This is an appeal from an order dissolving a temporary restraining order and refusing an injunction. The bill sought cancellation of two policies of insurance and an injunction against the prosecution in the courts of South Carolina of four actions at law which had been instituted to recover disability benefits thereunder; relief "being asked on the ground of alleged false representations and fraudulent concealments in the application upon which the policies were issued. Injunction was denied on the grounds that the amount necessary to federal jurisdiction was not involved and that complainant had an adequate remedy at law.
The pertinent facts, as set forth in the bill and exhibits, may he briefly stated. The two policies, which were ba-sed on the same application, were issued January 20, 1925. Both provided for monthly payments to the insured in the event of total disability, one in the sum of $200 per month and the other in the sum of $300' per month. The latter provided also for the payment of $5,000 to the wife of insured in ease of his death as result of accident during the life of the policy. Premiums were paid on both policies until March 1,1927, when insured applied for, and was allowed, disability benefits, which were paid by the company until April, 1933, and resulted in the payment of a sum in excess of $29,000.
In the early part of 1933 the company discovered that insured, in an application to the government in connection with a policy of war risk insurance, had made statements as *874 to his health and physical condition inconsistent with statements made in the application to it for the policies in question, and thereupon refused to make further payments under the policies. Following this, the insured instituted four actions against the company. Two of these, for the sum of $500 each with $2,400 punitive damages, were filed in the court of common pleas of Greenville, S. C., to cover the monthly benefits claimed to be due for the months ending May 17th and June 17th, respectively. Two for $500 each were instituted in the county court of Green-ville county covering monthly benefits for the months ending July 17th and August 17th. These actions were instituted June 1st, June 23d, July 18th, and August 18th, respectively; and in each of them the company filed answer setting up as a defense the fraudulent misrepresentations and concealments relied on in the bill in this suit.
This suit was instituted by the company on September 27, 1033, against the insured and his wife, who was beneficiary under the accidental death provision heretofore mentioned. The bill prayed the cancellation of both policies on account of alleged fraudulent representations and concealments in the application, and asked injunctive relief against the prosecution in the state courts of the actions whieh had been there instituted and against the institution of further actions of like character.
We agree with appellant that the ease involves the amount requisite to federal jurisdiction. What is asked by the bill is not merely that prosecution of the suits which have been instituted be restrained, but also that the policies be canceled and surrendered. As one of the policies provides for the payment of $5,000 in ease of accidental death, and as the monthly payments for disability amount to $500 per month, whieh under the terms of the policies is to continue throughout the life of the insured, there would seem to be no question as to more than $3,000 being involved. But we agree with the learned judge below that the appellant has an adequate remedy at law for the matters of which it complains, and that the injunction was properly denied for that reason. Not only is the remedy at law adequate, but it appears that appellant has availed itself of this remedy by pleading as a defense to the actions which have been instituted against it the fraudulent representations and concealments in the application which it has alleged in its bill. When the issue thus raised is determined in any one of these actions, it will constitute an estoppel as between the parties whieh can be availed of in all of the others. Thus, without multiplicity of suits, the remedy which plaintiff seeks may be obtained without difficulty in any one of the law actions pending, and the trial by jury guaranteed by the Constitution (Const. Amend. 7) will not be impaired by unnecessary resort to equity.
The general rule, whieh has been long established, is that, after the right to recover on a policy of insurance has matured, equity will not ordinarily take jurisdiction of a suit to cancel it on the ground of fraud, and this for the reason that the company has an adequate remedy at law in its right to defend on that ground any action which may be instituted on the policy. Phoenix Mutual Life Ins. Co. v. Bailey,
A special circumstance justifying the exercise of equitable jurisdiction is presented where the policy contains an incontestable clause and the period of contestability has not expired but may expire before the defense „of fraud can be established in an action brought to recover on the policy. In such ease equity will grant relief, as otherwise the company might be without remedy. Jefferson Standard Life Ins. Co. v. Keeton (C. C. A. 4th)
The policies here, however, contain no incontestable clause. Reference has been made to sections 7986 and 7987 of the South Carolina Code of 1932, which prescribe an incontestable period of two years for life insurance policies. There is a question as to whether this statute applies to the disability instiranee features of policies; hut the question need not be answered here, as equity jurisdiction would not exist in any event. If the limitation of the statute bo applicable, it is clear that it had already run at the time of the institution of the suit, as the policies were issued in January, 1925, and the suit for cancellation was not commenced until September, 2933. In that case, the policy would have become incontestable before suit, and the company would have no rights as to contestability for equity to protect. If it ho not applicable, then there is no limitation on contestability and no reason for equity to intervene lest the policy become incontestable as a result of the company’s inaction.
The argument is made with reference to the policy containing the accidental death provision that equitable intervention is necessary to protect the rights of the company against the rights of the wife as beneficiary under that provision, as she would not be concluded by any judgment rendered in a suit between the insured and the company on the disability provisions of the policy. For this position, Brown v. Pacific Mutual Life Ins. Co., supra, and New York Life Ins. Co. v. Halpern (D. C.)
Nor is there ground for invoking equitable jurisdiction to avoid multiplicity of suits. Without going into the troublesome question as to when jurisdiction in equity to avoid multiplicity of suits exists and the varous limitations upon that doctrine, it is sufficient to say that it can have no application where the only multiplicity apprehended is that of suits for successive payments due under a contract attacked on the ground of fraud; for the invalidity of the contract on this ground can he determined in any one of the suits, and the determination of the issue thus presented will be binding upon the parties in the others upon the principle of res adjudicata when pleaded and relied on there. As to estoppel by judgment first obtained in co-pending actions, see Kline v. Burke Construction Co.,
As said by the Supreme Court in Matthews v. Rodgers,
For the reasons stated, the order appealed from will be affirmed; and, as we are of opinion that the bill is without equity, the court below will enter a further order dismissing it.
Affirmed.