
    METROPOLITAN LIFE INSURANCE CO. v. JOHNSON.
    No. 12852.
    June 15, 1939.
    
      Smith, Smith & Bloodworth, William II. Smith, and Weehes & Candler, for plaintiff in error.
    
      John A. Dunaway and Talmadge, Eraser & Camp, contra.
   Reid, Chief Justice.

Ernest P. Johnson instituted suit on two policies of life insurance issued by Metropolitan Life Insurance Company, to recover past-due and unpaid monthly instalments for permanent disability and benefits. Each policy provided for a waiver of premiums in case of total disability. The defendant answered, denying liability on the ground that the cause of the disability was pulmonary tuberculosis from which the insured was in fact suffering at the time the policies were issued. It prayed for a judgment against the plaintiff for $10,767, representing total-disability benefits which it had theretofore paid by reason of said disability on claim made thereunder, alleging that the plaintiff intentionally, wilfully, and fraudulently concealed and misrepresented the origin of said disease, and that on account of said false and fraudulent misrepresentations the plaintiff had obtained from it the payment of said total disability benefits in the past in the amount set out above; and further prayed “that said policies of life insurance and each of them be declared lapsed and out of benefit for non-payment of the premiums falling due thereon on August 10, 1928, and for non-payment of the subsequent annual premiums due on said policy.” The verdict was for the plaintiff. The defendant excepted to the overruling of its motion for new trial.

The present suit is an action at law, and not one in equity, and therefore should be transferred to the Court of Appeals.

All the Justices concur.  