. App. | 1945
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 *118 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.
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,
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 *121
other reasonable explanation." Plumer v. Continental CasualtyCo.,
Judgment reversed. Sutton, P. J., and Felton, J., concur.