Bankers' & Planters' Mutual Insurance v. Archie , 145 Ark. 481 ( 1920 )

Hart, J.

(after stating the facts). We set out the testimony somewhat in detail because it is earnestly insisted hv counsel for the defendant that the evidence is not sufficient to support the verdict.

It was the contention of the plaintiff that the compromise was effected by fraudulent conduct and misrepresentation on the part of Bohlinger. Counsel ,for the deféndant insists that there is no testimony upon which to submit this question to the jury, and this in contention we think counsel is correct. In her application, the insured stated her age to be under fifty-five. Persons over the age of fifty-five were not eligible to membership in the association, and benefit certificates could not be issued to them. Ed. Archie admitted that he stated her age in the proof of death to have been sixty at the time she applied for membership in the association. He said that the physician who was helping to make out the proof of death said that her age was not material, and that, because he did not remember her age at the time, he stated that she was born in 1854; when in truth $he had not been bom until October 8, 1861. This, however, was sufficient for a bona fide contention as to whether she had stated her age correctly in her application for insurance, and the association had a right to investigate the question and to make a compromise of the matter if it in good faith believed that her age had been misrepresented in the application. The compromise of a disputed claim furnishes sufficient consideration to uphold the terms of a compromise, even though the asserted claim is without merit and could not have been sustained in the courts. First Natl. Bank of Mena v. Allen, 141 Ark. 328.

The only testimony which it is insisted tends to show that the compromise was effected by fraud is that the agent went to Archie and told him that the representations made by him in the proof of death to the effect that Mary Archie was born in 1854 rendered the policy void.

It is insisted that this contention made to an illiterate negro was a badge of fraud. We do not think so. There is nothing to indicate that the agent in any way overreached Archie or made any false representations to him in order to effect the compromise. The offer was made in good faith, and the record shows that there was a dispute between the parties on the question of the age of the applicant at the time the benefit certificate was issued. There is nothing in the record to show that the contention of the company was not made in good faitli, and the fact that it was made to an illiterate negro does not constitute a badge of fraud. If such was the case, the company could not compromise at all in a ease like this. We do not think the evidence warranted the submission of the issue of fraud in securing the compromise to the jury, and for the error in so doing the judgment must be reversed.

'The plaintiff has been paid the full amount of the compromise, and the cause of action will be dismissed.