Interstate Life & Accident Co. v. Cooley

• Decision Date: 14 May 1928
• Docket Number: 27095
• Citation: 117 So. 267,150 Miss. 502
• Parties: INTERSTATE LIFE & ACCIDENT CO. v. COOLEY. [*]
• Court: Mississippi Supreme Court

117 So. 267

150 Miss. 502

INTERSTATE LIFE & ACCIDENT CO. v. COOLEY. ^[*]

No. 27095

Supreme Court of Mississippi

May 14, 1928

Division A

Suggestion of Error Overruled June 11, 1928.

APPEAL from circuit court of Jones county, Second district, HON. R S. HALL, Judge.

Action by Leona Cooley against the Interstate Life & Accident Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

L. B. Melvin, for appellant.

J. C. Smith, for appellee.

OPINION

MCGOWEN, J.

In this case, there was a judgment for the appellee, Leona Cooley, for the sum of two hundred five dollars against the appellant, Interstate Life & Accident Company, on a life insurance policy issued on the life of Hattie Porter, appellee's mother. No copy of the application of insurance was attached to the policy when delivered, and the case was submitted to the jury, upon the validity, or invalidity, of the release executed by Leone Cooley, the appellee, in favor of the appellant company, for a consideration of one dollar.

As this case must be reversed, we shall not discuss the facts in detail, save to say that the evidence of the plaintiff, the appellee, relied upon to show that the release secured by the agent of the defendant company by virtue of misrepresentation, is very weak. It was not shown whether the plaintiff could read or write, and her evidence is unsatisfactory. However, no peremptory instruction was requested.

For the giving of the following instruction by the court, this cause must be reversed:

"The court instructs the jury for the plaintiff, Leona Cooley, that, if they believe from the evidence that the plaintiff received and receipted for one dollar or an insufficient amount due her as beneficiary in the life policy herein sued on and surrendered same, relying solely on the statement of the defendant or its agent or agents respecting her rights thereunder, and which she since learns were untrue in law and fact, she is not bound by the purported receipt or release."

A critical examination of the record does not disclose to us that there was any evidence to the effect that the agent of the defendant company advised the plaintiff as to her rights and there is no evidence suggesting that she afterwards learned that the representations were untrue, or that she relied on same. She did testify that she signed the instrument without knowing its contents, and that she...