April 14, 1928. The opinion of the Court was delivered by This is an action commenced in the County Court for Greenwood County by service of a summons and complaint on the 10th day of February, 1925. The complaint alleges the issuance by appellant to respondent two policies on the life of Mrs. Mattie C. DeVore, the wife of the respondent. The complaint set up two causes of action, the policy of date May 7, 1923, for $112, and policy of date December 8, 1924, for $165. The complaint was based on the two policies of insurance, and alleges death of insured, waiver of proof of death, and refusal of payment. The appellant tendered respondent full amount of the first policy and one-half of the other policy, which tender the respondent refused to accept.
After suit was brought the appellant paid respondent the full amount due on the first policy. This left as the sole issue the amount due under the policy of date December 8, 1924.
The answer of the appellant set up three defenses which were: (1) Fraudulent representation and concealment of her name and age in order to secure the policy of date December 8, 1924, in violation of the terms of the policy. (2) Fraudulent concealment and misrepresentation of her physical condition in application for the issuance of the policy of date December 8, 1924. (3) That under the terms of the said policy it is provided that in the event of death of the *Page 419 insured during the first twelve months from date of insurance of said policy resulting from certain diseases mentioned in the policy, the amount due thereon was limited to one-half of the face amount of the policy, and that the insured died within twelve months from date of issuance and died from one of the diseases excepted in the policy and that one-half of the face of the policy was the full amount due.
The first policy contained no limitation of liability in case of death from certain diseases, and the appellant paid the full amount. The defendant at the close of its testimony withdrew the first and second defenses set out in the answer.
The exceptions are:
"(1) That his Honor erred in allowing the plaintiff, over the objection of the defendant, to testify as to statements and conversations of the agent of defendant at time of delivery of the policy, the error being that the testimony so admitted permitted the plaintiff to change his action, which he brought on a written contract of insurance to an oral contract.
"(2) That his Honor erred in allowing the plaintiff, over objection of defendant, to testify as to statements and conversations of the agent of defendant at time of delivery of policies; the error being that the parol testimony so admitted varied and contradicted the terms of the written contract.
"(3) That his Honor erred in refusing to construe the contract; the error being that the contract was free of all ambiguity or doubt and the Court should have construed it.
"(4) That his Honor erred in refusing to direct a verdict in favor of the plaintiff for the sum of $82.50, one-half of the face of the policy; the error being that it was admitted that the insured died within twelve months from date of issuance of the policy and died from one of the diseases excepted in the policy and under the terms of the policy the liability of the defendant was limited to one-half of the face of the policy. *Page 420
"(5) That his Honor erred in submitting to the jury the issue of waiver; the error being that there were no acts or conduct on the part of the defendant warranting the submission of an issue of waiver."
Exceptions 1 and 2 are overruled.
Parol testimony is permissible to explain ambiguity in a written instrument. Breedin v. Smith, 126 S.C. 346;120 S.E., 64. Cooper Griffin v. W.C. Cooke Co., 122 S.C. 314;115 S.E., 312.
In the latter case the Court stated the rule as follows:
"While it is unquestionably true that the construction of a written instrument, ordinarily, is a question to be determined by the Judge, and not by the jury, nevertheless that rule is not applicable when the writing is incomplete, or its provisions susceptible of more than one inference. In such cases parol testimony is admissible, and the inference must be drawn by the jury, under proper instructions from the presiding Judge."
An agent selling and delivering an insurance contract can waive certain provisions. Hughes v. Insurance Co., 130 S.C. 383;126 S.E., 125. Madden v. Insurance Co., 70 S.C. 295;49 S.E., 855. Pearlstine v. Insurance Co., 74 S.C. 246;54 S.E., 372. Graham v. Insurance Co., 48 S.C. 195,223; 26 S.E., 323; 59 Am. St. Rep., 707.
Respondent contends that the testimony was inadmissible because the complaint did not allege waiver. The plaintiff was not required to anticipate the defenses and allege waiver in the complaint. Waiver can be proven without having been alleged. Copeland v. Western Assurance Co., 43 S.C. 26;20 S.E., 754. Kingman v. Insurance Co., 54 S.C. 599;32 S.E., 762.
Exceptions 3, 4 and 5 are overruled.
The matter was properly submitted to the jury for two reasons: (1) Conflicting testimony as to the construction of an ambiguous written contract presents a jury question. The ambiguity in the instrument itself, when the conflicting *Page 421 provisions are compared is patent. Furthermore, it was construed in one manner by M.M. DeVore as shown by the testimony of J.B. DeVore, and in another manner by the witness White, secretary of the company. Cooper Griffinv. Cooke, 122 S.C. 314; 115 S.E., 312.
2. Waiver is always a jury question. There were three distinct facts presented by plaintiff tending to show waiver of the limitation to one-half benefits under certain conditions, any one of which was sufficient to send the case to the jury.
All exceptions are overruled, and judgment affirmed.