Quick v. United Benefit Life Insurance Co.

209 S.E.2d 323 (1974)

23 N.C. App. 504

Ida Mae QUICK, Administratrix of the Estate of Donald Gary Quick v. UNITED BENEFIT LIFE INSURANCE COMPANY, and Jill Quick.

No. 7412DC700.

Court of Appeals of North Carolina.

November 6, 1974.

Lacy S. Hair, Fayetteville, for plaintiff-appellee.

Deborah G. Mailman, Raleigh, for defendant-appellant.

*324 VAUGHN, Judge.

If defendant Quick is a "slayer" within the meaning of Chapter 31A of the General Statutes entitled "Acts Barring Property Rights," she is barred by that Chapter from recovery of the insurance proceeds. The term "slayer" means a person who "shall have been convicted . . . of the wilful and unlawful killing of another . . .." G.S. § 31A-3(3), par. a.

The question is whether a conviction of involuntary manslaughter is a conviction of the "wilful and unlawful killing of another." Presumably one cannot be "convicted" of a slaying other than one that is unlawful, so only the word "wilful" has significance. By omitting the word "wilful" the Legislature would have provided that a conviction of any degree of homicide would make one a "slayer" for purposes of the forfeiture provisions of the act. By inserting the word the Legislature limited forfeiture to those convicted of a higher degree of homicide where the killing must be found to be wilful. "Involuntary manslaughter has been defined to be, `Where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part not amounting to a felony, or from a lawful act negligently done'." State v. Hovis, 233 N.C. 359, 365, 64 S.E.2d 564, 568. It is an unlawful killing without malice, without premeditation and deliberation, "and without intention to kill or inflict serious bodily injury." State v. Wrenn, 279 N.C. 676, 682, 185 S.E.2d 129, 132. Thus to convict of involuntary manslaughter the State is not required to prove a wilful killing. Defendant Quick's conviction, therefore, does not make her a "slayer" within the definition. G.S. § 31A-3(3), par. a.

It is sound public policy that no person be allowed to profit by his own wrong. Parker v. Potter, 200 N.C. 348, 157 S.E. 68. For example, a beneficiary who caused the death of an insured under circumstances amounting to a felony was not allowed to recover under the policy. Anderson v. Parker, 152 N.C. 1, 67 S.E. 53. "But the General Assembly is the policy-making agency of our government, and when it elects to legislate in respect to the subject matter of any common law rule, the statute supplants the common law rule and becomes the public policy of the State in respect to that particular matter." McMichael v. Proctor, 243 N.C. 479, 483, 91 S.E.2d 231, 234. Having concluded that Jill Quick does not forfeit the benefits of the policy as a "slayer" under General Statute Chapter 31A, the remaining question for us is whether that chapter positively supplants the common law as it relates to her act. G.S. § 31A-15 expressly provides that

"As to all acts specifically provided for in this chapter, the rules, remedies, and procedures herein specified shall be exclusive, and as to all acts not specifically provided for in this chapter, all rules, remedies, and procedures, if any, which now exist or hereafter may exist either by virtue of statute, or by virtue of the inherent powers of any court of competent jurisdiction, or otherwise, shall be applicable."

The verdict of guilty of involuntary manslaughter amounts to an acquittal of murder and voluntary manslaughter. In McMichael v. Proctor, supra, the widow admitted firing the shot that killed her husband but pled that in a criminal trial the jury had found her not guilty of any felonious slaying. By statute a widow then forfeited her dower if "convicted of the felonious slaying of her husband." The Court held that the language of the statute providing for forfeiture was positive, direct and unequivocal. The Court expressly declined to add another cause for forfeiture, and held that by including specific reasons for forfeiture the General Assembly had excluded all others. When it included a conviction of felonious slaying as a cause for forfeiture, the General Assembly excluded a slaying which resulted in an acquittal. But see Tew v. Durham Life Ins. Co., 1 N.C.App. 94, 160 S.E.2d 117. So it seems to us that by specifically including a *325 conviction for wilful and unlawful killing as a cause for forfeiture, the General Assembly excluded a slaying which resulted in an acquittal of a "wilful and unlawful" killing and, with statutory exceptions not relevant here, all killings which do not result in a conviction of "wilful and unlawful" killings. Other courts applying similar statutes have so held. Annot., 27 A.L.R.3d 794, 816. But see 40 N.C.L.Rev. 175 at page 221.

Although Jill Quick has been convicted of taking the life of decedent, she was acquitted of the "wilful and unlawful killing" of decedent. It is our view that the General Assembly has elected to legislate in the subject matter of this controversy and that the policy so established supplants the common law rule which would not have allowed her to recover.

The judgment is reversed and the case is remanded for entry of judgment consistent with this opinion.

Reversed and remanded.

PARKER, J., concurs.

CAMPBELL, J., dissents.

CAMPBELL, Judge (dissenting):

I think G.S. § 31A-15 is controlling and this was an unlawful killing and bars any recovery by the slayer. I therefore dissent.