A policy of insurance in the principal amount of $300 was written by defendant on the life of one Harriet Harris. It was dated November 21, 1927, and Madie Harris, plaintiff herein, was the designated beneficiary.
Insured died on December 15, 1934. Subsequently, this suit was instituted with the view and purpose of recovering the above-named principal amount, together with certain alleged premium overpayments, and also interest and attorney's fees.
Defendant filed an exception of no cause or right of action and a plea of res judicata. These were overruled. It then answered.
The case was tried on its merits and there was judgment in plaintiff's favor for $300, together with 6 per cent. interest thereon from judicial demand until paid. The demands of plaintiff for attorney's fees and for the return of premiums were rejected. Defendant appealed from the judgment. Plaintiff neither appealed nor tendered answer to the appeal prosecuted by defendant.
The several pleadings filed by defendant and the brief of its counsel disclose that resistance of plaintiff's demands is founded on the following contentions:
(1) That under date of October 9, 1933, the insured accepted and received from defendant the sum of $72.96 in full settlement of its liability under the contract declared upon, and executed a written release therefor.
(2) That the age of the insured was misstated at the time of the issuance of the policy, and that such misstatement was made for the purpose of defrauding the insurer.
The alleged written release relied on, and above referred to, is found on the back of the policy contract and reads as follows:
"Natchitoches, La.
"Oct. 9, 1933.
"Received from the Unity Ind. Life Ins. Co. the sum of Seventy Two Dollars and Ninety Six Cents representing the refund of premium on this policy No. C4863 and I hereby release the said company from all liability that might arise under this policy in event of my death.
"Signed: Harriett Harrison
"Harriett Harris
"By Elma Jones
"Daughter of Insured
"Witness: W.H. King
"Witness: E.B. Joseph"
The name "Harriett Harrison" was evidently written first because the policy so described the insured; however, her correct name was Harriet Harris, as is revealed by an admission contained in the record. It is then to be noticed that the instrument was assertedly signed by one Elma Jones for and on behalf of her mother, the insured. But the evidence in the record does not show that the said *Page 699 Elma Jones was authorized to sign for her mother or that she actually executed the release in question. In this connection, it is well to observe that insured's said daughter and also W.H. King, a witness to the release instrument, testified during the trial of the case as defense witnesses, but neither was questioned regarding the effecting of the alleged settlement and the execution of the release. We must therefore hold that this defense has not been substantiated by the record, and, accordingly, it cannot prevail.
Our attention is directed by defense counsel to the case of Coats v. Guaranty Bank Trust Co. et al., 174 La. 503,141 So. 41, 43 wherein the Supreme Court said: "Also, where a person's name is signed for him at his direction and in his presence by another, the signature becomes his own, and is sufficient to give the same validity to an instrument as though written by the person himself." Obviously, this doctrine is not applicable to the case at bar because of the absence of the proof to which we have above alluded.
The defense of misstatement of age must also fail. The record contains no proof whatsoever to sustain it.
The judgment is correct, and it is therefore affirmed.
On Rehearing.