appealed from the order awarding counsel fees and costs on the plaintiff's appeal.

We will hereafter refer to the parties as the former husband and former wife.

The former husband contends that the trial court had no jurisdiction to make an award for counsel fees and costs on the appeal of the former wife from the order modifying the allowance of alimony made to her in the final decree of divorce. Section 139 of the Civil Code provides that the award made to the wife for her support during her life in the final decree of divorce may be modified from time to time. Section 137 of the Civil Code provides that during the pendency of the divorce action the court may in its discretion require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance. It also provides: "The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court."

It matters not whether we consider the allowance of costs and attorney's fees to the wife to enable her to appeal from the order modifying the decree as an additional allowance to her for her support as authorized by section 139 of the Civil Code, made after the final decree of divorce, or whether we consider that the divorce action is pending within the meaning of section 137 of the Civil Code, so long as the court retains power to modify the terms of the decree, or whether we regard it as an order deemed necessary for the enforcement of the final decree within the meaning of the provisions for such enforcement contained in section 137 of the Civil Code, above quoted. [1] It is clear that the court has jurisdiction to award the former wife whatever costs and expenses are necessary for the prosecution of an appeal rendered necessary by the application of the husband for the modification of the decree.

[2] It is true that an ordinary action is deemed to be pending only until the appeal from the judgment is determined or until the time for an appeal has passed (sec. 1049, Code Civ. Proc.), but this general provision of the statute with reference to ordinary judgments is modified in the case of divorce actions by the provisions of the code

authorizing the modification of an award for alimony at any time after the final decree is entered. If there is any doubt about this proposition it is clear that where it is necessary for the wife to maintain a proceeding against her husband in order to secure proper maintenance that the costs of such a proceeding may be necessary for her support and justify an allowance to her for her support in the amount of her expenses so necessarily incurred. Whether we regard the allowance to the wife as money necessary for her support, the allowance of which is authorized by section 139 of the Civil Code, or as money paid to her as counsel fees and costs during the pendency of the divorce action, it is clear that the court is authorized to make such an allowance to the former wife.

It is contended that this allowance should not have been made until after the appeal had actually been taken. We think it unnecessary to discuss this point inasmuch as the appeal was in fact taken and is now pending in this court for determination.

Judgment affirmed.

Myers, J., Waste, J., Lennon, J., Lawlor, J., Kerrigan, J., and Seawell, J., concurred.

INDEX.

(797)

INDEX.

ABANDONMENT. See Contracts, 8, 9.

ABATEMENT. See Appeal, 13, 14; Judgments, 1.

ACCEPTANCE. See Accord and Satisfaction, 1; Dedication, 2, 3;
Fraud, 1.

ACCIDENT INSURANCE.

1. PROVISO-CONSTRUCTION.-In a proviso of an accident insurance
policy providing that the policy is issued upon condition that the
company assumes no liability thereunder should the accident, in-
jury, disability, death, loss of limb or sight result wholly or in
part, directly or indirectly, from injury intentionally inflicted on
the insured by any person, the words "on the insured" cannot be
deemed to have been inserted for the purpose of qualifying the
verb "inflicted," but as qualifying the adverb "intentionally," and
as defining the intention of the person inflicting the injury.—
Mah See v. North American Acc. Ins. Co., 421.

2. WHEN PROVISO OPERATIVE.-The concurrence of three elements is
requisite to render such proviso operative: (1) An intention to in-
jure, (2) directed at the insured, and (3) the infliction of injury
upon him.-Id.

3. LIABILITY UNDER POLICY-INTENT TO INJURE ANOTHER.-The in-
surer is not exempt from liability under such a proviso if the
person who shot the insured intended thereby to shoot some other
person.-Id.

4. EXCEPTIONS-LIMIT TO LIABILITY-CONSTRUCTION.-A proviso in
an accident insurance policy which is uncertain or ambiguous,
rendering it capable of either of two constructions, one holding
the insurer liable and the other exempting it, must be construed
liberally in favor of the insured and strictly as against the in-
surer, (1) because it is found in a policy of insurance, and (2)
because it is found in an exception, attached to the policy, which
purports to limit the risk assumed by the insurer in the general
provisions thereof.-Id.

-

5. CAUSE OF DEATH- -EVIDENCE-BURDEN OF PROOF.-In an action
upon an accident insurance policy for death caused by shoot-
ing, the burden is upon the plaintiff to prove by a preponderance
of the evidence that the death resulted "through accidental means,"