177 S.E. 782 | W. Va. | 1934
Charles O. Chittum and Cecelia C. Chittum brought this action before M. H. Thayer, a justice of the peace in Kanawha County for $200.00 which they sought to recover as damages for a wrong. The justice having found for the defendant, plaintiffs appealed to the Court of Common Pleas of Kanawha County, and there was a *761 judgment based upon the verdict of a jury for $200.00 in favor of the plaintiffs. The circuit court of Kanawha County having refused the application of the defendant, Commonwealth Life Insurance Company, for a writ of error, the application was granted in this court and now comes on for decision.
The record shows that on July 2, 1933, one J. C. Schwartz, a solicitor of business for the defendant, Commonwealth Life Insurance Company, took three applications for policies of life insurance each in the sum of $200.00 upon the children of Mr. and Mrs. Chittum, Lelia L., age seven, Gallia, age eleven, and Charles, age twelve. The applications were dated July 3, 1933. On the application of Gallia and Charles, the question "When last sick?" was answered "1930", and the question "Of what disease?" was answered "Mumps". On the application of Lelia, the answer to the one was "1932" and to the other, "Cold, fully recovered". A small premium was paid and accompanied the applications. When these applications reached the home office of the company, the policies on the lives of Gallia and Charles were issued in due course. That of Lelia was held up, and before the delivery of the policy upon her life, she was struck by an automobile on July 18, 1933, and died the following day. The purpose of this action is to hold the company responsible as for a tort in the amount of the policy that is claimed should have been issued on the life of Lelia, the plaintiffs contending that had it not been for the negligence of the defendant's agent in filling in the application forms, that a binding and valid policy would have been issued and delivered upon the life of the child prior to the date of her death.
This question in all of its material respects has been before this court heretofore in the case of Thornton v. Order ofMechanics,
*763Reversed and remanded.