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eBook details

• Title: Southard v. Occidental Life Insurance
• Author : Supreme Court of Wisconsin
• Release Date : January 07, 1966
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

Description

This is an appeal by the Occidental Life Insurance Company of California, defendant, from an order denying its motion for summary judgment to dismiss the complaint. The defendant by mail solicitation in the course of its business on October 25, 1963, offered Robert R. Southard, an insurance agent and resident of Wisconsin, an opportunity to become a member of a group life insurance plan covering insurance brokers and agents. Robert R. Southard filled out the application form and named the plaintiff James H. Southard the beneficiary. Upon this application the defendant insured Southard for $15,000 under the group life insurance policy. Some fourteen months later Southard died at the age of thirty on January 3, 1965, and this suit was commenced to recover the principal amount of the policy which the defendant refused to pay. In its answer, the defendant claims the policy is void under sec. 209.06, Stats., because Robert R. Southard made a material misrepresentation in the application which increased the risk and contributed to the loss. Upon this answer and a supporting affidavit the defendant moved for summary judgment. 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 last two years have you had heart disease, diabetes, lung disease, cancer or any other serious illness, or received treatment or medication for blood pressure?"" To this inquiry, Southard answered ""No.""

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