Swavely v. Prudential Ins. Co. of Am.

• Decision Date: 08 December 1931
• Citation: 157 A. 394
• Parties: SWAVELY v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: New Jersey Supreme Court

157 A. 394

SWAVELY

v. PRUDENTIAL INS. CO. OF AMERICA.

Supreme Court of New Jersey, Mercer County.

Dec. 8, 1931.

Action by Howard M. Swavely against the Prudential Insurance Company of America. On motion to strike out the answer.

Motion denied.

George Pellettieri, of Trenton, for plaintiff.

Katzenbach, Gildea & Rudner, of Trenton, for defendant.

OLIPHANT, Circuit Judge, sitting as Supreme Court Commissioner.

The plaintiff sues to recover the amount of two policies of life insurance issued by the defendant upon the joitit lives of the plaintiff and his wife, Elizabeth Swavely. The policies total $5,000 and are identical in terms, the amount of the insurance being payable to the survivor as beneficiary.

The defendant in its answer sets up two separate defenses: One, that the plaintiff cannot recover upon the policies in question because he willfully, deliberately, and pre-meditatedly murdered his wife, Elizabeth Swavely, on or about November 7, 1930; and, the other, that the plaintiff was convicted of murder in the first degree in the court of oyer and terminer of the county of Hudson and that his conviction makes his guilt of the murder of his wife res judicata. Upon the argument of this motion the defendant conceded that the second defense is untenable and withdrew it.

The plaintiff moves to strike out the defendant's answer as frivolous, thus questioning the legal sufficiency of the defendant's plea that the plaintiff willfully, deliberately, and premeditatedly murdered his wife, and cannot, therefore, recover upon the policies which form the basis of the suit.

There appears to be no reported case in this state dealing with the question now raised by the plaintiff. The case of Sorbello v. Mangino, 108 N. J. Eq. 292, 155 A. 6, cited by the plaintiff, does not support his position. In that case a bill was filed in the Court of Chancery to restrain the defendant "from asserting sole ownership to" certain land "and from conveying the same." The defendant had owned the land as tenant by the entirety with his wife and had been convicted of murdering her. Vice Chancellor Fielder, who heard the case, held that the evidence offered was not sufficient to show the murder, unless the record of the conviction of the defendant could be used for that purpose. After discussing the statutes and authorities in this and other states, he decided that the record of conviction was not admissible as proof of the murder, and, therefore, that it was not proved that Mangino had murdered his wife. Thereafter the learned Vice Chancellor discussed the authorities in other states dealing with the question of whether or not a murderer can take property as an heir or next of kin or tenant by the entirety of the person he had murdered, but reached no conclusion, and suggested that the Legislature ought to set this matter at rest once and for all.

While there is a difference of opinion among the courts of other states as to whether or not a murderer can inherit from his victim under statutes containing no exceptions, there, is no such difference of opinion as to the effect of the murder of an insured person by the beneficiary named in an insurance policy. In fact, although the plaintiff's counsel has shown great diligence, he has been unable to find a single case in which a beneficiary has been permitted to recover upon a life insurance policy when he has murdered the insured. Decisions to the contrary are innumerable. Many of them cite with approval the language of the United States Supreme Court in Mutual Life Insurance Co. of New York v. Julia Armstrong, Adm'x, 117 U. S. 591, 6 S. Ct. 877, 881, 29 L. Ed. 997, where it was said: "It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of the party whose life he had feloniously taken."

In the case of Schmidt v. Northern Life Association, 112 Iowa, 41, 83 N. W. 800, 801, 51 L. R. A. 141, 84 Am. St. Rep. 323, the Supreme Court of Iowa said: "Indeed, the unbroken voice of authority is to the effect that a beneficiary in an insurance policy who murders the insured forfeits his rights thereunder. * * * Any other rule...