Defendant Prudential Insurance Company of America (Prudential) applied to this court on February 4, 1966 for an order granting summary judgment in favor of defendant and against plaintiff Jean Shannon. The motion was based upon the pleadings, the affidavit of Leo DiFonzo, defendant's brief, the oral argument, and a letter containing supplemental information from defendant's attorney.
Plaintiff's attorney submitted plaintiff's affidavit, his brief, and presented oral argument.
Briefly stated, the following are the facts:
On March 12, 1963 Frank Shannon signed an application for a 25-year decreasing term life insurance policy from Prudential and paid $10 to its representative, Leo DiFonzo. Defendant prepared a policy, dated March 25, 1963, which came into the possession of DiFonzo on March 28, 1963. On March 29, 1963 Shannon was shot and killed while in the performance of his duties as a member of the police force of the City of Newark, N.J.
Shannon's widow, plaintiff Jean Shannon, as beneficiary under the policy, has demanded payment in the amount of
$10,000. Defendant has refused to pay on two grounds: (1) Frank Shannon had not paid the balance of $47.70 of the full first premium of $57.70; and (2) defendant had not delivered the policy to Frank Shannon before his decease.
No defense was interposed as to Shannon's physical or mental condition; he was in the active performance of his duties when killed.
The application and the conditional receipt were introduced into evidence at the hearing of the motion on February 4, 1966. The policy was not offered in evidence.
Plaintiff's affidavit states that her husband had entered into an agreement with the representative of Prudential, DiFonzo, on March 12, 1963, who stated "that upon the acceptance of the $10 my husband would be insured for his life for the sum of $10,000. My husband gave him a deposit of $10 and Mr. DiFonzo said my husband would have to submit to a physical examination and additionally, he would have to submit the application to his superiors, but that until the application was denied my husband would be insured." Thereafter, a gentleman from Prudential stated that the application had been approved, that Shannon had passed the physical examination, that Prudential had accepted the application, and that "Frank was now insured for $10,000." The gentleman also stated that the policy had been written and that he would drop it off the next day. Subsequently, DiFonzo indicated that the policy was in effect, that he had the policy and that he would deliver it to the home of the Shannons.
DiFonzo, in his affidavit, admitted that he was an insurance agent of Prudential, that on March 12, 1963 he received the application, and that "in exchange for a deposit in the amount of $10, at the same time I delivered to Frank Shannon a Conditional Receipt (ORD 22387-ED 1-63)." DiFonzo delivered the executed application forms to defendant's Bloomfield district office. From there the forms were sent to defendant's home office in Newark, N.J. DiFonzo also swore that
"on March 28, 1963, an insurance policy in the type and amount applied for by Frank J. Shannon, dated March 25, 1963, was received by me in the Bloomfield District Office. It was given to me for delivery to Frank J. Shannon upon payment of the full first premium thereon and upon ascertainment that the answers to the questions in the application aforesaid continued to be true as of the date of delivery of the policy."
DiFonzo's affidavit also stated that Shannon died on March 29, 1963, that the policy had not been delivered to Shannon prior to his death, and that on March 29, 1963 the ...