
    Lynda R. WHITE v. PENN MUTUAL LIFE INS. CO., Dennis H. East, etc.
    No. 55544.
    Supreme Court of Mississippi.
    June 4, 1986.
    
      Mark W. Prewitt, Vicksburg, for appellant.
    Clarence A. Whitaker, H.M. Yoste, Jr., Bodron & Yoste, William R. Lancaster, R.E. Parker, Jr., Varner, Parker & Ses-sums, Vicksburg, for appellees.
    Before WALKER, P.J., and PRATHER and ANDERSON, JJ.
   ON MOTION FOR STATUTORY DAMAGES

PRATHER, Justice,

for the Court.

A complaint for interpleader was filed by Penn Mutual Life Ins. Co., (hereafter Penn. Life) in the Chancery Court of Warren County interpleading insurance proceeds of $38,948.00 into court. Penn Life had insured the life of Horace C. White, who died on April 16, 1983. Claimants for the insurance proceeds were named as defendants to the complaint of interpleader and included:

(1) Dennis H. East, in his fiduciary capacity as trustee of East Fabricators, Inc. Pension Plan, the policy owner.

(2) Lynda R. White, the ex-wife of the deceased Horace White, who was first named beneficiary of the insurance policy issued January 2, 1980.

(3) Barbara Jean White, individually and as guardian of the person and estate of minor Rhonda Tjuanan [sic] White, a daughter of Horace White, deceased, by a former marriage.

I.

On summary judgment the trial court held that the proceeds of the insurance proceeds should be paid “to Dennis H. East, in trust for disposition under the provisions of the East Fabricators, Inc. Pension Plan to Barbara Jean White, Guardian of Rhonda Tjajuan White, beneficiary of said plan.” The court relied upon an application and beneficiary designation of Horace C. White dated March 21, 1983 which superseded the pension plan issued January 2, 1980. Based upon White’s request, the Pension Plan Trustee, as policy owner, named the minor daughter Rhonda White as beneficiary. Penn Life requested and was granted a dismissal, whereby it was absolved of any further liability in the suit. Lynda R. White appealed to this Court. The chancery court judgment was affirmed per curiam, 486 So.2d 1259 (Miss.1986).

II.

The instant motion for statutory damages of Barbara Jean White, Individually and as Guardian of the person and estate of Rhonda Tjajuan White, a minor, is before the Court. Miss.Code Ann. § 11-3-23 (Supp.1985) is controlling on this question and, in pertinent part, is as follows:

In case the judgment or decree of the court below be affirmed, ... the Supreme Court shall render judgment against the appellant for damages at the rate of fifteen percent (15%), as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of ... personal property, the damages shall be assessed on the value of the property....

The statute is mandatory if the particular case comes within the scope of the statute. Lowicki v. Lowicki, 429 So.2d 917 (Miss.1983).

The question presented by this motion is whether a judgment in this interpleader complaint is for a “sum of money” or for “possession of personal property” within the meaning of the statute.

It is the position of Lynda R. White that this motion for damages is not within the purview of the statute since the trial court judgment only determined the beneficiary of the insurance policy and did not award a “sum of money”. However, the judgment in this record reflects not only a judgment adjudging the owner of the interplead funds to be Dennis East, in trust for the purposes of the ... Pension Plan, but also directed the chancery clerk to pay all inter-plead funds to the trustee.

Upon these facts, this Court holds that the judgment is one for a “sum of money” as well as for “possession of personal property” within the meaning of the statute above and warrants the imposition of the statutory penalty of fifteen per cent (15%) upon the amount of funds interplead into court plus accumulated interest to the date of final judgment in the amount of $39,-819.45. Since Lynda R. White is the unsuccessful appellant, she is assessed with the mandatory penalty.

Penn Life has denied any liability for the penalty. It disclaimed any right or title to the insurance proceeds, affirmed its liability for payment to the proper party, was dismissed by the trial court, and took no part in the appeal. This Court accepts its position.

MOTION FOR ASSESSMENT OF STATUTORY DAMAGES AGAINST LYNDA R. WHITE GRANTED IN FAVOR OF BARBARA JEAN WHITE, AS GUARDIAN OF THE PERSON AND ESTATE OF RHONDA TJUJUAN WHITE, A MINOR, IN CAUSE NO. 19,180 ON CHANCERY DOCKET OF WARREN COUNTY.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.  