Remmel v. Griffin

• Decision Date: 07 January 1907
• Citation: 99 S.W. 70,81 Ark. 269
• Parties: REMMEL v. GRIFFIN
• Court: Arkansas Supreme Court

99 S.W. 70

81 Ark. 269

REMMEL v. GRIFFIN

Supreme Court of Arkansas

January 7, 1907

Appeal from Sevier Circuit Court; James S. Steel, Judge; reversed.

Reversed and remanded.

Otis T Wingo, for appellant.

It is admitted that the appellee was of sound mind and business ability, and was able to read and write with ease. It was his duty to examine the policy on receiving it, or within a reasonable time thereafter. Failing therein, he must abide the consequences of his own negligence. 31 Ark. 170; 7 Ark 167; 30 Ark. 686; 11 Ark. 58; 26 Ark. 28; 19 Ark. 522; 22 Ark. 244.

OPINION

BATTLE, J.

This is an action on a note executed by W. A. Griffin to R. M. Carter, or order, for the sum of $ 78.96, on the second day of September, 1903, and due on the first day of December, 1903, and transferred by Carter to H. L. Remmel. The action was brought by Remmel against Griffin.

The defendant, answering, admitted the execution of the note, but alleged that it was given in payment of the first year's premium on a policy of insurance, and that the policy delivered was not such as that for which he contracted.

In the trial before a jury the defendant testified as follows: "About the first of September, 1903, R. M. Carter, an agent of the insurance company, sold me a policy of insurance. It was to be a ten-pay policy for $ 2,000. I executed the note sued on, * * * gave this note in payment of the first premium on the policy I was to receive. Relying upon the agent to give me the policy promised, I signed the application without reading it to see what kind of a policy it called for, further than to see that it was a ten-payment policy. I did not examine the policy when it came to see if it was the kind promised, but signed the receipt attached to the deposition of Mr. Lewis without reading or examining the policy. I did not examine the policy until a month or so after I received it, and then for the first time noticed that it was not a ten-pay policy, as I had expected, but instead it was a twenty-pay twenty-year distribution policy. I returned the policy in a few days, but Mr. Carter returned it to me, advising me that it could not now be canceled, as it was in force for one year, and that the note, which was then due, would have to be paid. I am 40 years old, a tie contractor by occupation, and can both read and write with ease."

The court instructed the jury over the objection of the plaintiff as follows:

"Gentlemen of the Jury: This is an action on a note given by the defendant for the first year's premium on...