223 Ga. 707 | Ga. | 1967
The appeal in this case is from an order of the Judge of the Superior Court of Fulton County enjoining and restraining the appellant from prosecuting an action on a sickness and accident insurance policy against the appellee in the Civil Court of Fulton County. It appears from the pleadings that the appellee, on August 4, 1965, issued to the appellant a policy of insurance insuring her against loss resulting from sickness contracted and commencing while the policy is in force and also against bodily injury resulting from accident occurring while the policy is in force. Attached to and made a part of the policy was the written application for insurance submitted by the appellant, containing answers to questions regarding the condition of her health at the time of and prior to the application. Appellee issued the policy in reliance upon the truthfulness of appellant’s answers to the questions contained in the application. The policy contained a clause rendering it incontestable after it had been in force and effect for a period of two years during the lifetime of the insured. On the 28th day of February, 1967,
We think that this contention of the appellant is meritorious. The suit at law in the Civil Court of Fulton County was commenced within two years from the date the policy was issued. While that court has no jurisdiction to grant affirmative equitable relief, it can entertain equitable pleas of a purely defensive nature. Hecht v. Snook & Austin Co., 114 Ga. 921 (41 SE 74); House v. Oliver, 123 Ga. 784 (1) (51 SE 722). Hence the appellee could have filed in the Civil Court of Fulton County the purely defensive plea that it was not liable on the claim because the policy sued on was void by reason of fraud in its procurement. If the defendant there had filed other defenses and the
Judgment reversed.