
    No. 7738.
    Mrs. Lise Boisblanc, Widow, etc. vs. The Louisiana Equitable Life Insurance Company.
    Where a prima fade case is made out, and the Insurance Company has set up breach of warranty and intemperance, the burden rests upon it to make out the defense. Where it fails in that regard, the beneficiary will recover. Judgment affirmed.
    A PPEAL from the Sixth Bightor, J. District Court for the Parihli of Orleans.
    
      Jas. Legendre, for Plaintiff and Appellee:
    1. In a suit to recover on a policy of insurance, the burden of proof in avoidance of the policy is on defendant. If defendant fails to prove the matters set up in defense, plaintiff will recover. Campbell vs. N\ Eng. Mut. Life Ins. Co., 98 Mass. 381; Miller vs. Mut. Benefit Life Ins. Co., 31st Iowa, 210; 1 Dillon Rep. 403; 31 Mo. 725; 2 O. Rep. 379.
    2. An affirmative warranty, if true when made, cannot he affected by a change in the conduct of the insured, subsequent to issuance of policy; when the warranty or representation was, that the insured was sober, subsequent bad habits constitute no bar to the recovery < Reichardvs. Manhattan Life Ins. Co., 3L Mo. 518; Bliss, page 132-69; 59 39T. York, 570; 4 Barlow Rep. 462.
    3. "When the insured is alleged to have died from the use of intoxicating drinks, it must he proved that intemperance was the sole and proximate cause of his death. Bliss on Insuiance, page 401; May on Iusurance, page 330; Miller vs. Mutual Benefit Life Insurance Co., 31 Iowa, 210.
    4. Fraud is never presumed, but must be proved with, legal certainty. 18An.l23; 24An.299.
    5. On questions of facts, the decision of the lower court is entitled to great weight.
    
      Breaux & Hall, for Defendant and Appellant:
    Facts stated in application for a policy of life insurance, forming part of the contract, warranted to be true, must be stiictly tine; and concealments, as regards health or habits, annul the policy, whttber the error of statement, or concealment, be intentional or not. May on Insurance, p. 161, § 15C.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sues as beneficiary of the insurance effected by the defendant Company on the life of her husband, who died while it was in force. The defense is simply breach of warranty, implying intemperance.

From a judgment in favor of plaintiff this appeal is taken.

Aprima facie case having been made out, the burden of establishing the special defense, rested upon the defendant.

We have attentively read the evidence in the case. Admitting that it establishes that the insured indulged in excessive drinking, it by no means proves that he did so to excess. It surely does not show that the insured, prior to and at the time of his application, and of his answers to interrogatories propounded, was addicted to the use of intoxicating liquors to a greater extent than he had stated, and so as to impair his health materially, and to cause his death.

The District Judge, who heard and saw the witnesses, came to the same conclusion. We cannot overturn his appreciations.

The judgment appealed from is affirmed, with costs.

Mr. Justice Fenner recuses himself, having been of counsel.  