Woodmen of the World v. Hipp

• Citation: 147 S.W. 316
• Parties: WOODMEN OF THE WORLD v. HIPP.
• Decision Date: 03 April 1912
• Court: Court of Appeals of Texas

147 S.W. 316

WOODMEN OF THE WORLD v. HIPP.

Court of Civil Appeals of Texas. Austin.

April 3, 1912.

Rehearing Denied May 8, 1912.

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Action by Mrs. Jennie Hipp against the Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial, with directions to instruct a verdict for defendant on testimony the same as that upon the former trial.

This is a suit upon a policy of insurance. Appellant defended upon the ground of a breach of a stipulation in the contract of insurance, which prescribed that, "if the member holding this certificate * * * should die in consequence of the violation or attempted violation of the laws of the state or of the United States, or any other province or nation, this certificate shall be null and void and of no effect, and all moneys which shall have been paid, and all rights and benefits which have accrued on account of this certificate, shall be absolutely forfeited, without notice or service." There was a jury trial, which resulted in a verdict and judgment for plaintiff, and the defendant has appealed, and vigorously assails the verdict and complains of the action of the trial court in not giving a peremptory instruction, directing the jury to return a verdict for the defendant. The certificate of insurance contains the stipulation set out above. The testimony, showing how the assured came to his death, was as follows:

"J. A. Staley, a witness for the defendant, testified as follows: `My name is J. A. Staley. I live on the Concho river, in Tom Green county, about five or six miles from the town of Miles. My family consists of myself, one little boy, and two little girls. My boy, Charles Adrian, is 12 years old. One of my girls is 8 and the other 6. I knew Hue Hipp, and he came to my house about the 3d of September, 1910. He was at my house when he died. At the time he came to my house, I was there with Charles and the two little girls. He and Mr. Duncan came between 8 and 9 o'clock at night. About 8 or 9 o'clock, Mr. Hipp and Mr. Duncan knocked on my door, and above said he wanted about 30 matches. I asked who it was, and he said Hue Hipp. I opened the door and got him the matches. He asked me to take a drink, and I told him that I had quit drinking, and they persuaded me to take one drink with them. They then started home, and Mr. Hipp lost his hat. Mr. Duncan offered me the drink of whisky. I loaned Hipp a hat. They started home again, and it commenced raining. They then turned back, and asked me if they could stay until the rain was over, and I said, "Yes," and also asked them to stay all night. They came back in the house, and after a while Mr. Hipp wanted to go home, but Mr. Duncan objected; so Hipp and I went outdoors and took out the mules. After we came back into the house, Hipp commenced to talk, and used very bad language. Talked about my wife. He said that if he had been with her he could have satisfied her, and she wouldn't have to run off. My wife had run off and left me. My little boy was present at the time, and the two little girls were in bed. He was talking about my wife's cousin, and said she had offered things to him when she was running the restaurant. I told him that he must not talk that way; that he was in the presence of my children. We then went in the kitchen, and I don't remember anything more that occurred. I don't remember when he struck me. I did not come to after being struck until next morning about 5 or 6 o'clock. When I came to, I found a wound upon my head. Had a doctor to come and see me at once. The skin was cut, and it took five or six stitches to close the wound. I was cut to the skull. I didn't know anything about being hurt until next morning.' "Cross-examination: `I do not know what hurt me, except from hearsay. I don't remember taking any whisky, except the drink at the buggy and the toddy in the house. I don't remember anything after we went in the kitchen and dining room. I don't remember jumping on Mr. Hipp or getting mad at him, and didn't know who hit me. I do remember the conversation about my wife having run off and left me; and that took place before we went into the kitchen. I don't know whether it was brought up in the kitchen or not. Such talk hurt my feelings, because it was in the presence of my little girls. I don't know how long prior to the time I was struck before I lost my memory. I don't remember getting up from the table in the kitchen, or do not remember walking into the other room, with Mr. Duncan following and holding me.'

"Adrian Staley testified for the defendant as follows: `My name is Adrian Staley. I am 12 years old. My father is J. A. Staley. I have two sisters. We lived last year on Mr. Hick's place, south of Miles. I was at home when Mr. Hipp and Mr. Duncan came to our house one night. My sisters were there too. No one else was there, except my father. We had all gone to bed when they came. I saw Mr. Hipp in our bedroom. I got up when they came in the room and put on my clothes. I heard Mr. Hipp say to my father that he would love to be with Mamma; that she wouldn't have left him. I heard him say something about Mamma's cousin. After such talk, my father, Mr. Hipp, and Mr. Duncan went into the kitchen, where they took a toddy, and Papa told Hipp not to come into the bedroom; and after a while Papa and Mr. Duncan came into the bedroom and stopped at the door. Mr. Duncan put his arms around Papa, and then turned him loose, and Papa went in there, and Mr. Hipp struck Papa, and I got my gun and shot him. Papa had nothing in his hand at the time. He had on overalls—bibb overalls, fastened around his waist. Mr. Duncan came with Father into the bedroom. Mr. Hipp said he had been wanting to get on Papa. Papa went in the kitchen, and Mr. Hipp struck him. I saw Mr. Hipp strike Papa with a square chair, which had rounds going down from the top with the side posts coming up above the top of the...