Woodmen of the World v. Hipp

147 S.W. 316, 1912 Tex. App. LEXIS 432

• Court: Court of Appeals of Texas
• Decided: April 3, 1912
• Status: Published

Opinion

■KEY, C. J.

[1,2] (after stating the facts as above).

We sustain appellant’s contention, and hold that the evidence clearly shows that the assured died in consequence of a violation on his part of a penal statute of this state. The testimony above set out is all that was placed before the jury concerning the manner of Hipp’s death; and we think it shows, beyond a reasonable doubt, that he was killed by young Staley, because of the fact that Hipp had, immediately before the killing, made an unlawful and inexcusable assault upon his father. It is not necessary to consider in this case whether or not the stipulation in the policy, providing for a forfeiture for a violation of the laws of this state, would apply to a breach of the civil statute, because in this case it is clear that the law which the deceased violated was a criminal law written in the Penal Code of this state. Nor is it necessary to consider whether the offense committed by the deceased was an assault with intent to murder, an aggravated assault, or a simple assault. It seems clear that it was at least an aggravated assault; but, if not, then it is certain that it was a simple assault, and a violation of the Penal Code. Furthermore, it is immaterial in this case whether or not the lad who killed Hipp committed an offense, or was excusable in so doing.

[3] From the testimony that was submitted, we fail to find anything that presented the question of self-defense on the part of the deceased. It is true the boy testified that when his father and Mr. Duncan came out of the kitchen into the bedroom Mr. Duncan had his arms around Mr. Staley, as if attempting to hold him; it is also true, after Mr. Duncan turned Mr. Staley loose, the boy says his father went back towards Mr. Hipp, and looked like he was mad at that time. But he says that his father had nothing in his hands at that time. He does not state that anything was said or done by his father indicating an intention to assault or otherwise injure Mr. Hipp; yet as soon as his father approached near enough the latter struck him a violent blow upon the head with a chair. Mr. Hipp had so demeaned himself as to justify Mr. Staley in being angry; and the mere fact that while in that condition he approached Mr. 1-Iipp, without doing or saying anything indicating an intention to injure him, did not justify Mr. Hipp in striking him as he did. Mr. Staley was in his own house, and he had the right to go wherever he pleased; and he did not forfeit any right by the mere fact that while in an angry mood he approached the deceased; and that fact and those circumstances afforded no reasonable ground for Mr. Hipp to suppose that Mr. Staley was about to make an attack upon him. While we regard this as a stronger case in favor of appellant, we think the following aúth&rities support the ruling here made: Bloom v. Franklin Life Ins. Co., 97 Ind. 478, 49 Am. Rep. 469; Terre Haute R. R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Cincinnati, etc., E. Co. v. Faton, 94 Ind. 474, 48 Am. Rep. 179; Dunlap v. Wagner, 85 Ind. 529, 44 Am. Rep. 42; Gresham v. Equitable L. & A. Ins. Co., 87 Ga. 497, 13 S. E. 752, 13 L. R. A. 839, 27 Am. St. Rep. 263; Wolf v. Connecticut Mut. L. Ins. Co., 5 Mo. App. 236.

[4] Appellant asks that the case be reversed and rendered; but, as one person was present at the time the deceased lost his life who did not testify at the trial, we are unable to say that the record indicates that the ease cannot be made any stronger for the plaintiff. Unless Mr. Duncan was as drunk as the record indicates that Mr. Staley was, it may be that he can give testimony tending to show that the deceased was acting in self-defense when he struck Mr. Staley, and therefore was not violating the law; and, if such was the fact, then there was no breach of the contract of insurance, and the defense relied on would not avail.

So we have reached the conclusion that the judgment of the trial court should be reversed, and the case remanded for another trial, with directions to instruct a verdict for the defendant, if the testimony should be the same as it was upon the former trial.

Reversed and remanded.

JENKINS, J., did not sit in this case.