Rosenberger v. Northwestern Mutual Life Ins. Co.

• Decision Date: 09 September 1959
• 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

176 F. Supp. 379

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.

September 9, 1959.

COPYRIGHT MATERIAL OMITTED

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.

STANLEY, District Judge.

This is an action to recover on six insurance policies which the defendant insurer had issued on the life of plaintiff's husband. Plaintiff was designated as the principal beneficiary in each of the policies. The complaint alleges that plaintiff's husband died in 1957 and that the plaintiff was arrested and tried on a charge of having caused the death, that trial resulting in a verdict of "guilty of manslaughter in the fourth degree contrary to Section 21-419 of the General Statutes of Kansas, 1949."^*

The son of the decedent, Don A. Rosenberger, has intervened and in his answer asserts that as the contingent beneficiary under the policies he is entitled to the proceeds thereof. He bases his claim on his interpretation of Section 59-513 of the General Statutes of Kansas, which 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."

It is the intervenor's contention that the plaintiff in this action, the primary beneficiary under the policies concerned, is barred by the above statute from recovering the proceeds and that the contingent beneficiary therefore succeeds to them.

The insurance company has filed its answer and a counterclaim for interpleader. The insurance company admits that the proceeds on the policies of insurance are due and owing; disclaims any interest in or claim to the proceeds and asserts that because of the conflicting claims it runs the risk of multiple liability.

The children of Don A. Rosenberger, minors, have been made parties to the action because they had been designated by the insured as second contingent beneficiaries in the event of the deaths of the direct beneficiary and the first contingent beneficiary.

The plaintiff, the insurance company and the intervenor, each has filed a motion for summary judgment.

The question first raised is whether the plaintiff was "convicted of feloniously killing" her husband so as to be barred by the statute, G.S. 59-513, from the benefits of the insurance policies.

The Kansas statute is applicable to insurance contracts so as to prevent one convicted of feloniously killing the insured from taking as a beneficiary. See Noller v. Aetna Life Ins. Co., 1935, 142 Kan. 35, 46 P.2d 22.

The plaintiff admits that she was convicted of a felony when she was tried for the killing of her husband. See State v. Bowser, 1942, 155 Kan. 723, 129 P.2d 268, which holds that a conviction for manslaughter in the fourth degree is a conviction of a felony. It is the plaintiff's contention, however, that she is not barred by the statute for the reason that the killing was done without criminal intent and that the statute is not applicable to an unintentional killing. The intervening defendant contends that the statute intends to prohibit a person from taking property from another who was killed under circumstances which render the conviction for the killing a felony.

The Supreme Court of Kansas has, as the plaintiff contends, defined the word "feloniously" as referring to intent to commit a crime, and as the terms were used in the cases cited such definition would be appropriate. In State v. Douglas, 1894, 53 Kan. 669, 37 P. 172, the information charged that the assault had been made "unlawfully and feloniously" and the court found that the information was not rendered defective by the use of such language, that as used there the word "feloniously" meant with intent to commit a crime. And in Guffey v. Continental Casualty Co., 1921, 109 Kan. 61, 197 P. 1098, in defining the term "feloniously taking" as used in the robbery statute, the court determined that it meant a taking with intent to deprive permanently. It is obvious from the many definitions attributed to the word "feloniously" that the manner in which a court defines it in one instance will not control the definition to be applied in a different situation. For definitions see, 36 C.J.S. Feloniously p. 633.

What was the intent of the legislature when it enacted Section 59-513? Obviously, the legislature intended to give force to the rule of the common law that no man shall be permitted to profit by his own wrongful act. In McAllister v. Fair, 1906, 72 Kan. 533, 84 P. 112, 113, 3 L.R.A.,N.S., 726, the court said:

"* * * That any one should be given property as the result of his crime is abhorrent to the mind of every right-thinking person, and is a strong reason why the lawmakers, in fixing the rules of inheritance and prescribing punishment for felonious homicide, should provide that no person should inherit property from one whose life he has feloniously taken. * * *"

The McAllister decision, which upheld the right of a convicted murderer to take by inheritance the property of his victim, undoubtedly brought about the enactment by the Kansas legislature of the predecessor to G.S. 59-513 (Ch. 193, Laws of 1907). The 1907 statute provided that any killing was sufficient to bar the one guilty of the killing from taking any property from the victim or his estate. In 1939, the legislature enacted the present statute wherein the word "feloniously" was added to describe the nature of the killing which would work to so bar the convicted party.

To adopt the interpretation for which the intervening defendant contends (i. e., bar by conviction of killing under circumstances such as to render the killing a felony) would be to prohibit those so convicted from taking although they had no intention or desire to actually kill or even harm the insured. The injustice of such interpretation was illustrated by Judge Tuttle in Metropolitan Life Ins. Co. v. McDavid, D.C.E.D.Mich.1941, 39 F.Supp. 228, 231, when he said:

"* * * (L)et us assume that some villain had ravished a neighbor's daughter and the parents of the daughter deliberately planned to take the life of the villain, they armed themselves with weapons and went to the place where the villain was then living, for the deliberate purpose of killing him, that all of the facts and circumstances were such that if either one of the parents had killed the villain they would have been guilty of murder, but the wife, being a poor shot and excited, missed the villain and killed her husband. Under the law of Michigan, the wife would be guilty of murder. * *"

Under Kansas law such a wife would be guilty of murder (G.S. 21-401) and, as the intervenor would have the statute read, would be barred by G.S. 59-513 from receiving any of the insurance proceeds from policies on her husband's life. Certainly, as Judge Tuttle then said of a wife in this predicament:

"* * * (s)he should not be barred from receiving benefits which she otherwise would receive from life insurance on the life of her husband. The reason she should recover would be because she did not intend to kill her husband. No cases have been found which hold that a person is barred from receiving the benefits under a life insurance policy or under a will, or by inheritance, unless he killed and intended to kill the person from whom he was to receive the benefits. In other words, as far as the law has ever gone is to prevent the recovery of benefits which would not have become due and payable except for the intentional taking of the life of the benefactor." (Emphasis supplied.)

A search of the authorities fails to reveal any case where a court in considering a similar statute has adopted as a test the classification of the killing as felony or misdemeanor. The test most generally adopted by the courts is that of intention to cause the death, or as it is often stated, the feloniousness of the act causing the death. 1 Appleman, Ins. L. & P. § 384; 29 Am.Jur., Insurance § 1310; 46 C.J.S. Insurance § 1171. The "intent" or "willfulness" test would clearly coincide with the intent of the legislature when it enacted into statutory law what had been the common-law rule.

It is true that the Kansas Supreme Court has held that one convicted of manslaughter in the third degree was barred by the provisions of the statute which preceded G.S. 59-513. Hamblin v. Marchant, 1918, 103 Kan. 508, 175 P. 678, 6 A.L.R. 1403. However, at the...