dissenting. I think that the learned trial judge correctly'overruled the certiorari. There are two principles that should not be lost sight of in determining whether the judgment should be affirmed or reversed. In the first place, the verdict, which is supported by some evidence, has the approval of the trial judge; and the evidence should be viewed most favorably to the prevailing party. In the next place, as remarked by Justice Bradley in Insurance Company v. Norton, 96 U. S. 242 (24 L. ed. 689), and again in Insurance Company v. Eggleston, 96 U. S. 577 (24 L. ed. 841), “Forfeitures are not favored in the law;” and “courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, ■or course of action, on the part of an insurance company, which *205leads a party insured honestly to believe that by conforming thereto a forfeiture 'of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture." Under the evidence for the plaintiff (which the jury believed and which they were authorized to believe) there was sufficient testimony, in my judgment, to warrant the conclusion on the part of the jury that the policy was not in fact forfeited at the time of the last payment, on August 8. The plaintiff testified that he made the payments for June and July. It is true he was unable to remember the exact,amount he paid, and stated that he had lost his receipt; but he testified that he paid the agent of the benefit society, both in June and July, and that he was given a receipt. The jury were authorized reasonably to infer that the agent, in ordinary fidelity to his principal, would not have accepted a less amount than the sum of $1.35, which was the monthly payment, for each of these months. If this is true, then the payments made in August were merely pro gratia, not being required under the terms of the contract until the last day of August, at which time the insured was already dead. .The stipulation of the contract which provides that no receipts will be recognized as valid unless they appear on the written forms of the society can not affect this testimony. In the first place, the receipts lost by the plaintiff may have been taken upon such printed forms; and furthermore, a receipt is prima facie evidence of payment (Civil Code, § 5795), and, in my opinion, no contract could be made which would abrogate this section of the code and set aside the laws of this State upon the subject. The various stipulations of the contract pertinent to the issues involved are correctly quoted in the opinion filed by the majority of the court, and it is plain that the agent had no right to waive any of the conditions of the contract, and that a person would not be reinstated except at the option of the benefit society, and then only after fifteen days had elapsed from the time the society actually received the payment tendered; but in my view these .stipulations do not affect the present case. The contract itself shows without equivocation that the business of the society was to pay sick and funeral benefits, in case of sickness or death, to persons who at the time the insurance was taken were in good health. Provision is made in it for voiding the policy *206in case the' applicant is not in good health at the time the contract is made; and the provisions in regard to reinstatement can not be extended beyond the case of persons in good health. In the evidence it is undisputed that even if the payment was made after the policy was forfeited, as contended, instead of at the time testified by the plaintiff, and before there could have been a forfeiture, the plaintiff informed the duly authorized agent of the society that his wife was sick. Upon this statement it was the duty of the agent to decline to accept any payment. Under the contract he was expressly precluded from making any waiver or alteration of the contract. But his knowledge of the sickness-of the plaintiff’s wife became the knowledge of the society instantly, and was imputed to it. See Johnson v. Ætna Insurance Company, 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92). The same principle is reasserted in Supreme Lodge K. of P. v. Few, 138 Ga. 784 (76 S. E. 91), and is supported by a long list of citations; also in Fair v. Metropolitan Life Insurance Co., 5 Ga. App. 708 (63 S. E. 812). These numerous rulings are followed in every decision of this court where the point is involved. Instead of declining the payment, he took plaintiff’s money. If there is one principle well settled in insurance law, it is that the insurer can not accept and keep a premium and decline to comply with the insurance contract in case of the death or sickness or other loss of the insured. The evidence authorized the jury to find that the benefit society never returned this money until after the death of the insured. It authorized the inference that the society was playing chances.
It is insisted that there is no evidence that the benefit society received the money. The fact that the society itself, and not the agent, after the death of the insured, tendered repayment of this money, certainly, in my judgment, was a sufficient circumstance to authorize the conclusion ’that the money was forwarded to the society by the agent, and that the society received it. The agent had no right to waive anything, but, under the authorities cited above, the society knew that the plaintiff’s wife was sick; and with this knowledge it accepted the money, and kept the money until after it was informed of the death of the insured.- There was ample time after the payment of the $2.70 on August 6 for the company to have returned the money before the death of the insured. The payment of the $1.35 on August 8 is of no consequence, because, as already stated, it was not due until the last day of August. If, *207as held by the Supreme Court of the United States, and heretofore by this court, courts should be prompt to seize upon any excuse to prevent the forfeiture of contracts of insurance, certainly in a ease which to my mind is as plain as this I may be justified in dissenting (with all becoming modesty) from the judgment of the majority of the court.