
    WOODMEN OF THE WORLD v. DODD et al.
    (Court of Civil Appeals of Texas.
    Feb. 2, 1911.
    Rehearing Denied Feb. 16, 1911.)
    1. Insurance (§ 748) — Benefit Certificates —Forfeiture—“Conviction of a Felony” —“Convict.”
    Where a benefit certificate provided for forfeiture if a member was convicted of a felony, the policy was not forfeited where insured died pending a motion for rehearing on- appeal from a conviction of manslaughter, under Code Cr. Proe. art. 884, providing that the judgment, of conviction if suspended does not become final while an appeal remains undetermined, and Penal Code, art. 27, declaring that an accused person is a convict only after final condemnation by the court of last resort to which it may have been thought proper to appeal.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 748.
    
    For other definitions, see Words and Phrases, vol. 2, pp. 1584-1591; vol. 8, p. 7619.]
    2. Insurance (§ 787) — Forfeiture—Deatii While Violating- the Criminal Laws of the State. .
    Where insured while insane and resisting arrest was killed by the sheriff, his insurance was not forfeited under a provision for forfeiture in case insured met his death while violating the criminal laws of the state.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1957; Dec. Dig. § 787.]
    Appeal from District Court, Marion County ; R. D. Hart, Special Judge.
    Action by Mrs. Eddie Proctor Dodd and others against the Woodmen of the World. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    The suit is by the beneficiary on; a policy of life insurance issued, by appellant, a fraternal benevolent association,' to C. H. Proctor. Tbe appellant claimed that tbe policy, according to its terms, was avoided because tbe insured bad been convicted of a felony, and because tbe insured when be met bis death was violating tbe criminal laws by resisting and assaulting tbe officer wbo came to arrest bim. Appellees’ replication to tbe plea of avoidance was that tbe judgment of conviction for manslaughter in tbe district court was pending on appeal to tbe Court of Criminal Appeals, and was not finally disposed of at tbe time of the death, and that as to tbe second ground of avoidance be was insane and irresponsible in law for bis acts and conduct. Tbe policy provides that it shall be null and void, and all rights shall be absolutely forfeited without notice, “if tbe member bolding this .certificate shall be convicted of a felony, or should •die from an act or acts in consequence of tbe violation or attempted violation of tbe laws of tbe state.” Tbe facts are that tbe insured was indicted for murder. On tbe first trial tbe jury disagreed, and the second trial resulted in a conviction for manslaughter. Tbe case was appealed to tbe Court of Criminal Appeals, and on June 24, 1908, the judgment of tbe trial court was affirmed. A motion for rehearing was made and filed, and was pending at tbe death of tbe insured on October 2, 1908. On proper motion of suggestion of his death tbe Court of Criminal Appeals on October 14, 1908, entered an order dismissing tbe motion for rehearing on account of tbe death of appellant. Pending the appeal tbe insured was granted bail; and bíter tbe affirmance of tbe judgment, and before there was any ruling on tbe motion for rehearing, some of bis bondsmen filed an application with tbe clerk of tbe district court to be further relieved as sureties on tbe bond. This application, it is admitted, required tbe clerk to issue a warrant for tbe arrest of Proctor, which warrant was placed in tbe bands of tbe sheriff of tbe county for execution. It appears from tbe evidence that, when tbe sheriff undertook to execute the warrant, tbe acts and conduct of the insured towards him became so violent and dangerous as to require tbe sheriff in bis own necessary self-defense to shoot and kill tbe insured. The appellees offered evidence going to show that tbe insured was insane and legally irresponsible, for bis acts and conduct toward tbe sheriff. Tbe trial was to a jury, and verdict for appellees.
    P. H. Prendergast and E. E- Brougber, for appellant. T. D. Rowell,' for appellees.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   ■ LEVY, J.

(after stating tbe facts as above). Appellant for error contends that the court should have directed a verdict in its favor because the agreed facts show that the insured bad been convicted of a felony prior to bis death, and this conviction avoided the policy sued on. According to the terms of tbe policy, all rights and benefits thereunder ceased when tbe insured member “shall be convicted of a felony.” Clearly these words of tbe policy were used, we think, to denote the final result of tbe prosecution in a court. of competent jurisdiction. He must have been finally adjudged guilty. Tbe words import all that the statute of tbe state in which tbe trial is had requires before bolding tbe insured to tbe status of a convict. If the words were to be so construed as to signify merely tbe finding of the jury that tbe insured was guilty, then a forfeiture of tbe policy would be worked then and there on tbe verdict of tbe jury, although tbe trial court on motion for new trial or the appellate court on appeal should set aside the verdict on legal grounds. Tbe accomplishment of such a result to tbe rights of a member could not reasonably have been intended by a benevolent association. Evidently the purpose of inserting tbe condition in the policy was to protect tbe order against and withdraw benefits from any member who subsequently by bis violation of the felony laws was finally declared by due process of law a felon. So interpreting tbe meaning of tbe language of tbe policy, it could not be said, we think, that the insured at the time of bis death had under tbe laws of this state tbe legal status of a convict. Article 884, Code Cr. Proc. 1895, provides that tbe judgment of conviction is suspended, and does not become final while tbe appeal remains undetermined.’ Article 27, Pen. Code 1895, provides that an accused person is “a convict” only after final condemnation by tbe highest court of resort which by law has jurisdiction, and to which be may have thought proper to appeal. See Jones v. State, 32 Tex. Cr. R. 135, 22 S. W. 404; Brannan v. State, 44 Tex. Cr. R. 399, 72 S. W. 184. The motion for rehearing pending in tbe Court of Criminal Appeals operated to suspend tbe judgment of conviction, and,* as long as it was pending and undisposed of, there was no final judgment of conviction against the accused. It was admitted that tbe insured died before tbe motion for rehearing was finally acted on, and therefore tbe policy was not avoided on tbe ground of a conviction of a felony, as contemplated by the policy, sued on.

Tbe appellant next for error contends that tbe evidence is insufficient to establish tbe fact that Proctor was insane at tbe time be resisted tbe officer and was killed. If Proctor were insane, then be was legally irresponsible for bis acts and conduct, and tbe policy would not be avoided. Tbe facts in evidence were amply sufficient, we think, to raise and to require tbe court to pass the issue to tbe jury, and their finding is warranted by the testimony. And we do not feel authorized to disturb the finding merely because there are contradictory facts. It would serve, no useful purpose to set out the facts.

The judgment was ordered affirmed.  