#### Old American Insurance Company v. Eskue.

Opinion delivered April 4, 1927.

*478 John L. Crank, for appellant.

George G. Stockard, for appellee.

Kirby, J.,

(after stating the facts). The appellant contends that the testimony shows conclusively that the insured was over the insurable age of fifty-five years at the time of the application for and issuance of the policy and that the verdict is not supported by the evidence.

If the statements of the proof of death was the only evidence in the case, this contention would be correct, since the undisputed testimony would show such to be the fact; but there was other testimony, and the positive statement in the application made by the insured himself, according to the testimony of the beneficiary, who wrote it, giving the day and year of insured’s birth, which showed him within the insurable age, and there was also other testimony tending to show that he was not beyond the insurable age, and the jury found in appellee’s favor on the conflicting testimony.

In Joyce on Insurance it is said: “A presumption exists that the applicant has truly stated his age, in the absence of proof to the contrary, and the burden is upon assurer to disprove such statement, and such presumption is not overcome by the statements made in proofs of death furnished by one of the beneficiaries under the policy. This presumption will, however, be overcome by proper evidence; * but a misstatement as to age is not established by insufficient evidence.”

Mrs. Eskue, the appellee, stated that she signed the proof of death, which was not written by her and which she did not read, but that she made no such statement as written therein relative to insured’s age, which she said she did not know and never had known. It is urged, in any event, that there was a settlement in full of all lia*479bility under the policy and a release executed to the company by the beneficiary, that it was a compromise settlement of a disputed claim, and binding.

It is true that an agreement of settlement for $45 was made, the money paid and the release executed, and that no fraud was perpetrated hv the insurance company in its procurement, but the undisputed testimony also shows that this was done under the mistake of facts by both parties as to insured’s being over the insurable age at the time of issuance of the policy, and the settlement avou]d not have been made otherwise. It is stated in 5 Joyce on Insurance, §■ 3319: ‘Els a general rule, the statements made in the proofs of loss or of death are not conclusive upon the claimant, where, they am made in good faith and with no attempt at fraud, and mistakes therein may be corrected.”

This court has allowed releases consummating settlements of claims for damages set aside and held no defense to an action for the injury,- where the settlement was based upon mutual mistake of fact. St. L. I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; St. L. I. M. & S. R. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187.

The jury having found, under proper instructions, that the release was executed under a mutual mistake of fact, the settlement had no effect as a compromise settlement of a disputed claim, and did not bar appellee’s right to recover, having no such effect as a compromise of a disputed claim.

We find no error in the record; and the judgment is affirmed.