Appeal from Circuit Court, Multnomah County. Phillip J. Roth, Judge.
Frank H. Lagesen, Portland, argued the cause for appellant. With him on the briefs were Cosgrave & Kester, Portland.
Nels Peterson, Portland, argued the cause for respondent. With him on the brief were Peterson, Chaivoe & Peterson, Portland.
This was an action for the proceeds of a life insurance policy and for attorney fees. The trial was had before the court without a jury and judgment was awarded to plaintiff for both the proceeds of the policy and attorney fees. Defendant appealed only from the award of attorney fees.
Defendant insured the life of Harry W. Gore. At the time of the insured's death, the primary beneficiary named in the policy was "Myrl B. Gore, wife," the present plaintiff. However, she was not the wife of the insured at the time of his death because they had been divorced. The secondary beneficiaries were the insured's two children.
Plaintiff made demand upon defendant for the entire proceeds of the policy, as did the two children. Subsequently, an independent action was brought against defendant on each claim. Defendant at no time denied that it was liable on the policy. It filed an answer in the present case, stating that a second claim had been made against it for the proceeds of the policy, that it had no beneficial interest in the proceeds of the policy, that it was uncertain to whom the proceeds belonged, and that it was willing to deliver the proceeds to such person as the court might direct, such proceeds to be held during the pendency of the actions. The defendant then requested the court to consolidate the two actions and to require the plaintiffs to interplead and litigate who was entitled to the proceeds.
Plaintiff filed a motion to strike defendant's request for interpleader, but the trial court denied the motion. Thereafter, the claimants and the defendant stipulated to the entry of the following order of the trial court:
"(1) Defendant Prudential Insurance Company of America shall deposit with the registry of this Court the proceeds of insurance policy No. 32215946 in the amount of $6,963.10, such proceeds being the subject matter of the dispute between the plaintiffs in the above captioned cases.
"(2) The above captioned cases are consolidated for purposes of trial and determination of the person or persons lawfully entitled to the proceeds of the above policy of insurance."
Pursuant to the order, defendant paid the specified amount into court to await the outcome of the trial of ...