National Life & Accident Ins. Co. v. Preston
| Decision Date | 22 September 1942 |
| Docket Number | 14136. |
| Citation | 22 S.E.2d 157,194 Ga. 583 |
| Court | Georgia Supreme Court |
| Parties | NATIONAL LIFE & ACCIDENT INS. CO. v. PRESTON. |
Wm F. Buchanan, of Atlanta, for plaintiff in error.
Hall & Bloch, of Macon, for defendant in error.
On October 11, 1941, National Life and Accident Insurance Company brought a suit in equity against Mrs. Amie R. M Preston seeking to cancel a policy of insurance issued on the life of James R. Preston, Senior, deceased, in which the defendant was the named beneficiary; seeking also a decree that the insurer's liability should be the amount of two premiums paid; and for such other relief as might seem proper. The defendant filed her demurrers, as amended, on the grounds: (1) That there was no equity in the petition. (2) That under the allegations the complainant is not entitled to the relief sought. (3) That a full and complete remedy is provided by law. The demurrers were sustained and the action dismissed. The plaintiff excepted.
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., 182 Ga. 704, 186 S.E. 735; Cook v. Volunteer State Life Insurance Co., 180 Ga 282 (3), 285, 178 S.E. 657; Penn Mutual Life Insurance Co. v. Childs, 189 Ga. 835, 7 S.E.2d 907; Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Cotton States Life Insurance Co. v. Cunningham, 141 Miss. 474, 106 So. 766; Aetna Life Insurance Co. v. Daniel, 328 Mo. 876, 42 S.W.2d 584; National Life & Accident Insurance Co. v. Propst, 219 Ala. 437, 122 So. 656. An exception to the rule stated above is recognized in cases where the policy contains a clause providing that it shall be incontestable within a specified time from the date of its issuance, 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. Lockett v. National Life & Accident Insurance Co., 193 Ga. 372, 18 S.E.2d 550; American Life Insurance Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605, 111 A.L.R. 1268; Jefferson Standard Life Insurance Co. v. McIntyre, 5 Cir., 294 F. 886 (3). "In the cases last cited the incontestable clause in each by the terms thereof made the incontestable period run from the date the policy was issued until a specified time, and there were no qualifying words making the incontestable clause applicable "after being in force [for such period] during the insured's lifetime." In the instant case the material portion of the incontestable clause reads as follows: "Except for nonpayment of premium when due, except for self-destruction as aforesaid, . . this...
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