New York Life Ins. Co. v. Miller

• Decision Date: 12 January 1944
• Docket Number: No. 12680.,12680.
• Citation: 139 F.2d 657
• Parties: NEW YORK LIFE INS. CO. v. MILLER.
• Court: U.S. Court of Appeals — Eighth Circuit

139 F.2d 657 (1944)

NEW YORK LIFE INS. CO. v. MILLER.

No. 12680.

Circuit Court of Appeals, Eighth Circuit.

January 12, 1944.

Ferdinand H. Pease, of New York City, Virgil Willis, of Harrison, Ark., and A. F. House, of Little Rock, Ark., for appellant.

No appearance for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

PER CURIAM.

This action was brought in a state court of Arkansas by the appellee, Dora Miller, a resident of that State, against the appellant, to recover upon a policy of life insurance in which she was the beneficiary. The policy was issued in January, 1930, by the appellant, a life insurance company of New York, to Flora M. Maddox, later Flora M. Dillon, a citizen of California, who died in December, 1941, while the policy was in force. The appellant removed the case to the United States District Court for the Western District of Arkansas, and by answer and cross-complaint converted it into an action in interpleader, with Dora Miller (the appellee), Carl Maddox, the first husband of Flora M. Dillon, the insured, (from whom she had been divorced September 9, 1931), and Claude Dillon, her second husband, as adverse claimants. In its answer the appellant admitted its liability under the policy, but asserted its inability to determine whether all premiums were paid by the insured or whether Carl Maddox and Claude Dillon, named as cross-defendants, contributed to the payment of premiums. In its cross-complaint the appellant asserted that it had deposited the amount due upon the policy in the registry of the court; that there were two or more adverse claimments, citizens of different states, who claimed to be entitled to the money, namely, Dora Miller, a citizen of Arkansas, Carl Maddox, a citizen of Colorado, and Claude Dillon, a citizen of California; that Carl Maddox claimed that his individual and community funds were used in the payment of premiums on the policy and that he was entitled to a community interest in the proceeds of the policy; that Claude Dillon made a similar claim; and that the appellant could not, with safety to its own interest, recognize any of the conflicting claims. The prayer of the cross-complaint was for a determination of the rights of the appellee and the cross-defendants to the fund paid into court, for an injunction against the bringing of other suits upon the policy, and for an allowance of costs and an attorneys' fee.

Upon the filing of the appellant's answer and cross-complaint, the court entered an order for the service of process on the cross-defendants, Maddox and Dillon, and enjoining them from prosecuting other suits upon the policy. Maddox filed a disclaimer, and Dillon failed to answer. The appellee moved for judgment by default against Dillon and for a judgment against the appellant for the amount due under the policy, and, in addition, for the 12 per cent penalty and attorney's fees provided by the statute of Arkansas in cases in which an insurance company has failed to pay the amount due upon a policy within the time specified in the policy. Section 7670 of the 1942 Supp. to Pope's Digest of the Statutes of Arkansas 1937. The court entered judgment against the appellant as prayed for by the appellee, including in the judgment the statutory penalty and an attorney's fee of $300, and required that the fund in the registry of the court be turned over to counsel for the appellee and be credited upon the judgment against the appellant. The court denied the appellant's request for an allowance for attorneys' fees. This appeal is from the judgment.

The appellant contends that the court erred ...