Woodmen of the World v. Dodd , 134 S.W. 254 ( 1911 )

Appellant for error contends that the court should have directed a verdict in its favor because the agreed facts show that the insured had been convicted of a felony prior to his death, and this conviction avoided the policy sued on. According to the terms of the policy, all rights and benefits thereunder ceased when the insured member "shall be convicted of a felony." Clearly these words of the policy were used, we think, to denote the final result of the prosecution in a court of competent jurisdiction. He must have been finally adjudged guilty. The words import all that the statute of the state in which the trial is had requires before holding the insured to the status of a convict. If the words were to be so construed as to signify merely the finding of the jury that the insured was guilty, then a forfeiture of the policy would be worked then and there on the verdict of the jury, although the trial court on motion for new trial or the appellate court on appeal should set aside the verdict on legal grounds. The accomplishment of such a result to the rights of a member could not reasonably have been intended by a benevolent association. Evidently the purpose of inserting the condition in the policy was to protect the order against and withdraw benefits from any member who subsequently by his violation of the felony laws was finally declared by due process of law a felon. So interpreting the meaning of the language of the policy, it could not be said, we think, that the insured at the time of his death had under the laws of this state the legal status of a convict. Article 884, Code Cr.Proc. 1895, provides that the judgment of conviction is suspended, and does not become final while the appeal remains undetermined. Article 27, Pen. Code 1895, provides that an accused person is "a convict" only after final condemnation by the highest court of resort which by law has jurisdiction, and to which he may have thought proper to appeal. See Jones v. State, 32 Tex. Crim. 135, 22 S.W. 404; Brannan v. State,44 Tex. Crim. 399, 72 S.W. 184. The motion for rehearing pending in the Court of Criminal Appeals operated to suspend the 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 the insured died before the motion for rehearing was finally acted on, and therefore the policy was not avoided on the ground of a conviction of a felony, as contemplated by the policy sued on.

The appellant next for error contends that the evidence is insufficient to establish the fact that Proctor was insane at the time he resisted the officer and was killed. If Proctor were insane, then he was legally irresponsible for his acts and conduct, and the policy would not be avoided. The facts in evidence were amply sufficient, we think, to raise and to require the court to pass the issue to the 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.