This appeal is from an order granting to tire! plaintiff a new trial. On the main trial the court erred to plaintiff’s prejudice in overruling demurrers to pleas 5, 8 and 10, and, therefore, it did not err in granting the new trial.
The action was upon a policy whereby the defendant insured the life of Beth G. Pruett. Plea 5 is as follows: “It (defendant) says that the policy sued on and the application for said policy, together form one contract; that it is provided in a.iul by the application made by said S. G. Pruett among other things that all the statements and representations contained in said application are material, and are and shall be true, and with the stipulated premiums, shall be the sole consideration of the contract with the defendant, and that if any concealment, or fraudulent or untrue statement or representation be made, said policy and insurance shall be null and void; and defendant avers that in and by said application .said B. G. Pruett stated that he did not have, on the date of said application, and had never had, a disease of the liver, which statement Avas untrue.” Plea 8 is the same as plea 5, except that instead of averring fin express denial by the applicant of the fact that he once had liver disease, it contains averments to show that that by Avhat appears in his application that fact was suppressed or concealed. Plea 10 is substantially libe the one last mentioned, except that the suppression or concealment imputed to the applicant is of the fact that prior to the application he had malarial fever and •an enlarged liver.
Misrepresentations as to physical condition do not operate to avoid a contract of insurance, unless they are *691such as to deceive the insurer about a matter material to the risk and so amount to a fraud, or unless they be warranted as true and consequently involve a breach on the part of the insured of the contract of insurance.
In Alabama, Gold Life Insurance Company v. Johnston, 80 Ala. 467, it is declared as a rule of construction applicable to contracts of insurance, that' “even though a warranty in name oí* form be created by the terms of a contract, its effect may be modified by other parts of the policy oi* of the application including the questions and answers, so that the answers of the assured so often merely categorical, Avill be construed not to be a warranty (if immaterial facts stated in such answers, but rather a warranty of the assured’s honest belief in their truth — or in other words, that they were stated in good faith. The strong inclination of the courts is thus to make these statements, or answers, binding only so far as they are material to the risk where this can be done without doing violence to the clear intention of the parties expressed in unequivocal and unqualified language to the contrary.” For all that is shown in these pleas, the “other things” they aver to be in the application and contract may so control the particular provision therein mentioned as declaring a warranty as to show the answers relating to liver disease and malarial fever were not intended to be and were not in fact warranted to be true. These pleas were bad in that they do not aver in terms or purport to show that by the contract taken as a whole those answers were warranted as true, or that they amounted to more than untrue representations immaterial to the risk and forming no inducement to the making of the contract. — Mutual Benefit Life Insurance Company v. Lehman, 132 Ala. 640.
On the trial it was proven that about ten years before his application for this insurance' Beth G-. Pruett had malarial fever and enlarged liver, due; to malaria and lasting a short while. It was further proven that he was permanently cured of both diseases and was thereafter, until and at the time: the policy was issued, in good health; but apparently upon the theory that this with the other proof sustained one or more of these pleas *692under consideration, the conrt charged “If the jury believe the evidence in this case, it must find a verdict for the defendant.” Tin's shows the overruling of the demurrers to these pleas was prejudicial to the plaintiff.
Judgment affirmed.