dissenting. I concur in the propositions stated in the first three headnotes, but I can not agree to set aside the finding of the jury in this case upon a question which it was their sole province to determine. It is conceded, in the opinion of the majority, that the stipulation of the contract which affords the insurance company its sole excuse for claiming a forfeiture of the sick benefits which the jury found that the defendant in error was entitled to recover (to wit, the condition that “written notice of any injury, fatal or non-fatal, or of any sickness for which claim can be made, shall be given to the company at its home office at Chicago, within ten days of the occurrence of the accident or commencement of the sickness, and failure to give such written notice' . . in ease of sickness, within ten days from date of commencment of sickness, shall invalidate any and all claims under this policy”) must be treated as a condition subsequent, and not as a. condition precedent, nor as an essential warranty on the part of the insured.
*200In Southern Life Ins. Co. v. Wilkinson, 53 Ga. 536, the Supreme Court held that if there was any variation in the conditions of the policy which changed the nature or extent or character of the risk, failure to fulfill the conditions would avoid the policy, but held further, in the sixth division of the opinion, that “the question as to giving notice of the death of the person whose life was insured, to the company within a reasonable time, was one for the jury, under proper instructions, to be given in the charge, and was not to be absolutely passed upon by the court.” And the court ruled that it was not error to refuse to charge the jury as requested by the insurance company, that a delay for several months to give notice of the death of the party whose life was insured would be failure to give notice in a reasonable time. I conceive the proper rule as to conditions subsequent in a policy of insurance, such as to give notice, similar to that embodied in the contract now under consideration, to be that the stipulation will be held to be complied with if there is compliance within a reasonable time, and that the jury are the sole judges as to whether such conditions subsequent have been reasonably complied with. Unlike conditions precedent, conditions subsequent, embodied in a contract of insurance, do not affect the nature, extent, or character of the risk; and if the conditions precedent (or warranties on the part of the insured) are shown to have been fulfilled, and the insured has paid all the premiums which by Iris contract he has been required to pay, no construction should be indulged which would enable the insurer, by the use of an unsubstantial technicality, to defeat an honest claim of the insured to the indemnity promised him by the contract. The great learning of Judge Bleckley was never more pithily expressed than in the statement, “Insurance is business, and not elaborate and expensive trifling” Mobile Fire Department Ins. Co. v. Coleman, 58 Ga. 257.
In this case my brethren, conceding that the evidence shows that the insured could not give the stipulated notice within the ten days required by the contract, and admitting that within a certain period thereafter a notice would have been efficacious, nevertheless hold that the notice given by the insured at a later period, by a few days, comes too late, and the insured’s benefits must be lost to him because notice was not given three weeks sooner. Of what materiality is this stipulation? If it be reasonable at all, espe*201daily as to tlie requirement that notice of a fatal accident shall be given within ten days or else the benefits will be lost (although no one but the deceased may know that he has a policy, and it may not be discovered for more than ten days after his death by accident), and if it be conceded that there may be instances of reasonable cause for delay, and that notice may be given after the ten days, which can properly be held to have been given within a reasonable time, then it seems to me clear that it is for the jury, and for the jury alone, judging the question by the peculiar facts of the special case before them, to determine whether the condition has been so substantially complied with as to render the fact that it was not sooner complied with immaterial. In my opinion (based upon that of Chief Justice Bleckley), when one pays his money for insurance, whether it be life, fire, or accident insurance, and the bona fides of his claim for indemnity under the contract of insurance can not be questioned, no stipulation of the contract which is immaterial in the ascertainment of the honesty and justness of the claim should be permitted to defeat his just demand. If it be said that the purpose of the notice is to give the insurer an opportunity of ascertaining whether the insured was really sick, and the notice confessedly was not given until after the insured was well, how can it be said that the rights of the insurance company were materially affected by the notice having been given three weeks and four days after the insured recovered from his sickness, rather than two days after he'had actually recovered? As said by Judge Bleckley in the Coleman case, supra, “The Code governs the contract, and the construction of the Code is settled, to the effect that what is wholly immaterial to the risk is so utterjy immaterial that the yea or nay of it will not render the policy void If this be the true meaning of the Code, even an express stipulation by the parties, that the validity of the policy shall depend upon immaterial as well as material matters, is, at bottom, an attempt to repeal the law. Such a stipulation is itself immaterial, in the sense of being idle and nugatory. The Code, instead of relegating to the parties the subject of materiality, holds possession of it for rational and honest adjudication by the tribunals of the country. Whoever makes a contract of insurance in this State must submit to have its force and effect governed by the statutory provisions applicable to that class of contracts. There is a public *202policy involved in standing by substance. Insurance is business,. and not elaborate and expensive trifling. Of course, what is in any degree material should be allowed its due effect; but the absolutely immaterial should count for nothing.” This was the criterion established by the Supreme Court for determining as to the binding force even of representations of the assured warranted to be true. And much less then should a condition subsequent, which, in my view, is utterly immaterial to the validity of the contract, and which does not touch its substance, be permitted to defeat a claim whose honesty is unchallenged, and whose merit has been asserted by the solemn verdict of a jury.
If Watson had never given any notice, and the circumstances had been such as to authorize the jury to find that he was not excused therefrom, the circumstance that he had failed to give the notice might tend to discredit the bona fides of his claim, but mere failure to give notice could not defeat it if a jury was authorized to find, and did find, that the circumstances were such as that he was excused from giving notice. I think that the jury were authorized to find that Watson (whom the evidence does not show to have been well, although convalescent) was as much to be relieved from literal compliance with the stipulation in regard to the ten days’ notice at the time when the notice was finally sent as he could properly have been excused (according to the opinion of my brethren) at the time that he first sent the notice to the physician. As to whether the notice, if ever given, was given in a reasonable time, was a question purely for the jury, and their finding, aj>proved by the learned trial judge, meets my hearty concurrence. If it is the purpose of a contract of insurance to honestly furnish indemnity against loss, the substance of the contract should be preserved, regardless of immaterial technical stipulations. It is not to be supposed that it was within the contemplation of the parties to this contract of insurance that an honest claim for indemnity, purchased by the insured’s payment of the required premiums for that sole purpose, should be defeated because of non-compliance with stipulations designed solely for the protection of the insurer against fraud, and where it could not be contended that compliance would either increase or diminish the true amount to which the beneficiary would be entitled in return for the premiums. Insurance premiums are designed not wholly for the profit of the *203insurer, but also partly for the protection of the insured. The presumption may be indulged that the insurer caused conditions subsequent to be engrafted for his proper protection against fraud; but if provisions are inserted which apparently can serve no purpose other than to afford an excuse to defeat a liability which, according to the substance of the contract, is just, such stipulation should be disregarded, as immoral, illegal, and void. In construing the conditions subsequent in a contract of insurance, it can properly be assumed that proper protection, and not profitable peculation, was what was -within the contemplation of the parties at the time of the contract.