This ease is here upon a demurrer to the evidence. Tbe facts proven are as follows: On December 6, 1927, Joseph B. Thornton, of Huntington, West Virginiа, who was a member of the local council of the defendant, was examined by Dr. F. A. Fitch, defendant’s local examining physician, and on the follоwing day H. A. Davis, insurance agent of defendant, secured Thornton’s application for a policy of $1,000 which, with the report of Dr. Fitch, he mailed'tо Dr. J. H. Junghans at Washington, D. C. Davis also collected conditionally from Thornton, on that day, $2.50 as the premium on the policy for the first month. The conneсtion of Dr. Junghans with defendant does not appear; but Davis says he mailed applications to Dr. Junghans because the latter had requested it. Dаvis was furnished with stamped letters addressed to Dr. James L. Cooper of Fort Worth, Texas, to be used in communications to the latter, who was chief examiner of defendant and upon whose approval of such applications the policies were issued. T. E. Dunkle, superintendent of mails at Huntington, testified that a letter mailed from Huntington, in the month of December, should reach Fort Worth, Texas, within three days. Dr. Junghans received the application on December 13th at Parkersburg, West Virginia, (how it arrived there does not appear) and forwarded it to Dr. Cooper the next day. Thornton died near midnight of December 15th. Dr. Cooper approved the application on December 16th, the policy to becomе effective at noon of that day (by rules and regulations of defendant). Thornton’s wife, Gussie M., received the policy on December 20th. She and her mother-in-law were named as beneficiaries both in the application and the policy.
This action is brought by Mrs. Thornton, as administratrix of the estаte of her husband. She claims damages'to the estate by reason of delay in forwarding the application to Dr. Cooper. The jury was instructеd if it found for plaintiff, *414 to assess'the damages at $1,000. It so found and the trial court determined the law on the evidence to be for plaintiff.
This action is described in appellee’s brief as “a tort action for negligent delay of the defendant 'in forwarding the application for acceptance or rejection. ’ ’ The brief expressly denies that this is an action on the policy and explains that the policy was brought '-into thе case only to show that the applicant was an acceptable risk. The brief cites decisions from Kansas, Iowa, Colorado, and Nebraska, which uphold the right of recovery in such actions. See
Boyer
v.
Ins. Co.,
The long established conception of the legal relations between аn applicant and an insurance company is that such relations are fundamentally the same as those between parties negotiаting any other contract, and are “purely contractual.” “The contract of insurance is to be tested by the principles appliсable to the making of contracts in general.”
Clark
v.
*415
Ins. Co.,
No reason is apparent why an insurance contract should be regarded as of аny more interest to the public than a contract of employment. It is of as much importance to the public that a person and his deрendents have support during his lifetime (by wages or^salary) as that his beneficiaries have a competency (through insurance) after his death. Yеt it has never been held that delay in passing upon an application for employment affected the public .interest to the extent thаt it made the employer liable for all damages arising from such delay. The theory advocated by appellee is such an innovation оn established insurance ,law that this Court is not prepared now to accept it. We do not mean to imply, however, that action in such cаse might not lie on an implied contract.
We are confronted with another departure from the “beaten paths” which we cannot aрprove, i.e. that of the personal representative demanding as damages to the estate of the applicant, the sum which the application provided should be paid to certain individuals. The appellee would support this demand by Dufy v. Banker’s Ass’n, supra, which upheld a similar action оn the ground that “the negligence, if any, was that of failing to discharge a duty owing the deceased.” DeFord v. Ins. Co., supra, permits this procedure for the same reason. If this duty were breached in the instant case, how has the personal estate of the deceased suffered? 'Not one penny of the proceeds of the policy was to go to the estate. On the other hand, the estate is entitled *416 to a return of tbe premium (which accompanied the application), and to that extent profits by,/the alleged negligence. The law is settled that where a third person is named as bеneficiary in a life insurance. policy, the proceeds belong exclusively to thelbeneficiary “and cannot properly be clаimed or received by the * * * legal representative of the insured as assets of his estate.” 37 C. J., p. 566, sec. 323; 14 R. C. L., p. 1425-6. We see no reason for excepting this ease from the general rule, though brought in tort instead of ex contractu.
We, therefore, find that on the demurrer to the evidence, the law is with the defendant, and we reverse the judgment of the lower court and enter judgment here for the defendant.
Reversed and rendered.