BeogdeN, J.

This action has been instituted upon the contract of insurance and not in tort to secure damages for the negligent failure of defendant to pass upon the application of the insured. Many courts have permitted recovery for negligent delay in accepting an original application for insurance. Duffy v. Bankers Life Association, 139 N. W., 1087, 46 L. R. A. (N. S.), 25; Handlier v. Knights of Columbus, 183 N. W., 300; In re Coughlin’s Estate, 205 N. W., 14; Strand v. Bankers Life Ins. Co., 213 N. W., 349; Kukuska v. Home Mut. Hail-Tornado Ins. Co., 235 N. W., 403; Jackson v. N. Y. Life Ins. Co., 7 Fed. (2d), 31. The authorities are discussed in an illuminating note in Tale Law Journal, Vol. 40, page 121. The author of the article says: “Half a century ago the Supreme Court of the United States voiced the judicial opinion of the time when it declared: 'It was competent for the insurance company to pause as long as they might deem proper and finally to accept or reject the application as they might choose to do.’ Since then, however, the insecure fortune of an individual pitted against the security of an actuary table has caused courts to construct new and distort old legal concepts in an endeavor to protect that individual.” See Annotation 15 A. L. R., p. 1026. In North Carolina the Court held that delay in passing upon an original application for insurance gave no cause of action upon the contract. Ross v. Ins. Co., 124 N. C., 395, 32 *555 S. E., 733. Subsequently, in Fox v. Ins. Co., 185 N. C., 121, 116 S. E., 266, the Court held that an action for damages was maintainable upon allegation and evidence tending to show negligent delay in the delivery of a policy. The Fox case, however, is distinguished in Sturgill v. Ins. Co., 195 N. C., 34, 141 S. E., 280.

The case at bar does not involve the question of negligent delay in passing upon an original application for insurance, but upon an application for reinstatement of a policy already issued and in force until it lapsed by failure to pay the premium. The Michigan Court in N. T. Life Ins. Co. v. Max Buchberg, 228 N. W., 770, 67 A. L. R., 1483, said: “The reinstatement of an insurance policy is not a new contract of insurance, nor is it the issuance of a policy of insurance, but rather is it a contract by virtue of which the policy already issued, under the conditions prescribed therein, is revived or restored after its lapse.” To like effect is the reasoning in Muckler v. Guarantee Fund Life Ass’n, 208 N. W., 787, cited by defendant. In that case the Court quoted with approval from the Colorado Court, as follows: “that the rights of an insured, making an application for reinstatement of a lapsed policy, are widely different from the rights of those making an original application for insurance, must be conceded, and this principle is so plain as to need neither elaboration nor citation of authorities.” Couch, Encyclopedia of Insurance Law, Yol. 6, sec. 1375, states the proposition as follows: “And a contract for reinstatement of a life policy is not a new contract; rather, it is merely a waiver of forfeiture, so that the original policy is restored and made as effective as if no forfeiture had occurred, unless the contract for reinstatement is itself tainted with such fraud as would justify the company in repudiating.”

As stated in the former opinion, the right of reinstatement prescribed by the terms of the policy in controversy is a substantial property right. The insurance company had the right to pass upon the question of insurability and the evidence thereof submitted by the insured. This power of the insurer to pass upon the right of the insured imposed a legal duty and obligation which the company could not arbitrarily determine or disregard by failure to act for an indefinite and unreasonable time.

The evidence, as disclosed by the present record, shows that the defendant acted promptly in disposing of the application. The only delay that could possibly be urged as unreasonable was the delay of Bartholomew, local agent, who received a letter from Upshaw, general agent, on or about 27 November, and did not reply thereto until 21 December, which constitutes a period of approximately twenty-four days. It ap *556 pears tbat in tbe meantime tbe insured was already sick, and tbe record does not disclose bow long be bad been sick between tbe dates specified.

Upon these facts now appearing, tbe court is of tbe opinion tbat tbe prayers for instruction requested by tbe defendant should have been given. Bank v. Fountain, 148 N. C., 591, 62 S. E., 738; Grain Co. v. Feed Co., 179 N. C., 654, 103 S. E., 375.

In tbe Grain Co., case, supra, tbe Court said: “As there was substantial difference between tbe parties as to tbe essential facts, and, as tbe evidence was practically one way in regard to them, it was not error to instruct tbe jury tbat, if they found tbe facts to be as stated in tbe testimony of tbe witnesses, they should answer tbe issues as indicated in tbe charge. . . . Tbe charge was not a peremptory one, and tbe verdict was not directed. Tbe credibility of tbe witnesses was left to tbe jury.”

New trial.

ClaeKSON, J., dissents.