B-119863, AUGUST 27, 1954, 34 COMP. GEN. 103

B-119863, AUGUST 27, 1954, 34 COMP. GEN. 103

GRATUITIES - SIX MONTHS' DEATH - DEATH CAUSED BY HEIR OR DISTRIBUTEE WIFE OF ENLISTED MAN WHO KILLED HUSBAND FOLLOWING QUARREL, BUT WHO WAS NOT INDICTED BY GRAND JURY WHICH RETURNED "NO BILL," MAY NOT BE ALLOWED SIX MONTHS' DEATH GRATUITY PAYABLE UNDER ACT OF DECEMBER 17, 1919, AS AMENDED, IN THE ABSENCE OF EVIDENCE CLEARLY ABSOLVING WIFE OF ANY FELONIOUS ACTION INCIDENT TO HUSBAND'S DEATH.

ACTING COMPTROLLER GENERAL KELLER TO COLONEL CLYDE W. O-HERN, DEPARTMENT OF THE AIR FORCE, AUGUST 27, 1954:

BY LETTER OF APRIL 26, 1954, THE OFFICER OF THE DIRECTOR OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF MARCH 29, 1954, SUBMITTING FOR ADVANCE DECISION A VOUCHER COVERING THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF EDWARD FRANCIS, TECHNICAL SERGEANT, UNITED STATES AIR FORCE, WHO DIED ON JULY 6, 1953. THE VOUCHER IS STATED IN FAVOR OF MINNIE LEE FRANCIS, THE DECEDENT'S WIDOW AND DESIGNATED BENEFICIARY.

IT APPEARS THAT WHILE AT HIS HOME IN CAMDEN, NEW JERSEY, ON JULY 6, 1953, SERGEANT FRANCIS WAS MORTALLY STABBED WITH A KNIFE BY THE CLAIMANT, HIS WIFE, DURING A SCUFFLE FOLLOWING A QUARREL BETWEEN THEM WHICH APPARENTLY HAD STARTED THE PREVIOUS NIGHT AT THE HOME OF MRS. FRANCIS' MOTHER AND WAS RESUMED WHEN MRS. FRANCIS, HAVING REMAINED AT HER MOTHER'S HOME OVERNIGHT, WENT TO HER OWN HOME, ACCOMPANIED BY A WOMAN FRIEND, AT ABOUT NOON ON JULY 6, 1953. IT IS INDICATED BY THE RECORD SUBMITTED THAT SHORTLY BEFORE THE FATAL STABBING THE DECEDENT WAS ABUSIVE TO HIS WIFE; THAT HE HAD KICKED HER; AND THAT SHE HAD OBTAINED FROM A "KITCHEN DRAWER" THE KNIFE WITH WHICH SHE STABBED HIM.

AN AIR FORCE OFFICER, APPOINTED TO CONDUCT AN INVESTIGATION OF THE LINE OF DUTY STATUS OF THE DECEDENT, CONCLUDED THAT THE DECEDENT WAS THE AGGRESSOR IN THE SCUFFLE; THAT HIS "AGGRESSIVE AND UNWARRANTED" ACTION WAS THE PROXIMATE CAUSE OF HIS DEATH; AND THAT HIS DEATH WAS "DUE TO HIS OWN MISCONDUCT.' HOWEVER, SUCH FINDING, THAT THE DECEDENT'S DEATH WAS DUE TO HIS OWN MISCONDUCT, WAS REVERSED BY HIGHER AUTHORITY APPARENTLY ON THE BASIS THAT THE WIFE DID NOT HAVE "SUFFICIENT PROVOCATION" FOR THE STABBING. THE OFFICIAL REPORT OF DEATH IN THE CASE FROM THE DEPARTMENT OF THE AIR FORCE CONTAINS AN ENTRY TO THE EFFECT THAT THE DECEDENT'S DEATH WAS NOT DUE TO HIS OWN MISCONDUCT. THE RECORD ALSO SHOWS THAT ON AUGUST 6, 1953, THE CAMDEN COUNTY GRAND JURY RETURNED A ,NO BILL" IN THE CASE OF THE STATE OF NEW JERSEY V. MINNIE LEE FRANCIS, THUS INDICATING THAT THE GRAND JURY DID NOT CONSIDER THE EVIDENCE OF FELONIOUS ACTION ON THE PART OF MRS. FRANCIS SUFFICIENT TO RETURN AN INDICTMENT AGAINST HER FOR KILLING HER HUSBAND. IN THAT CONNECTION, THE RECORD INDICATES THAT MRS. FRANCIS HAS ADMITTED THAT SHE STABBED HER HUSBAND AND AN AUTOPSY REPORT SHOWS THAT THE CAUSE OF HIS DEATH WAS " HEMORRHAGE RESULTING FROM PENETRATING WOUND OF HEART.'

UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, THE SIX MONTHS' DEATH GRATUITY IS PAYABLE TO THE WIDOW OR CHILD OR OTHER DEPENDENT RELATIVE OF AN OFFICER OR ENLISTED MAN OF THE ARMY OR AIR FORCE WHO DIES FROM WOUNDS OR DISEASE WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY PROVIDED THE SERVICEMAN'S DEATH IS "NOT THE RESULT OF HIS OWN MISCONDUCT.'

IT UNIFORMLY HAS BEEN HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT THE 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 PAYMENTS BECOME DUE. A-13608, MAY 29, 1926; A-46506, MAY 9, 1933; A-60953, JUNE 12, 1935; B-115170, JULY 16, 1953; 13 COMP. GEN. 72. AND THIS IS SO EVEN THOUGH SUCH HEIR OR BENEFICIARY MAY BE FOUND NOT GUILTY BY A TRIAL JURY IN CRIMINAL PROCEEDINGS GROWING OUT OF THE HOMICIDE. SEE UNITED STATES V. KWASNIEWSKI, 91 F.1SUPP. 847. WHILE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY HAS BEEN AUTHORIZED, IN A FEW CASES, TO THE HEIR OR BENEFICIARY RESPONSIBLE FOR THE SERVICEMAN'S DEATH, IN SUCH CASES THE RECORD GENERALLY ESTABLISHED WITH REASONABLE CLARITY THE ABSENCE OF ANY FELONIOUS INTENT.

IN LINE WITH THE GENERAL PRINCIPLE OF LAW THAT A PERSON MAY NOT PROFIT FROM HIS OWN WRONGFUL ACTS, THE COURTS CONSISTENTLY HAVE HELD THAT WHERE A BENEFICIARY OF LIFE INSURANCE INTENTIONALLY OR FELONIOUSLY CAUSES THE DEATH OF THE INSURED THERE CAN BE NO RECOVERY OF THE POLICY BY SUCH BENEFICIARY. SEE SWAVELY V. PRUDENTIAL INSURANCE COMPANY OF AMERICA, 157 A. 394, AND CASES AND AUTHORITIES THERE CITED. SEE, ALSO, NEW YORK MUTUAL LIFE INSURANCE COMPANY V. ARMSTRONG, ADMINISTRATRIX, 117 U.S. 591, IN WHICH THE SUPREME COURT OF THE UNITED STATES STATED:

* * * IT WOULD BE A REPROACH TO THE JURISPRUDENCE OF THE COUNTRY, IF ONE COULD RECOVER INSURANCE MONEY PAYABLE ON THE DEATH OF A PARTY WHOSE LIFE HE HAD FELONIOUSLY TAKEN. * * *

WHILE THE CAMDEN COUNTY GRAND JURY APPARENTLY DID NOT CONSIDER THE EVIDENCE ADDUCED BEFORE IT AS SUFFICIENT TO JUSTIFY BRINGING THE CLAIMANT TO TRIAL ON CRIMINAL CHARGES THAT SHE FELONIOUSLY TOOK THE LIFE OF THE DECEDENT, THE FACT THAT IT RETURNED A "NO BILL" DID NOT ABSOLVE THE CLAIMANT OF FELONIOUS ACTION IN CONNECTION WITH THE DEATH NOR PRECLUDE THE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES INVOLVED IN DETERMINING CLAIMANT'S RIGHT TO RECEIVE THE SIX MONTHS' GRATUITY PAY. THE RECORD INDICATES THAT AT SOME TIME DURING HER ARGUMENT WITH SERGEANT FRANCIS THE CLAIMANT LEFT THE ROOM WHERE HE WAS, ENTERED THE KITCHEN AND THERE OBTAINED A KNIFE WHICH SHE PLACED IN HER POCKETBOOK. IT FURTHER INDICATES THAT THEREAFTER SHE REMOVED THE KNIFE FROM THE POCKETBOOK AND DELIBERATELY USED IT IN STRIKING THE DECEDENT THE BLOW WHICH CAUSED HIS DEATH. MOREOVER, IT SEEMS FAIRLY OBVIOUS THAT IF SERGEANT FRANCIS' DEATH WAS NOT DUE TO HIS OWN MISCONDUCT THEN IT MUST HAVE BEEN DUE TO HIS WIFE'S MISCONDUCT AND, AS INDICATED ABOVE, IT HAS BEEN DETERMINED BY COMPETENT AUTHORITY OF THE AIR FORCE THAT IT WAS NOT DUE TO THE SERGEANT'S MISCONDUCT; OTHERWISE THERE WOULD BE NO AUTHORITY FOR PAYMENT OF THE GRATUITY TO ANYONE. SINCE THE RECORD IN THIS CASE DOES NOT CLEARLY ESTABLISH THE ABSENCE OF ANY FELONIOUS INTENT ON THE PART OF MRS. FRANCIS, THIS OFFICE WOULD NOT BE JUSTIFIED IN AUTHORIZING PAYMENT OF THE GRATUITY TO HER.

ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.