Mutual Benefit Health Accident Ass'n v. Ott, Jr.

ADAMS, J.: We have before us on appeal final decrees dismissing hills in equity in two cases. One is the case of Mutual Benefit Health and Accident Association v. John Henderson Ott, Jr., and Helen J. Ott, and the other is the ease of United Benefit Life Insurance *186 Company v. John Henderson Ott, Jr., and Helen J. Ott. The cases are identical in every respect except that the names of the insurers and the amounts set up in the policies are different. By written stipulation the cases are to be considered together under the two transcripts of record, but upon briefs and oral arguments applying equally to each case. In this opinion we will refer to the record in the case of Mutual Benefit Health and Accident Association and the other case will be disposed of upon authority of the opinion and judgment in this case. Appellant issued its contract of insurance on appellee, John Henderson Ott, Jr., insuring against death with additional protection of monthly disability benefits. Appellee, Helen J. Ott, was named beneficiary in the policy. Thereafter insured brought an action at law for disability benefits under the policy. Subsequent to the filing of the law action appellant filed suit in equity against both appellees for cancellation of the policy for fraud in the procurement of same. Various pleadings were filed, a temporary injunction was entered against insured from prosecuting further actions at law and the equity suit progressed to final hearing. During the pendency of the equity suit appellees caused the beneficiary to be changed (as they had a right to do) from Helen J. Ott to the estate of insured. Because of such change the chancellor held the bill without equity. The question is where a court of equity takes jurisdiction because the legal remedy is not full and adequate, can the parties defendant then, by their own act render the legal remedy full and adequate and thereby procure a dismissal of the equity suit which in effect relegates plaintiff to the law court? *187 .The chancellor held in effect that the matter was properly in the equity court until notice was given of change of beneficiary. This question has never been ruled upon in our state. The law appears universally settled on good authority as follows: “The test of the jurisdiction of a court of equity is whether facts exist at the time of the commencement of the action sufficient to confer jurisdiction on the court. If plaintiff is then entitled to the aid of equity the jurisdiction will not be defeated by subsequent events which render equitable relief unnecessary or improper, or where plaintiff has established his equity but the need for equitable relief has ceased pending suit or has become impossible, as distinguished from improper. This rule is applicable, not only where the relief sought is prevented by act of the defendant, but also where the change of circumstances arises from lapse of time, rendering the specific relief unsuitable or inequitable.” 30 C.J.S., 430. Federal Reserve Bank of Chicago v. Geannoulis, 203 Iowa 1385, 214 N.W. 576; Beedle v. Bennett, 122 U.S. 71, 30 L. Ed. 1074, 7 Sup. Ct. 1090; Dawson v. Kentucky Distilleries Company, 255 U.S. 288, 65 L. Ed. 638, 41 Sup. Ct. 272; Jefferson Standard Life Insurance Company v. Keeton, 292 Fed. 53; Oregon Growers’ Co-op. Ass’n. v. Riddle, 116 Oregon 562, 241 Pac. R. 1011. Upon authority of Isom v. The Equitable Life Assurance Society, 138 Fla. 260, 189 So. 253, the equity court was a proper forum. The decree is reversed for further proceedings consistent with law and equity. BROWN, C. J., TERRELL and THOMAS, JJ., concur. *188 WHITFIELD, BUFORD and CHAPMAN, JJ., dissent.