Southard v. Occidental Life Insurance Co. of California

We hold a question of law rather than a question of fact is raised by the affidavits and should be decided upon the defendant’s motion under the rule laid down in Bond v. Harrel (1961), 13 Wis. (2d) 369, 108 N. W. (2d) 552; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis. (2d) 545, 105 N. W. (2d) 807; and Voysey v. Labisky (1960), 10 Wis. (2d) 274, 103 N. W. (2d) 9. In its affidavit in support of its motion, the defendant sets forth the application and states it relied thereon in insuring Southard. The critical question in the application concerning the applicant’s health asked, “During the…