Mickschl

Plaintiff, as beneficiary therein, sought to recover upon an insurance policy issued by defendant to Norma Grace Mickschl. The answer alleged a breach of warranty on the part of the insured in that she falsely represented that the death of her mother, Mrs. Gould, was due to an attack of pneumonia, whereas, in fact, her death was due to pulmonary tuberculosis. Judgment went for plaintiff, from which defendant appealed.

Appellant’s sole contention, in which there is no merit, is that the finding of the court to the effect that the death of Mrs. Gould, the mother of the insured, was caused by an attack of pneumonia, as represented by her, and not from pulmonary tuberculosis, as alleged by the defendant, is not supported by the evidence.

[1] The burden of affirmatively proving the falsity of the representation made by the insured, and upon which the policy was issued, devolved upon defendant (Code Civ. Proc., sec. 1981 ; Penn Mutual L. Ins. Co. v. Mechanics’ Sav. Bank, 38 L. R. A. 33-69, note), which called Dr. Strong as the only witness, who testified touching the cause of Mrs. Gould’s death. Referring to the certificate of death prepared by the witness and wherein the cause of…