Opinion by
Thе question for determination on this appeal is whether an insurance company is liable in an action ex; delicto for neglect or unreasonable delay in acting upon an application for insurance where but for such delay the application would havе been approved and the insurance issued in time to have protected the applicant against a loss which occurred to his damage during the period of such unreasonable delay.
*428 Appellant, John Zayc, administrator of the estate of Jacob Zayc, deceased, instituted a trespass action against the John Hancock Mutual Life Insurance Company of Boston, appellee, to recover damages claimed to have been sustained by his decedent, Jacob Zayc, as a result of appellee’s failurе to act upon an application for life insurance within a reasonable time. The statement of claim averred that on June 25,1931, Jacob Zayc made application to an agent of the appellee insurance company for a twenty payment life insurance policy in the sum of $2,000, with double indemnity provision, and that he paid four dollars as a deposit on the first premium ; that after June 25, 1931, Zayc was interviewed by agents of other companies, but, relying upon an alleged custom of insurance carriers to accept or rejеct applications within a reasonable time, the application made by him with appellee’s agent, and appellee’s retention of his deposit, he refrained from making any other application; that appellee did not reject or refuse the аpplication on or before August 24, 1931, on which date Zayc was accidently killed, and did not theretofore offer to return his four dollar deposit; and that by reason of the negligence of appellee in failing to ad: vise Zayc within a reasonable time that a policy wоuld or would not be issued, he was deprived of life insurance protection which he otherwise would have had.
Appellee filed an affidavit of defense in the nature of a statutory demurrer, asserting that the statement of claim failed to set forth a cause of action. The court below overruled the demurrer saying (Zayc v. John Hancock Mutual Life Ins. Co., 30 D. & C. 34), “Irrespective of whether a contract is completed, it is the duty of an insurance company to act without unreasonable and negligent delay upon an application for insurance where part of the premium has beеn paid to the company at the time the application is made. In this pioneering case in our State, we are of the opinion that the plaintiff’s statement of claim presents a good cause of action *429 in trespass.” The court directed that appellеe file an affidavit of defense on the merits, which it did, denying that Zayc had applied for insurance, but admitting that his mother, Mary Zayc, who was also to be named beneficiary, had made such an application and that at the time she had paid to an agent for appelleе the sum of four dollars as a deposit on account of the first premium. The case went to trial, and, at the close of appellant’s evidence, appellee moved for compulsory non-suit. This motion was denied, whereupon appellee rested, without offеring any testimony, and submitted a point for binding instructions, which was likewise refused.
The jury brought in a verdict for appellant in the sum of $2,881, the face amount of the policy plus interest less the amount of the first premium. Appellee filed a motion for judgment non obstante veredicto. After a recоnsideration of the position taken by it in overruling appellee’s statutory demurrer, the court below granted this motion and entered judgment for appellee on the ground that the company’s delay in acting upon the application did not constitute actionable negligеnce, and on the further ground of material variance in that whereas appellant’s statement of claim averred an application by Jacob Zayc, its proof showed an application by his mother, Mary Zayc. From judgment so entered the present appeal was taken.
It is the established rule in Pennsylvania, as in most jurisdictions, that mere delay, however great, in passing upon an application for insurance cannot be construed as an acceptance thereof by the insurer which will support an action ex contractu, notwithstanding payment of the premium at the time application is made. “When, as here, it is plain that the application and payment of the premium amount only to a proposal for insurance, we cannot make a contract out of it. . . . The proposal аnd the premium advanced with it, go together. If the proposal be withdrawn, or rejected, the premium must be returned. At any time before acceptance of the pro
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posal, the plaintiffs could have withdrawn it, and demanded payment of the premium. They were never bound аs by contract, and of course the defendants were not”:
Insurance Co. v. Johnson,
But, appellant does not seek to enforce his claim for damage on any contractual basis. He asserts a right to recover on the theory that where an application has been made and there has been delay on the part of the agent in forwarding, or on the part of the insurance company in accepting or rejecting the application, such delay constitutes a tort. Manifestly appellant’s attempt in this manner to hold the insurer responsible in damages for the amount of a policy because of delay, and thereby to accomplish by indirection that which the law has persistently refused to permit to be done directly, in an action ex сontractu, cannot prevail, unless, independently of statute or contract, a legal duty devolved upon the insurance company either to accept or reject the application for insurance within a reasonable time. It is fundamental that negligencе and liability therefor cannot be predicated upon a state of facts which does not impose any legal duty. “As a matter of course there can be no recovery in such a case, unless the defendant
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was guilty of a breach of some legal duty which he owed to thе plaintiffs. The foundation of the action is negligence, and the accusation of negligence is only made out by showing a breach of legal duty owing by the defendant to the plaintiffs”:
McCauley v. Logan et al.,
A number of jurisdictions where the question has arisen have found tort liability to exist, largely in reliance upon
Boyer v. State Farmers Mutual Hail Ins. Co.,
The mere fact that a reasonably prudent business man would have acted with diligence is clearly not a satisfactory basis for imposing liability upon an insurer for delay in issuing a policy of insurance after the making of an application. As a general proposition it is true, as was said in
Bisson v. Kelly,
The long established conception of the legal relations between an applicant for insurance and the insurer is that such relations are fundamentally the same as those between parties negotiating any other type of contract, and are to be tested and governed by the prinсiples applicable to contracts in general. Thus, it is said in Insurance Co. v. Johnson, supra, “But it is said that the loss did not take place for near six months after the application, and that during all that time the defendants neglected to refund the money, and to notify the plaintiffs that their proposal was rejected. . . . What is the true effect of the delay? ... A neglect or delay that has properly a tendency to mislead another, and which is incompatible with honesty, may be charged as a ground of liability. . . . But in this case the plaintiffs had in their own hands the power of correcting the delay; for undue delay in accepting a proposal may be and ought to be treated as a rejection of it, and the proposer may refuse to' be bound by a tardy acceptance. A proposal not answered remains a proposal for a reasonable time, and is then regarded as withdrawn. Both parties are interested in its acceptance, and, both are expected to attend to it with reasonable diligence.” More *434 recently, in Munhall v. Travelers Ins. Co., supra, at 333, the present Chief Justice said: “As to the averments that defendant prepared аnd executed a written policy, and fraudulently refused to issue and deliver it, there is no legal significance in them. As the application was but an offer, the company was free to accept or reject it.”
It is true that an insurance company acts under a franchise frоm the state, as does every corporation, and that it may be subjected to unusual supervision by the state in the conduct of its business
(Commonwealth v. Vrooman,
It has been suggested that it is socially desirable that an indemnity on specific contingencies be provided for all those who are eligible and desire it, and that insure anee companies are so charged with this public interest as to justify, the imposition upon them of a peculiar duty to protect those who apply tо them for insurance. This may be and, indeed, perhaps some would regard it a salutary rule of law which would require, all persons to whom solicited offers are made to treat them with reasonable care. Such factors as these, however, furnish no sufficient legal basis for the imposition upon insurance companies, by a court mindful of the limitations upon its proper functions, of duties or liabilities having no sanction in the established principles of law or in the statutes governing the business.
In view of our conclusion that there is no legitimate basis for imposing liability in a situation like that here *435 presented, it follows that the action of the court below in entering judgment non obstante veredicto for appellee was proper, and it is unnecessary to consider the question of variance. In this connection, however, it is noteworthy that, granting the еxistence of the duty, there is a lack of unanimity of opinion as to whom it is owed. The majority of jurisdictions allowing recovery hold that the estate of the applicant and not the named beneficiary in a life insurance policy is the proper party to sue. But, becausе of the anomalous results which this view produces in instances where the beneficiary is a third party, comparatively recent cases take the position that if there is a right of action, it is the beneficiary who should sue and recover. See Thornton v. National Council, and Savage v. Prudential Life Ins. Co., cited supra.
Judgment affirmed.
Notes
The doctrine of the Boyer and Duffie cases has been adopted in the following jurisdictions: Hawaii
(Carter v. Manhattan Life Ins. Co.,
Mississippi
(Savage v. Prudential Life Ins. Co.,