Epitomized Opinion

This is an action based upon a life insurance policy issued by the defendant company and an annuity contract in connection therewith. The prayer of the petition asks for a money judgment for $4,535, the amount upon which is based monthly payments of $25 per month to the plaintiff’s beneficiaries during her life, and asks that a provision of the contract, which provided for the placing of the amount of $4,535 in the hands of the defendant company to carry out the contract, and for further relief. The Insurance Company set up as a defense certain fraudulent statements on the part of the insured, charging wilful, false and fraudulent answers in the application on the part of the insured. It also claimed that these answers were material and that the company was induced to issue the policy on account thereof. At the trial the plaintiff made a motion for a jury trial, which was overruled upon the ground that the action- was one in equity. The lower court found for the Insurance Company, whereupon the plaintiff prosecuted error. In reversing the judgment of the lower court, the Court of Appeals held:

1. Whether an action is equitable or legal, and therefore triable to a jury, is determined by the issues presented by the pleadings and the relief required at the time of the trial.

2. Where recovery is sought against a fiduciary or trustee in which a specific amount is claimed and where no accounting is asked or required, the fact that the defendant occupies a fiduciary relation does not stamp the action as equitable and in such case if no 'other remedy cognizable in equity is sought and is needed to give full and adequate relief, the action is legal and not equitable, is for money only, and triable to ,a jury.

3. Where an Insurance Company sets up by way of answer that the contract of insurance was obtained by fraudulent representations on the part of the insured, this defense is legal.

4. Under the pleadings presented in this cause, the action was one at law and therefore the plaintiff was entitled to a jury trial.

Judgment reversed.