Provident Sav. Life Assur. Soc. v. Pruett

• Decision Date: 21 November 1904
• Citation: 141 Ala. 688,37 So. 700
• Parties: PROVIDENT SAV. LIFE ASSUR. SOC. v. PRUETT. [a1]
• Court: Alabama Supreme Court

37 So. 700

141 Ala. 688

PROVIDENT SAV. LIFE ASSUR. SOC. v. PRUETT. ^[a1]

Supreme Court of Alabama

November 21, 1904

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Oscar J. Pruett against the Provident Savings Life Assurance Society. From an order granting a new trial defendant appeals. Affirmed.

Fred S Ball, for appellant.

S. H Dent, Jr., and Lee H. Weil, for appellee.

SHARPE J.

This appeal is from an order granting to the 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 Seth 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 and 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 S. 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 was untrue." Plea 8 is the same as plea 5, except that instead of averring an express denial by the applicant of the fact that he once had liver disease it contains averments to show that by what appears in his application that fact was suppressed or concealed. Plea 10 is substantially like 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 such 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, 2 So. 125, 59 Am. Rep. 816, it is declared as a rule of construction...