22 S.E.2d 157 | Ga. | 1942
1. As a general rule, equity does not have jurisdiction of a suit by an insurer against a beneficiary of a deceased insured, to cancel a policy of life insurance on the ground that the insurance was procured upon false and material representations by the insured as to his physical condition and treatment by physicians, because the insurer has an adequate and complete remedy in defending such suit at law as may be brought upon the policy.
2. An exception to the rule stated above is recognized where the policy contains a clause providing that it shall be incontestable within a specified time from the date of the issuance of the policy, making it necessary for the insurer to proceed in equity to cancel the policy in order that the right to assert non-liability might not be endangered by lapse of time.
3. Where a policy of life insurance contains a clause that it "shall be incontestable after being in force during the insured's lifetime for a period of two years from its date of issue," such clause is inapplicable where the insured dies within such period, and is not a ground for intervention of equity by a suit to cancel the policy for fraud in its procurement.
4. The danger that witnesses may disappear and evidence be lost by delay in institution of action by the beneficiary of a life-insurance policy against the insurer is not a ground for intervention of equity, in view of the Code, § 38-1401 et. seq., providing for perpetuating testimony.
5. The judge did not err in sustaining the demurrers and dismissing the petition because the plaintiff had an adequate remedy at law.
The petition alleged, that the policy was issued on September 10, 1940; two quarterly premiums were paid; that the insured died on March 5, 1941; that certain representations by him as to his physical condition and treatment by physicians, made in his application attached to the policy, were false and material, by reason of which the policy was void; that the policy contains a clause which provides that "Except for non-payment of premium, except for self-destruction as aforesaid, . . this policy shall be incontestable after being in force during the insured's lifetime for a period of two years from its date of issue;" that the chief witnesses of petitioner are physicians and nurses, who may move or who may die, and whose testimony it is necessary that petitioner have in order to establish its right to relief; that petitioner offered to return to the beneficiary the two quarterly premiums, which she refused; that no suit has been brought by the beneficiary; and that petitioner has no adequate remedy at law.
As a general rule, equity does not have jurisdiction of a suit by an insurer against a beneficiary of a deceased insured, to cancel a policy of life insurance on the ground that the insurance was procured upon false and material representations by the insured as to his physical condition and treatment by physicians, because the insurer has an adequate and complete remedy in defending such suit at law as may be brought upon the policy. Barfield v. Pacific Mutual Life Insurance Co.,
Although in American Life Insurance Co. v. Stewart, supra, it was held: "No action at law having been brought on the policy, an insurer whose attack upon the ground of fraud is endangered by *586
the running of time limited by the policy for contest may sue in equity for cancellation," that case involved an incontestable clause with "the provision that the policy shall be incontestable after the lapse of two years," and is distinguishable from the present case, for the reasons above pointed out. But in the Stewart case, supra, the court in its opinion said: "`Where equity can give relief, plaintiff ought not to be compelled to speculate upon the chance of his obtaining relief at law.' Davisv. Wakelee,
Judgment affirmed. All the Justices concur.