Opinion
32504.
DECIDED MAY 25, 1949.
Complaint on Life policy; from Chatham Superior Court — Judge D. S. Atkinson. March 11, 1949.
Louis W. Dawson, Bouhan, Lawrence Williams, for plaintiff in error.
Anderson, Connerat, Dunn Hunter, contra.
1. ( a) Where the facts upon which the rights of parties depend are within common experience and knowledge, the courts will take judicial cognizance of them. Matters of public history concerning the United States and affecting the whole people will be judicially noticed. Our courts will take judicial cognizance of the beginning, the existence, and the ending of all wars in which our country has participated. See 20 Am.Jur., Evidence, 83, § 62; Kline Car Corp. v. Watkins Motor Co., 26 Ga. App. 338 ( 106 S.E. 211); Williams v. State, 67 Ga. 260.
( b) An insurance policy is a simple contract, the provisions of which should be construed as any other type of contract. See Caruso v. John Hancock Mutual Life Ins. Co. (N. J.) 53 A.2d, 222.
( c) The construction of an unambiguous contract is a question of law for the court (see Code § 20-701), and the cardinal rule of construction is to ascertain the intention of the parties. See Code § 20-702.
( d) Where an insurance policy contains a clause obligating the insurance company to pay double indemnity if the insured meets his death as a direct result of bodily injuries under certain circumstances, and excepts from said clause the double-indemnity liability if the insured meets his death as the direct result of military or naval service in time of war, or from any act incident to war, it discloses that the manifest intention of the parties was to relieve the insurance company from double-indemnity liability while the insured is engaged in the hazardous occupation of military or naval service in time of war, in the event he meets his death as the direct result of such service or as the direct result of an act incident to war. Since this hazard subsided upon the unconditional surrender of our enemies, the military and naval service exception clause contained in the double-indemnity provision of the policies in the instant case ceased to apply after such surrender.
( e) In order for a happening to be an act incident to war within the meaning of the military or naval service exception clause of the double-indemnity provision of the insurance policies in the instant case, there must have been a war in existence at the time of such happening.
2. Where a double-indemnity provision of an insurance policy contains an exception-status clause by which it becomes inoperative if the insured enters the military service, the acceptance of additional sums as premiums for double indemnity with knowledge that the insured is in the military service may constitute a waiver of the exception and estop the company from pleading it. See Harmon v. State Mutual Ins. Co., 202 Ga. 265 ( 42 S.E.2d 761). However, where the insurance policy contains an exception-result clause by which double indemnity becomes inoperative if the insured meets his death from bodily injuries as the direct result of military or naval service in time of war, or from an act incident to war, the exception clause, as here, does not preclude the insured from double indemnity upon accidental death resulting from bodily injuries in time of war and while serving in the military or naval forces except where he meets his death as the result of such service or as the result of an act incident to war. There are other ways in which he might meet his death while he is in the military or naval forces and in time of war and yet be entitled to double indemnity under the terms of such a policy. The insured therefore, under the terms of such a policy receives beneficial insurance protection for the added premiums for double indemnity, and the company will not be estopped from pleading that the death of the insured occurred as the result of military or naval service in time of war, or as an act incident to war, although the insurance company had actual knowledge that the insured was in the military or naval service in time of war when it accepted additional premiums covering double indemnity.
DECIDED MAY 25, 1949.
The defendant in error, Louise H. Davis, herein referred to as the plaintiff, brought suit for double indemnity on two insurance policies against the plaintiff in error, Mutual Life Insurance Company of New York, herein referred to as the defendant.
The first count of the petition as amended alleges substantially: that in October, 1935, the plaintiff's husband procured two identical insurance policies from the defendant, each of which obligates the defendant to pay the plaintiff as beneficiary $1000 upon the death of the insured, subject to certain conditions stipulated in said policies, a copy of one of which is attached to the petition and made a part thereof; that on August 19, 1945, the insured, while serving as a Lieutenant Colonel in the Army of the United States, was killed as the result of the explosion of an ammunition dump in Dorneigham, Germany; that the policies of insurance contained a provision as follows: "The double indemnity will be payable . . the insured died as a direct result of bodily injuries . . provided that the double indemnity shall not be payable if death resulted . . from military or naval service in time of war, or from any act incident to war . ."; that hostilities ceased in Europe on May 8, 1945, and in Japan on August 15, 1945; that single indemnity on each policy has been paid and accepted without prejudice as to the rights of either party with reference to the claim of double indemnity.
The allegations of the second count of the petition are substantially the same as those of the first count with additional allegations substantially as follows: that the defendant had actual knowledge, at least from October 3, 1944, until the date of his death, that the insured was on active duty in the Army of the United States; that the defendant with said knowledge collected from the insured, in addition to the premiums for single indemnity, the additional premiums for double indemnity; and that by reason thereof the defendant is estopped to deny double-indemnity coverage and is estopped to plead the military exception, reference to which has hereinbefore been made.
The defendant demurred specially to that part of the petition contained in both counts alleging that the war with Japan was over August 15, 1945, contending that said allegations constitute conclusions of the pleader which are in direct contradiction of the known historical facts to the contrary, of which the court is bound to take judicial cognizance. The defendant also demurred specially to that part of the second count of the petition which alleges that the defendant was estopped, on the ground that the same was an erroneous conclusion of law. General demurrers were interposed to both counts. The exceptions here are to the judgment overruling the demurrers, both general and special.
(After stating the foregoing facts.) 1. As pointed out in the very comprehensive memorandum opinion of the trial court, as well as in the briefs of counsel for both parties, this case turns as to count one on the question of whether or not World War II was over, within the meaning of the military and naval service exception to the double-indemnity provision of the policy, set forth in part in the foregoing statement of facts, on August 19, 1945, the date of death of the insured. Also counsel for both sides have correctly taken the position that this is a matter of which the courts will take judicial cognizance. See 20 Am. Jur., Evidence, 83, § 62; Kline Car Corp. v. Watkins Motor Co., 26 Ga. App. 338 (supra); Williams v. State, 67 Ga. 260.
The allegations of the petition which negative facts, the truth of which it is the duty of the court to take judicial cognizance, must be disregarded. See Southern Ry. Co. v. Covenia, 100 Ga. 46 ( 29 S.E. 219, 40 L.R.A. 253, 62 Am. St. R. 312). In determining therefore whether or not World War II had ended on August 19, 1945, within the meaning of the clause of the insurance policies constituting the subject-matter of this litigation, this court must look to the historical facts as well as to the allegations the contained in the petition. Also, in determining this question, the construction of the insurance clause under consideration is most material. An insurance policy is simply a contract, the provisions of which should be construed as any other type of contract. See Caruso v. John Hancock Mutual Life Ins. Co., (N. J.) 53 A.2d, 222. The construction of an unambiguous contract is a question of law for the court. See Code, § 20-701 The cardinal rule for construction is to ascertain the intention of the parties. See Code, § 20-702. Therefore, it becomes most material to determine why the double-indemnity provision of the policies, containing the military or naval service exception, was inserted in the policies and what was the intention of the parties with reference to it. Military or naval service in time of war is recognized as a hazardous occupation. This extreme danger exists because in time of war opposing military and naval forces are constantly attacking each other in an all-out effort to accomplish utter destruction. This hazard either does not exist at all or exists to a very limited extent at a time when the shooting war is over and the state of warfare continues to exist only because of the lack of completion of negotiations of the terms of peace. The military or naval service exception clause contained in the policies in the instant case attached on December 7, 1941. As was held in New York Life Ins. Co. v. Bennion, 158 Fed. 2d, 260, "When one sovereign nation attacks another with premeditated and deliberate intent to wage war against it, and that nation resists the attacks with all the force at its command, war in the grim sense of reality exists and courts are not required to wait on formalities before recognition of the fact." As was held in the Bennion case, in construing a clause of an insurance policy similar to the one here under consideration, it was not necessary to wait for the formal declaration of war in order for the grim reality of war to exist, and thus deny double indemnity.
On the other hand, the Emperor of Japan unconditionally surrendered to the United States and her allies on August 15, 1945. With that the shooting war was over, the hazard against which the military and naval exception clause protecting the defendant ended, and as decidedly as it attached on December 7, 1941, it became detached on August 15, 1945. In Johnson v. Mutual Life Ins. Co., of New York, 154 Ga. 653 (4) ( 115 S.E. 14), it is held as follows: "Under a policy in which the insurer agrees to pay double indemnity in case of the death of the insured resulting from bodily injury effected solely through external, violent, and accidental means, a provision, `that this double indemnity shall not be payable in the event of the insured's death as a result of military or naval service in time of war, . . nor if such death be caused directly or indirectly, wholly or partly, by . . war, or any act incident thereto,' will not relieve the insurer from liability, when the death of insured did not result from his service in the military in time of war, or where his death was not caused directly or indirectly, wholly or partly, by war, or by some act incident thereto." See New York Life Ins. Co. v. Durham, 166 Fed. 2d, 874; Stinson v. N. Y. Life Ins. Co., 167 Fed. 2d, 234.
It is contended by counsel for the defendant that, even should it be held that the war was over within the meaning of the military and naval service exception provision of the double-indemnity clause of the policies, the petition nevertheless shows on its face that the death of the insured was from an act incident to war within the meaning thereof. Since there was no war, on the date of the explosion which caused the death of the insured, for the act to be incident to, this contention is without merit.
The judgment of the trial court overruling all demurrers aimed at count one of the petition is without error.
2. It is contended by counsel for the plaintiff that count two of the petition sets forth a cause of action, because the acceptance of the added sums to the premiums for double indemnity by the defendant with knowledge of the fact that the insured was in the military service amounted to a waiver of the military and naval service exception provision of the double-indemnity clause, and estopped the defendant from pleading the same. They cite in support of this contention Harmon v. State Mutual Insurance Co., 202 Ga. 265 ( 42 S.E.2d 761). This case is also cited in the written memorandum opinion of the trial judge together with certain foreign decisions. It is to be observed however that in the Harmon case the double-indemnity clause of the policy became inoperative (in the absence of certain waiver) "If the insured entered the military service." In the instant case, the military and naval exception to the double-indemnity clause is somewhat similar to that in Johnson v. Mutual Life Ins. Co., supra. Here, as in the Johnson case, there are circumstances under which the insured might meet accidental death resulting from bodily injuries in time of war and while he was in the military or naval forces, and at the same time the double-indemnity clause be of force. It being a result clause rather than a status clause, it matters not that he was in the military service in time of war.
Had he met accidental death under such circumstances, but death did not result from said military or naval service in time of war, or from any act incident to war, but resulted in some other way, the double-indemnity clause would apply. Therefore he received beneficial insurance protection for the added premiums in accordance with the policies, and the acceptance thereof by the defendant did not constitute a waiver of the military or naval service exception to the double-indemnity clause. It follows that the defendant is not estopped to plead the exception, and that the judgment of the trial court overruling the demurrers to the second count of the petition is therefore error.
The case is affirmed in part and reversed in part. The trial court is directed to sustain the demurrers to the second count of the petition and dismiss the same.
Judgment affirmed in part and reversed in part. MacIntyre, P. J., and Gardner, J., concur.