The trial court, however, was not the agent of the insured person, and when an insurance company elects to participate in a trial by defending the action without giving such "reservation of rights" notice, then it is estopped to later contend the insurance is not effective. See Jones v. Ga. Cas. c. Co., 89 Ga. App. 181, 185 ( 78 S.E.2d 861); State Farm Mut. c. Ins. Co. v. Anderson, 104 Ga. App. 815, 818 ( 123 S.E.2d 191); s.c., 107 Ga. App. 348 (2) ( 130 S.E.2d 144). 5.
The court answered this question in the affirmative citing Johnson v. Aetna Ins. Co., 123 Ga. 404 (2) ( 51 S.E. 339): "`Limitations in an insurance policy upon the authority of the agent of the company to waive the conditions of the contract of insurance are to be treated as referring to waivers made subsequently to the issuance of the policy.'" The case of State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348 ( 130 S.E.2d 144), involves an application for insurance that did not contain a limitation of the agent's authority but yet the harsh rule which heretofore had been reserved for the cases where the applicant had been put on notice of a limitation of authority was involved. Brannon v. Allstate Ins. Co., 120 Ga. App. 467 ( 171 S.E.2d 319) involved the same situation as in State Farm Mut. Auto. Ins. Co. v. Anderson, supra.
of Appeals on the present appeal. Held: 1. On the first appearance of this case in the Court of Appeals it was held that for the insurer to be relieved of its contractual obligation because of the alleged failure of the insured to co-operate in the defense of the original action against the insured by failure to appear and co-operate at the trial, there must be a wilful and intentional refusal to co-operate, citing National Union Fire Ins. Co. v. Carmical, 99 Ga. App. 98, 104 ( 107 S.E.2d 700); and State Farm Mut. Auto. Ins. Co. v. Wendler, 117 Ga. App. 227, 231 ( 160 S.E.2d 256). It was also held that where an insurance company elects to participate in a trial by defending an action without giving a "reservation of rights" notice to the insured, that it is estopped to later contend that the insurance is not effective, citing Jones v. Ga. Cas. c. Co., 89 Ga. App. 181, 185 ( 78 S.E.2d 861), and State Farm Mut. Auto Ins. Co. v. Anderson, 104 Ga. App. 815, 818 ( 123 S.E.2d 191); s. c. 107 Ga. App. 348 (2) ( 130 S.E.2d 144). These holdings became the law of the case. 2.
DECIDED SEPTEMBER 5, 1963. Certiorari to the Court of Appeals of Georgia — 107 Ga. App. 348 ( 130 S.E.2d 144). Mitchell Mitchell, for plaintiff in error.
However, "where it is shown that a material statement in an application is false which was known to the insured at the time he made it and it was made with a view toward obtaining the insurance, with the company having no knowledge of its falsity, where the company acted upon it to its injury, the law will conclusively presume an intent to deceive, and a case of actual fraud will be made out." State Farm c. Ins. Co. v. Anderson, 107 Ga. App. 348, 354 (3) ( 130 S.E.2d 144) (1963). Appellant's application for the subject policy lists his name and IBTA's name in the spaces marked, respectively, "employee" and "employer.
State Farm Mut. Auto. Ins. Co. v. Anderson, 104 Ga. App. 815 ( 123 S.E.2d 191). Accord: Jones v. Georgia Cas. c. Co., 89 Ga. App. 181 ( 78 S.E.2d 861); State Farm Mut. Ins. Co. v. Anderson, 107 Ga. App. 348, 351 (2) ( 130 S.E.2d 144)." Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga. App. 41, 43 ( 134 S.E.2d 886).
Appellant also urges that the verified allegations in Ms. Burgener's divorce complaint constitute judicial admissions as to the paternity and legitimacy of the child and estop her from asserting a contrary position in this abandonment action. Statements in pleadings are considered as judicial and not as evidential admissions, and for these purposes, until withdrawn or amended, are conclusive. Wood v. Claxton, 199 Ga. 809 (1) ( 35 S.E.2d 455) (1945); State Farm c. Ins. Co. v. Anderson, 107 Ga. App. 348, 353 ( 130 S.E.2d 144) (1963). However, "`[e]stoppels by admissions made in pleading apply only between parties and privies to the suit or litigation in which the admissions relied on as an estoppel were made.' [Cits.
In Tallent the applicant signed an application in blank while here the applicant signed the form in a completed state and is bound by the answers to the questions appearing on it." State Farm c. Ins. Co. v. Anderson, 107 Ga. App. 348, 350 ( 130 S.E.2d 144). 5. Having concluded that the application for insurance signed by Mrs. Bridges' late husband contained knowing and material misrepresentations, we hold that recovery under the policy is prevented by Code Ann. § 56-2409.
State Farm Mut. Auto. Ins. Co. v. Anderson, 104 Ga. App. 815, supra. Because he notified his insurer that he did not agree to a defense under a reservation of rights, appellant-insured would have us hold that the insurer by filing an answer had waived its rights, that the rights of the parties thereby accrued, and that therefore the insurer was not entitled to seek declaratory relief. Appellant relies on what is obstensibly the holding of a majority of jurisdictions requiring the consent of an insured to a defense under a reservation of rights, and in further support of his position cites to us our cases of State Farm Mut. Auto. Ins. Co. v. Anderson, 104 Ga. App. 815, supra, and State Farm Mut. Auto. Ins. Co. v. Anderson, 107 Ga. App. 348 (2) ( 130 S.E.2d 144). In neither of these cases did this court reach the question of the necessity of an insured's consent.
This is a period of slightly over five months during which the insurer's attorneys answered the tort action (June 8), sought discovery, and were in charge of the defense. If the agreement entered into on June 8 covers a reservation of rights in regard to the defense of the action, there can be no estoppel. State Farm Mut. c. Co. v. Anderson, 107 Ga. App. 348, 351 ( 130 S.E.2d 144), but, as stated there and in the former appearance of the case ( 104 Ga. App. 815 ( 123 S.E.2d 191)), the notice must be "timely and sufficient." A different situation obtained in Gant v. State Farm c. Co., 109 Ga. App. 41 ( 134 S.E.2d 886), but there are relevant rulings to the effect that an insurer who assumes and conducts a defense with knowledge of a ground of forfeiture and without "proper notice" of a reservation of rights estops itself.