B-167739, OCT. 13, 1969

B-167739, OCT. 13, 1969

GRATUITIES--SIX MONTHS' DEATH--MEMBER KILLED BY PERSON CLAIMING REGARDING WIFE'S CLAIM FOR 6 MONTHS' DEATH GRATUITY AND ARREARS OF PAY DUE IN CASE OF MEMBER IN SERVICE DYING FROM KNIFE WOUND INFLICTED BY WIFE, ALTHOUGH SHE WAS FOUND NOT GUILTY IN CRIMINAL PROCEEDINGS AND VETERANS ADMINISTRATION (VA) DETERMINED NO WRONGFUL OR INTENTIONAL HOMICIDE PRECLUDING DISTINGUISHABLE VA BENEFITS WAS COMMITTED, IT WOULD BE INAPPROPRIATE FOR GENERAL ACCOUNTING OFFICE TO MAKE PRESENT DETERMINATION ON CLAIM, WHILE CIVIL SUIT IS PENDING FOR SERVICEMAN'S GROUP LIFE INSURANCE, SINCE PUBLIC POLICY IS AGAINST BENEFIT PAYMENTS TO HEIRS OR BENEFICIARIES FELONIOUSLY CAUSING DEATH, CRIMINAL ACQUITTAL NOT BEING RES JUDICATA IN CIVIL ACTION, DEATH GRATUITY IS IN NATURE OF FREE INSURANCE AND SAME PRINCIPLES APPLY TO ARREARS OF PAY AS ARE INVOLVED IN COURT CASE WITH RESPECT TO LIFE INSURANCE.

TO MRS. MADIA WROTEN:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY AND ARREARS OF PAY DUE IN THE CASE OF YOUR LATE HUSBAND, TECHNICAL SERGEANT JIMMIE DEAN WROTEN, WHO DIED MARCH 23, 1969, WHILE SERVING IN THE UNITED STATES AIR FORCE.

THE RECORDS SHOW THAT YOUR HUSBAND'S DEATH RESULTED FROM A KNIFE WOUND INFLICTED BY YOU ON MARCH 23, 1969. THEY ALSO SHOW THAT YOU WERE BROUGHT BEFORE A JUSTICE OF THE PEACE COURT IN AND FOR DADE COUNTY, FLORIDA, ON JUNE 6, 1969, AND AFTER HEARING THE CIRCUMSTANCES SURROUNDING THE DEATH OF YOUR HUSBAND, THE COURT DISMISSED THE CHARGE OF SECOND-DEGREE MURDER AGAINST YOU.

A COPY OF THE HEARING BEFORE THE JUSTICE OF THE PEACE INCLUDES THE TESTIMONY OF YOU AND YOUR NEIGHBORS TO THE EFFECT THAT YOUR HUSBAND BECAME INTOXICATED AT TIMES AND CAUSED BODILY HARM TO YOU. IT WAS BROUGHT OUT AT THE HEARING THAT IN THE EARLY HOURS OF MARCH 23, 1969, YOU WERE HEARD TO PLEAD WITH YOUR HUSBAND TO GO TO BED BUT THAT A FEW MINUTES AFTER 9:00 A.M., YOU KNOCKED ON THE DOOR OF A NEIGHBOR AND ASKED THAT AN AMBULANCE BE CALLED SINCE YOU HAD STABBED YOUR HUSBAND. YOU ALSO TESTIFIED AMONG THE OTHER THINGS YOUR HUSBAND HAD DONE THAT MORNING THAT HE KNOCKED YOU DOWN IN THE KITCHEN, THAT YOU PICKED UP A KNIFE LAYING ON THE CABINET, AND, WHILE YOU CANNOT REMEMBER, YOU THINK YOU RAN AFTER HIM INTO THE BEDROOM WHERE HE WAS LYING ON THE BED AND STABBED HIM IN THE BACK.

IT FURTHER APPEARS THAT IN PROCEEDING FROM THE KITCHEN TO THE BEDROOM IN WHICH YOUR HUSBAND WAS STABBED, YOU PASSED BY DOORS IN THE KITCHEN AND LIVING ROOM THROUGH WHICH YOU COULD HAVE DEPARTED FROM THE HOUSE, AND AT THAT TIME YOUR HUSBAND WAS NOT MOLESTING YOU.

IN OUR DECISION OF AUGUST 27, 1954, 34 COMP. GEN. 103, COPY ENCLOSED, IT WAS HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY, COMPENSATION, OR OTHER BENEFITS TO AN HEIR OR BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENT BECOMES DUE, EVEN THOUGH SUCH HEIR OR BENEFICIARY BE FOUND NOT GUILTY BY A TRIAL JURY IN CRIMINAL PROCEEDINGS GROWING OUT OF THE HOMICIDE, CITING UNITED STATES V KWASNIEWSKI, 91 F.SUPP. 847. IT WAS POINTED OUT THAT, IN LINE WITH THE GENERAL PRINCIPLE OF LAW THAT A PERSON MAY NOT PROFIT BY HIS WRONGFUL ACTS, THE COURTS HAVE CONSISTENTLY HELD THAT WHERE A BENEFICIARY OF LIFE INSURANCE INTENTIONALLY OR FELONIOUSLY CAUSES THE DEATH OF THE INSURED, THERE CAN BE NO RECOVERY ON THE POLICY BY SUCH BENEFICIARY, CITING SWAVELY V PRUDENTIAL INSURANCE COMPANY OF AMERICA, 157 A. 394, AND CASES AND AUTHORITIES THERE CITED.

IN UNITED STATES V BURNS, 103 F.SUPP. 690, THERE WAS INVOLVED AN ACTION BY THE UNITED STATES TO DETERMINE THE RIGHTS OF THE PRINCIPAL AND CONTINGENT BENEFICIARIES TO THE PROCEEDS OF A NATIONAL SERVICE LIFE INSURANCE POLICY. IT APPEARED THAT THE INSURED DIED AS A RESULT OF A GUNSHOT WOULD INFLICTED BY THE PRINCIPAL BENEFICIARY AND WIFE OF THE INSURED AFTER BEING VIOLENTLY ATTACKED BY HER HUSBAND. ON HER TRIAL FOR THE MURDER OF HER HUSBAND, THE JURY FOUND HER NOT GUILTY. THE COURT ADOPTED AND FOLLOWED THE GENERAL RULE THAT ACQUITTAL ON A CRIMINAL CHARGE IS NOT RES JUDICATA IN A SUBSEQUENT CIVIL ACTION.

REGARDING THE QUESTION WHETHER THE WIFE WAS ENTITLED TO THE INSURANCE, SINCE SHE CAUSED THE DEATH OF HER HUSBAND, THE COURT EXPRESSED THE OPINION THAT IT WAS CONVINCED FROM AN EXAMINATION OF THE UNDISPUTED FACTS, AS DISCLOSED BY THE RECORD IN THE CRIMINAL CASE, THAT THE WIFE WAS NOT ENTITLED TO THE INSURANCE. THE JUDGMENT IN THE BURNS CASE WAS AFFIRMED BY THE UNITED STATES FOURTH CIRCUIT COURT OF APPEALS (200 F.2D 106), STATING IN PART:

"* * * THE JUDGE BELOW PROPERLY HELD THAT THE ACTION OF THE STATE COURT IN THE CRIMINAL CASE WAS NOT BINDING IN THIS CASE AND UPON THE EVIDENCE SUBMITTED TO HIM HELD THAT THE KILLING WAS NOT JUSTIFIED ON THE THEORY OF SELF DEFENSE BUT THAT THE WIDOW WAS GUILTY OF THE INTENTIONAL AND FELONIOUS SLAYING OF THE INSURED. WE THINK THAT THIS WAS CLEARLY RIGHT * * *" ALSO, SEE TAYLOR V UNITED STATES, 113 F.SUPP. 143, 152, WHERE THE FOLLOWING LANGUAGE APPEARS:

"IF A BENEFICIARY INTENTIONALLY AND FELONIOUSLY KILLS THE INSURED, HE OR SHE IS BARRED FROM CLAIMING INSURANCE PROCEEDS ON THE LIFE OF THE INSURED. AUSTIN V UNITED STATES, 7 CIR., 125 F.2D 816: UNITED STATES V BURNS D.C., MD., 103 F.SUPP. 690, AFFIRMED 4 CIR., 200 F.2D 106; UNITED STATES V KWASNIEWSKI, D.C. MICH., 91 F.SUPP. 847. AND AN ACQUITTAL ON A CRIMINAL CHARGE IS NOT RES JUDICATA IN A SUBSEQUENT CIVIL ACTION UPON THE POLICY. UNITED STATES V BURNS, SUPRA; UNITED STATES V KWASNIEWSKI, SUPRA; HORN V COLE, ADMINISTRATOR, 203 ARK. 361; 156 S.W. 2D 787. THUS, THE FACT THAT THE PLAINTIFF HEREIN WAS ACQUITTED OF THE CRIMINAL CHARGE PROSECUTED AGAINST HER IN THE STATE COURT IS NOT BINDING ON THIS COURT, BUT THE COURT IS CONVINCED FROM THE TESTIMONY THAT IN SHOOTING HER HUSBAND THE PLAINTIFF WAS ACTING IN NECESSARY SELF DEFENSE AND SHOULD NOT BE DENIED RECOVERY UNDER THE POLICY BY REASON OF THAT FACT.'

IN LINE WITH THE ABOVE CASES IS THE DECISION OF THE FLORIDA SUPREME COURT IN CARTER V CARTER, FLA. 1956, 88 SO. 2D 153. THE CASE INVOLVED THE CLAIMS OF THE WIDOW AND OTHERS TO THE PROCEEDS OF INSURANCE ON THE LIFE OF THE HUSBAND WHOM THE WIDOW HAD BEEN ACQUITTED OF MURDERING. THE SUPREME COURT UPHELD AN ORDER OF THE CIRCUIT COURT DENYING THE WIDOW'S MOTION, AS DESIGNATED BENEFICIARY, FOR SUMMARY JUDGMENT BASED ON HER ACQUITTAL IN THE CRIMINAL ACTION.

THE DECISION STATED IN PART:

"* * * THIS COURT IS COMMITTED TO THE RULE THAT THE VERDICT AND JUDGMENT IN A CRIMINAL PROCEEDING ARE NOT ADMISSIBLE IN A CIVIL PROCEEDING AS EVIDENCE OF THE GUILT OR INNOCENCE OF A PARTY TO THE CIVIL CAUSE.'

"THE RECORD BEFORE US REVEALS NOTHING AT ALL WITH REFERENCE TO THE FACTS THAT PRODUCED THE HOMICIDE. HOWEVER, IF AT THE TRIAL A PREPONDERANCE OF THE EVIDENCE SHOULD ESTABLISH THE FACT THAT THE HOMICIDE WAS INTENTIONAL AND UNLAWFUL IN NATURE AND THEREFORE WAS WITHOUT THE PURIFYING EFFECT OF EXCUSE OR JUSTIFICATION, THE PETITIONER INSOFAR AS THIS CAUSE IS CONCERNED WOULD BE CONFRONTED BY THE RULE HERETOFORE ANNOUNCED THAT A PERSON WILL NOT BE PERMITTED TO PROFIT BY HIS OWN WRONG.' * * *

IT IS OUR UNDERSTANDING THAT AN ADMINISTRATIVE DECISION DATED JULY 28, 1969, BY THE VETERANS ADMINISTRATION REGIONAL OFFICE, ST. PETERSBURG, FLORIDA, CONCLUDED THAT YOU DID NOT WRONGFULLY AND INTENTIONALLY CAUSE THE DEATH OF YOUR HUSBAND. THIS DECISION WAS MADE FOR THE PURPOSE OF DETERMINING YOUR ENTITLEMENT TO VETERANS ADMINISTRATION BENEFITS WHICH ARE ADMINISTERED UNDER LAWS SEPERATE AND DISTINCT FROM THE STATUTORY PROVISIONS GOVERNING THE SETTLEMENT OF DECEDENTS' ACCOUNTS AND THE SIX MONTHS' DEATH GRATUITY.

IT APPEARS FROM A COPY OF A LETTER OF AUGUST 5, 1969, IN THE FILE FROM YOUR ATTORNEY, MR. HACKER, THAT THERE IS PRESENTLY PENDING IN THE CIRCUIT COURT OF DADE COUNTY, FLORIDA, THE CASE OF MADIA WROTEN V SERVICEMEN'S GROUP LIFE INSURANCE AND THE PRUDENTIAL LIFE INSURANCE COMPANY FOR THE AMOUNT OF $10,000 LIFE INSURANCE WHICH YOU CLAIM IS PAYABLE TO YOU AS WIDOW OF SERGEANT WROTEN.

WE HAVE BEEN INFORMED, HOWEVER, THAT UNDER THE RULES SET FORTH IN THE COURT DECISIONS CITED ABOVE, THE PRUDENTIAL LIFE INSURANCE COMPANY IS OF THE OPINION THAT EVEN THOUGH THE CRIMINAL CHARGES AGAINST YOU WERE DISMISSED, YOU MAY HAVE FORFEITED YOUR RIGHT TO THE INSURANCE UNDER THE CIRCUMSTANCES WHICH RESULTED IN THE DEATH OF SERGEANT WROTEN. HENCE, THE INSURANCE COMPANY WILL MAKE PAYMENT ONLY UPON A DETERMINATION BY THE COURT AS TO THE PERSON OR PERSONS ENTITLED TO RECEIVE THE AMOUNT DUE.

THE SIX MONTHS' DEATH GRATUITY IS IN THE NATURE OF FREE INSURANCE PROVIDED BY THE GOVERNMENT AND THE SAME PRINCIPLES ARE FOR CONSIDERATION IN DETERMINING ENTITLEMENT TO SUCH PAYMENT AND THE ARREARS OF PAY AS ARE INVOLVED IN THE COURT CASE WITH RESPECT TO THE LIFE INSURANCE. CONSEQUENTLY, IT WOULD BE INAPPROPRIATE FOR THIS OFFICE TO MAKE ANY DETERMINATION REGARDING THE GRATUITY AND THE ARREARS OF PAY WHILE THE MATTER OF THE INSURANCE IS BEING LITIGATED IN THE FLORIDA COURTS. HOWEVER, IF YOU OR YOUR ATTORNEY FURNISHES US A CERTIFIED COPY OF THE FINAL DECREE SHOWING THE COURT'S ACTION IN THAT CASE, WE WILL GIVE YOUR CLAIM FURTHER CONSIDERATION.