The majority opinion holds in substance that plaintiff's petition is a bill of interpleader. But the writer is of the opinion that the petition was neither such bill of interpleader as was recognized as an equitable remedy within the jurisdiction of courts of chancery before the adoption of the Code, nor is it recognizable as conforming to any statutory procedure. The petition fails as a pre-Code bill of interpleader in a vital respect, that is, the plaintiff does not appear as a stakeholder wholly without interest, direct or indirect, in the outcome of the issues in the action. Hoyt v. Gouge, 125 Iowa 603, 101 N.W. 464; City of Montpelier v. Cap. Sav. Bank, 75 Vt. 433, 56 A. 89, 98 Am. St. Rep. 834; Groves v. Sentell, 153 U.S. 465, 14 S. Ct. 898, 38 L. Ed. 785. The reason lies in the plaintiff's interests in the following issues involved in the cause of action stated in the petition.
First, the policy of insurance provided that the insurer may deduct from the amount of the policy any unpaid premiums. While there is no controversy presented as to the right of deductions if there are premiums which are unpaid, because that right is a part of the policy itself, nevertheless the question of payment or nonpayment of these premiums was a controversial fact not settled by the terms of the policy. This was a controversial issue to be determined by evidence of payment or nonpayment of premiums subsequent to the issuance of the policy. Consequently plaintiff was not a disinterested stakeholder because in its petition it proposed to have adjudicated whatever such controversy there might be. The case of McNamara v. Prov. S.L. Assur. Soc., (C.C.A.) 114 Fed. 910, cited in the opinion seems to assume the liability for premiums in that case, without discussion of a situation in which nonpayment is controverted by the beneficiaries. *Page 699
Second, the petition sets out that plaintiff's liability is uncertain and not determined because its liability is one of two things, either to pay twenty thousand dollars in cash after deducting premiums unpaid, or to pay one of the beneficiaries interest on that amount at a fixed rate during her lifetime, the $20,000 being in that event not payable before the end of such life. The petition prays that this question be tried to the court and the nature of plaintiff's liability determined. This is a part of the relief sought by plaintiff. It cannot be said that it was a matter of pure indifference to the plaintiff whether it presently paid the $20,000 or deferred the payment thereby becoming liable to pay a fixed rate of interest for a period that might extend over a great many years. It is a matter of common knowledge that tendencies in interest rates are such that payment of interest on the $20,000 for possibly a long period of years at a pre-agreed fixed rate would involve the element of substantial profit or loss to the plaintiff, dependent upon the rate of income that could be safely realized on the money while remaining in plaintiff's hands. In reason it cannot be said that this was a matter to be adjudicated in which plaintiff was a disinterested stakeholder. Welch v. Boston, 208 Mass. 326, 94 N.E. 271, 35 L.R.A. (N.S.) 330. The so-called "offer" in plaintiff's petition that it would comply with whatever the court might determine with respect to plaintiff's liability, begs the question, because after the matter sought to be litigated had been determined the plaintiff would of necessity comply with the decree. While this is termed an "offer" it is not an offer in the sense that plaintiff thereby extends anything to defendants or waives any part of the controversy plaintiff raises in its petition.
Third, the petition seeks as affirmative relief against defendants that upon execution of a supplemental contract between plaintiff and beneficiaries, it be decreed by the court that the original policy thereupon stand canceled and plaintiff relieved from further liability thereunder. This presented an issue made by plaintiff in its own behalf as litigant and not as a disinterested stakeholder. The issue was whether plaintiff was entitled to substitute for the policy a new agreement. If plaintiff prevailed thereon there was necessarily an issue as to what would be the terms of the new contract. The seeking of an adjudication that the old policy and the liabilities thereunder be canceled and that the beneficiaries be dependent thereafter upon *Page 700 such terms as the court might fix in a new and supplementary contract, is not consistent with plaintiff's role of disinterested stakeholder.
Fourth, the so-called bill of interpleader fails in another respect, that is the money was not brought into court for disposition, but it substitutes for the necessity of so doing a proposal to litigate certain matters in order to determine the rights and duties of plaintiff. The situation made by plaintiff seems to be this. At the commencement of the suit it was not able to bring in the money and was not a disinterested stakeholder because plaintiff sought to litigate first, the character and extent of its liability it had created for itself by its contracts. Admittedly after these controversies had been adjudicated plaintiff then knowing its liability could assume the role of disinterested stakeholder and bring into court whatever was required by the decree. But the question is whether at the commencement of the suit and on the face of the petition itself plaintiff presents a true bill of interpleader. Then is when the test is made. It is not sufficient to say that sometime in the future, after the controversies are determined, plaintiff may then be able to occupy the position of a disinterested stakeholder.
Attention is also called to certain things in the record. When plaintiff's petition was filed it had no semblance to a bill of interpleader because it denied liability for $20,000 demanded by the beneficiaries. The petition alleged the liability was only $10,000. While the issues so stood Pearl D. Johnston, a beneficiary, brought an action on the policy. At that time nothing in the nature of a true bill of interpleader had been filed by plaintiff herein. Subsequently to the filing of the law action by the beneficiary plaintiff amended the petition admitting its full liability of $20,000. The majority opinion states that the insurance company has no interest in this suit other than to be protected against having to defend several lawsuits and in seeing that the money is paid to the right parties. The opinion also states that for these purposes section 11002, 1935 Code, is not applicable. But there is no mention of section 10981, 1935 Code, which requires that when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, it must order them to be brought in. It accordingly appears to the writer that there should not be an inference gained from the opinion of the majority that the plaintiff did *Page 701 not have a plain, speedy and adequate remedy at law in the law action.
There was good reason for the strict rules applied to bills of interpleader in the early chancery practice. One such reason is suggested by the advantages accorded to the plaintiff, namely, nonliability for court costs, and the payment from the funds to plaintiff of attorney fees. The reasons for strict construction still obtain. The writer would reverse on the ground that plaintiff's petition does not exhibit a true bill of interpleader and consequently plaintiff is not entitled to enjoin the law action.