Upon reconsideration of this case in the light of the petition for a rehearing filed herein challenging the allowance to plaintiff below of an attorney's fee in accordance with Section 4265 R.G.S., 6220 C.G.L., which statute the petitioner for *Page 140 rehearing contends is unconstitutional as an attempted unlawful statutory deprivation of the insurance company's property without due process of law if it should be applied to a case wherein the insurance company, as in this case, resisted payment in good faith and upon reasonable grounds, it seems to me that the original judgment should be adhered to upon rehearing, upon the authority of a recent decision by the Supreme Court of the United States settling this precise point (opinion filed March 4, 1934) in the case of Life Casualty Co. of Tennessee v. McCray,291 U.S. 566, S. Ct. 482, 78 L. Ed. 987, wherein that Court held (1st headnote):
"A state statute by which a life insurance company, if it fail to pay upon demand the amount due under a policy after death of the insured, is made liable in addition for fixed damages, reasonable in amount, and for a reasonable attorney's fee for collection, to be taxed by the Court, is consistent with due process and equal protection clauses of the Fourteenth Amendment,even though payment of the policy was resisted in good faith andupon reasonable grounds." (Emphasis supplied.)
In Life Casualty Co. of Tennessee v. McCray, supra, the Federal Supreme Court pointed out that the nature of the insurance business and the peculiar hardships commonly experienced by the beneficiary of an insurance policy when its payment does not follow promptly after a loss under it, justify the special statutory requirements imposed by our statutes in cases like the present, even where the insurance company admittedly acts in the utmost good faith in litigating a claim which it has every reasonable ground for believing should be denied payment unless judicially decreed otherwise.
Such considerations set this case apart from the doctrine *Page 141 announced in Atlantic Coast Line R. Co. v. Wilson Toomer Fertilizer Co., 89 Fla. 224, 104 Sou. Rep. 593; Atlantic Coast Line R. Co. v. Farris Co., 111 Fla. 412, 149 Sou. Rep. 561; Atlantic Coast Line R. Co. v. Connell Schultz, 111 Fla. 572, 149 Sou. Rep. 596, 151 Sou. Rep. 381, which is in nowise required to be abandoned as to litigants affected by the rule declared in such cases.
ELLIS and BROWN, J.J., concur.