Rosenberger v. Northwestern Mutual Life Ins. Co.

• Citation: 182 F. Supp. 633
• Decision Date: 08 April 1960
• Docket Number: No. T-2034.,T-2034.
• Parties: Mary Frances ROSENBERGER, Plaintiff, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendant, Don A. Rosenberger, Intervening Defendant.
• Court: U.S. District Court — District of Kansas

182 F. Supp. 633

Mary Frances ROSENBERGER, Plaintiff, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendant Don A. Rosenberger, Intervening Defendant.

No. T-2034.

United States District Court D. Kansas.

April 8, 1960.

Harlow Preston, and Charles Rooney, Sr., of Rooney & Rooney, Topeka, Kan., for plaintiff.

Philip E. Buzick, of Webb, Oman, McClure, Buzick & Waugh, Topeka, Kan., for defendant.

Robert J. Roth, of Hershberger, Patterson, Jones & Thompson, Wichita, Kan., for intervening defendant.

ARTHUR J. STANLEY, Jr., District Judge.

Ruling on motions for summary judgment filed by each party, this court granted the motion of the defendant and denied those of the plaintiff and the intervenor. Rosenberger v. Northwestern Mutual Life Ins. Co., D.C.Kan.1959, 176 F.Supp. 379. Counsel for the plaintiff questions the court's interpretation of Kan.G.S.1949, 59-513.

In this action the plaintiff seeks to recover as beneficiary on several insurance policies issued on the life of her husband. The intervening defendant is the son of the deceased. Plaintiff was convicted of killing her husband, the insured; the jury finding her guilty of manslaughter in the fourth degree (the involuntary killing of another by means of a weapon in the heat of passion. Kan.G.S.1949, 21-419)

The motions of plaintiff and intervening defendant for summary judgment required the court to consider the effect which Kan.G.S.1949, 59-513 might have on plaintiff's right to recover on the insurance policies. The statute provides:

"No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will or otherwise from such other person any portion of his estate."

The court interpreted "feloniously killing" as meaning a killing done intentionally by the person causing the death. But, at page 383 of 176 F.Supp. the court then stated:

"However, a determination that the statute bars only those who have killed another intentionally does not mean that plaintiff's motion for summary judgment must be granted. A genuine issue of material fact remains. The judgment rendered in the criminal trial does not preclude re-litigation of the question of intent. * * * The prevailing view is that a conviction for a criminal offense may be received as evidence, persuasive but not conclusive, of the facts upon which it was based. Annotation, 18 A.L.R.2d 1287."

The court now recognizes that this holding was erroneous.

The statute bars one who has been "convicted of feloniously killing" another; it requires a conviction prior to the operation of the bar thereby created. Oberst v. Mooney, 1932, 135 Kan. 433, 10 P.2d 846; Hogg v. Whitham, 120 Kan. 341, 1926, 242 P. 1021. Therefore, in a civil action wherein G.S. 59-513 may have application, the only inquiry for the court is whether the party seeking property through the decedent was convicted of feloniously killing the decedent. The issue of the feloniousness of the act has been closed to further inquiry, and the court need only inquire whether the conviction was for a degree of homicide wherein intent to kill is a necessary ingredient.

The intervening defendant contends that a criminal judgment cannot be res judicata in a subsequent civil action. In support of this argument State v. Roach, 1910, 83 Kan. 606, 112 P. 150, 31 L.R.A.,N.S., 670, was cited to the court. That case, however, was concerned with the propriety of admitting evidence of the acquittal in the criminal action. This is the general rule with respect to acquittals for the reason that, as stated in 3 Jones on Evidence § 639, "a judgment of acquittal is a negative sort of conclusion lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable doubt."

It has been pointed out that there must be a conviction before any bar is created; and if the person who took the life of the decedent has been criminally prosecuted and convicted of feloniously killing the decedent, he is precluded by legislative mandate from benefiting from his act. To establish the fact of such conviction, resort must be had to the judgment of conviction.

In Noller v. Aetna Life Ins. Co., 1935, 142 Kan. 35, 46 P.2d 22, 25, the insured and the beneficiary, husband and wife, had died almost simultaneously. The ádministrator of each estate sought to recover the proceeds of a policy of insurance on the life of the husband. It was contended that the estate of the wife-beneficiary was barred from recovering because the evidence established that she had caused the death of her insured husband. The common law rule that where the beneficiary of an insurance policy feloniously kills the insured it is against public policy to permit him to recover on the policy was asserted. The court met this contention in the following manner:

"* * * The answer to it is twofold. This court is unable to say that the evidence in the record compels the conclusion that Mrs. Hammatt killed Mr. Hammatt. That is merely one of the conclusions to which a jury might come after weighing the evidence. It is our duty to draw all the inferences and conclusions from the record that go to sustain the position of plaintiff. When this is done, it is still apparent that the jury might have concluded that the tragedy was the result of each one of the participants committing suicide.

"The other answer lies in the law. Situations such as this have been covered in a measure by the passage of R.S. 22-133. * * * Predecessor to G.S. 59-513, but made any killing conviction a bar.

"That law was enacted in the session of 1907.

"In January, 1907, the case of McAllister v. Fair, 72 Kan. 533, 84 P. 112, 3 L.R.A.,N.S., 726, had been decided. In that case a husband had killed his wife for the purpose of obtaining her

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