
    SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. JACKSON.
    (Court of Civil Appeals of Texas. Galveston.
    May 20, 1911.
    Rehearing Denied June 7, 1911.)
    1. Insurance (§ 817) — Life Insurance — Death from Violation of Law — Burden of Proof.
    On the question whether insured Was the aggressor in the difficulty in which he lost his life, and so was within the condition of the certificate on his life that it should be void, should he die in consequence of the violation or attempted violation of the laws, insurer has the burden of proof.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 817.]
    2. Trial (§ 139) — Taking Case from Jury —Weight and Sufficiency of Evidence.
    A case cannot be taken from the jury, unless the facts are so clear and convincing that there is no room for fair and reasonable minds to reach different conclusions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. § 139.]
    3. Insurance (§ 825) — Life Insurance — Death from Violation of Law — Evidence.
    Evidence, in an action on a life certificate, held to make a question for the jury whether insured was the aggressor in the difficulty in which he lost his life, as regards the condition that, should he die in consequence of the violation or attempted violation of the laws, the certificate should be void.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § S25.]
    4. Evidence (§ 588) — Credibility of Witnesses.
    Though testimony of witnesses is uncontra--dicted, it may be disbelieved by the jury; the concern of one of them not to make any damaging statements that might be available against him in a criminal prosecution being apparent, and the other refusing to testify as to certain material facts, and his testimony given being of doubtful meaning.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Mrs. Lola M. Jackson against the Sovereign Camp of Woodmen of the World. Judgment for plaintiff. Defendant appeals.
    Affirmed.
    Arthur H. Burnett and E. P. & Otis K; Hamblen, for appellant.
    Hogg, Gill & Jones and J. C. Townes, Jr., for appellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   STONE, Special Associate Justice.

Mrs. Lola M. Jackson, appellee, filed suit in the •district court of 'Harris county, on February 1, 1909, alleging that appellant issued a •certificate to her deceased husband, George W. Jackson, on the 6th day of July, 1904, in the sum of $2,000; that she (appellee) was named as beneficiary in said certificate; that George W. Jackson was killed on the 28th •day of July, 1908, at which time all dues, assessments, etc., were paid on said certificate, .and that same was in full force and effect.

On January 10, 1910, appellant (defendant below) filed it's first amended original answer, admitting ‘the issuance of said certificate as alleged by plaintiff below, setting out the conditions of the said certificate, and charging that the insured had met his death as a result of violating one of the conditions of the certificate, namely, section 66,' which provides that, “If any member of this order should die * * * in consequence of the violation or attempted violation of the laws of any state or nation,” the certificate shall be null and void.

The case was tried before a jury on the 11th, 12th, and 13th of January, 1910, and a verdict and judgment was rendered in favor of appellee for $2,000, with.interest at 6 per cent, from July 28, 1908; total judgment, $2,175.

On the trial below it was agreed by counsel for both plaintiff and defendant that George W. Jackson, the deceased husband of plaintiff, was at the date of his death a member of the local camp of defendant at Pierce, Tex., holding the beneficiary certificate sued upon, with all dues and charges paid; that George W. Jackson was dead; that payment of said certificate by defendant had been refused, and that it waived proof of the sufficiency of one assessment on its membership to cover payment of claim sued on. It was further agreed that defendant is a fraternal beneficiary association, with permit to do business in Texas, and was such during all of the time George W. Jackson was a member of the association; that certain attached copies were true copies of constitution and by-laws of defendant, and in force when Jackson was insured or became a member, and until and when he was killed; that in due time defendant tendered t'o plaintiff all dues and assessments paid it by Jackson and further tender was waived.

The certificate issued to Jackson provided that: “If the member holding this certificate * * * should die in consequence of the violation or attempted violation of the laws of the state or United States * * * this certificate shall be null and void and of no effect.” The defendant contended below, and contends here, that' George W. Jackson came to his death as a result of an unlawful assault upon one R. B. Pointer, thereby voiding the certificate by virtue of the condition thereof last above set out.

The death of George W. Jackson was caused by a pistol shot fired by R. B. Pointer. On the afternoon of the 28th of July, 1908, Jackson went from his residence to the store ‘of A. P. Borden •& Go., at Pierce, Tex., where a difficulty ensued between him and Pointer. The evidence of many witnesses was given by deposition upon the trial of the ease, but evidence upon material facts is both meager and conflicting. The substance of the testimony of the various witnesses is that the first encounter, or at least the first difficulty between Pointer and Jackson, occurred some distance witliin the store, and, with the exception of the testimony of Pointer, who killed Jackson, and of the witness Ustynik, no other witness testified to seeing the beginning of the difficulty. The evidence does not disclose how Jackson proceeded from the point where the difficulty began to the place on the porch outside of the storeroom, where the evidence shows he procured the iron bar, or how he returned to the inside of the store. Evidence was conflicting as to h'ow far' inside of the door opening on the porch of the store Jackson was when he was killed, and as to how far within the store from the door Pointer was when he shot Jackson, but the evidence is uniform that they were not more than five or six feet apart. The evidence is uncertain as to whether there was a second encounter, but, giving to the testimony the reasonable interpretation, it appears that there was but one encounter, which was shifted from a point well within the store to a point near the door, at which place Jackson was killed.

The appellant' introduced the testimony of the witness Pointer, who killed Jackson, and of the witness Ustynik, for the purpose, evidently, of showing that Jackson was the aggressor in the difficulty. The evidence failed to show who was the aggressor, unless that fact be established by the testimony of the witnesses, Pointer and Usynik. Pointer testified that Jackson came into the store at about 5:30 o’clock in the afternoon, where he was waiting upon some customers, and, meeting him (Pointer) in the store, caught him by the arm and asked him, “What about stamps?” to which Pointer replied, “Wait and I will explain.” Whereupon Jackson said, “I will fix you,” struck him, and knocked him unconscious; that when he came to Jackson was on top of him, and had his hands around his neck; that he (Pointer) ran behind the counter into the post office, got his revolver, came from behind the counter, and shot Jackson, who was advancing upon him from the front of the store with an iron bar raised over his shoulder, as if to strike.

No other witness saw the beginning of the difficulty, or heard what was said by either party, unless the testimony of the witness Ustynik can be so construed. Ustynik testified:' “I was present when Mr. Geo. W. Jackson met his death in the store of A. P. Borden & Co. I was on the porch as he came by, going in. I saw him when he struck Mr. Pointer. Mr. Pointer was waiting on some ladies. I could not hear what Mr. Jackson said to Mr. Pointer, as I was on the porch. He hit Mr. Pointer, and Mr. Pointer was bloody and had a black eye. I do not know what was said by either one. They were scuffling when I first saw them and went to them.” This witness declined to answer certain questions propounded by plaintiff’s attorneys, but his evidence was taken by plaintiff.

The testimony of the witnesses was conflicting as to whether Jackson was advancing on Pointer or Pointer on Jackson, when Jackson was killed, and no witness testified as to how or under what conditions Jackson came from the inside of the store more than 20 feet from the front door to the porch where, presumably, he got the iron bar which he had when killed. There is no evidence to show the movements of the parties after their first encounter until Jackson was killed, except that Pointer went behind the counter into the post office, got his pistol, and came back from behind the counter nearer the door, where he shot Jackson.

On cross-examination Pointer was asked, “Is it not a fact that just prior to your shooting and murdering Mr. G. W. Jackson that he came into the store of A. P. Borden & Co., where you worked, at Pierce, Tex., and that the said G. W. Jacks on came unarmed t'o discuss with you the insult and humiliation that you heaped upon his daughter?” He replied, “I answer, ‘No.’ ” in reply to the question, “Is it not a further fact that you grabbed a heavy tobacco knife from the counter and attempted to kill G. W. Jackson with same?” “I answer, T do not know.’ ” In reply to the question, “Is it not a fact that said G. W. Jackson took said tobacco knife away from- you, and could easily have killed you with it, but, instead of doing so, he quietly put it down on your counter, took his hat, and left your store?” “I answer, T do not know.’ ”

The evidence shows that Pointer came from behind the counter with pistol in his hand, but it was conflicting as to whether he was then in the act of shooting Jackson. Mr. Collins, a clerk in the store of Borden & Co. with Pointer, refused to answer any questions propounded to him by plaintiff as to what occurred between Jackson and Pointer, or to make any statement as to the position the parties occupied at time of and before shooting, or as to whether Jackson was advancing on Pointer, or where Pointer got his pistol. At the time of taking depositions of both Pointer and Collins, Pointer was then under indictment for the killing of Jackson, and his case was pending. Pointer admitted that he consulted his lawyers as to his answers in this case before giving them.

The principal question in this case is, Was Jackson the aggressor in the difficulty in which he lost his life? The burden of establishing this was upon the defendant below, in- order to bring the case within the conditions of the certificate.

The appellee contends that the trial court should have peremptorily instructed the jury to return a verdict for it. It is well settled in this state that the trial court cannot properly take from the jury the consideration of the case, unless the facts are so clear and convincing as that there is no room for fair and reasonable minds to reach different conclusions. Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 789; Mitchell v. McLaren (Civ. App.) 51 S. W. 270.

Viewing the record in this case, we are of the opinion that the trial court properly refused the request of appellee for peremptory instruction in its favor.

The principal remaining assignment of the appellee is that the verdict of the jury was against the great weight and preponderance of the evidence. The vital fact under this assignment is, Who was the aggressor and who provoked the difficulty? The appellant assumed the burden of showing that Jackson was, and in support of that contention introduced the evidence of Pointer, taken at a time when he was under indictment for the killing of Jackson. It also introduced the deposition of Collins, who was an associate employs with Pointer in the store of Borden & Co. The answers of Pointer to some of plaintiff’s interrogatories, given at a time when his own personal protection and safety must naturally have been the uppermost consideration with him, his failure to know whether he drew a tobacco knife and attempted to injure Jackson with it, and refusal of Collins to testify to material matters affecting his associate, may have caused (and properly so) the jury to look with suspicion and distrust upon the remainder of Pointer’s evidence, especially upon that part wherein he makes Jackson the aggressor. So, also, the jury must have disbelieved the testimony of Ustynik that Jackson struck the first blow. His testimony as given is of doubtful construction and it was within the province of the jury to disbelieve the same, if it did not appear to be free from suspicion and clear in meaning.

The testimony of Pointer and of Ustynik is uneontradicted, it is true; but, if Pointer does not come within the class of interested witnesses, his concern in not making any damaging statements was so evidently apparent to the jury that they refused to accept it as true. And Ustynik’s refusal to testify for plaintiff as to material facts, and his statement of that which exonerated Pointer as not being the aggressor, likewise found disfavor with the jury. It -is not sufficient that this testimony was un-contradicted. Coats v. Elliott, 23 Tex. 613; Railway Co. v. Runnels, 92 Tex. 305, 47 S. W. 972; Heierman v. Robinson, 26 Tex. Civ. App. 491, 63 S. W. 658; Insurance Co. v. Villeneure, 29 Tex. Civ. App. 128, 68 S. W. 206.

The statement of counsel for plaintiff in objecting to the testimony of Collins, to whom he referred as the notary who took the deposition of Pointer, “the man who murdered Jackson,” was improper, and if the case were such that it appeared that injury had resulted to appellee we would reverse and remand the case. However, tne court at once reprimanded counsel, and instructed the jury not to consider the improper remarks of counsel. We are aware that admonition of the court to the jury is frequently ineffective, but in the instant case we think no injury resulted to appellee.

There are various other assignments of error by appellant, addressed chiefly to the admission of evidence, all of which we consider were harmless, if error.

Appellee insists that, if the evidence did establish the fact that Jackson was the aggressor in the first instance, the plaintiff would still be entitled to recover, because Jackson had abandoned the first difficulty and left Pointer in the store, when Pointer seized his pistol and shot him. This insistence of appellee raises the question of a second difficulty, which, in our opinion, is not supported by the evidence. The testimony only shows that the scene was shifted from a point well within the store to a point nearer the door, with no evidence showing any cessation of the first difficulty, and therefore by the record there was but one difficulty.

Appellee also raises the question of the extent to which Pointer was legally justified in going, in order to repel the assault of Jackson, if it should be established that Jackson was the aggressor in the first instance, and thereby the further question of whether Jahkson should or should not be held to have reasonably contemplated the disastrous consequences to himself. In the view which we take of the case, the question . of whether Jackson precipitated the difficulty, without lawful right to do so, in such a way as to bring him within the clause of the certificate voiding the policy, if he met death as a “consequence of a violation or attempted violation of the laws of the state of Texas,” as specifically alleged by defendant below, was fairly and clearly raised by the pleadings of the parties, and by the testimony given on trial. Appellant does not complain of any error of the court in submitting the issues to the jury, and, in view of our declination to disturb the finding and verdict of the jury, we do not deem it necessary to consider the incidental question of comparative acts of assault and defense of the principal actors in the difficulty.

We find no error, and affirm the judgment of the trial court.

Justices REESE and McMEANS, being disqualified, the Governor appointed O. T. HOLT and THOS. H. STONE Special As-' sociate Justices. They sat with Chief Justice PLEASANTS in this case.  