Hartford Acc. & Indem. Co. v. Spain, No. 804

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtMOORE
Citation520 S.W.2d 853
Docket NumberNo. 804
Decision Date13 March 1975
PartiesHARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Walter A. SPAIN, Appellee.

Page 853

520 S.W.2d 853
HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant,
v.
Walter A. SPAIN, Appellee.
No. 804.
Court of Civil Appeals of Texas,
Tyler.
March 13, 1975.
Rehearing Denied April 3, 1975.

William Drew Perkins, Lufkin, for appellant.

Granberry & Hines, F. P. Granberry, Crockett, for appellee.

MOORE, Justice.

This is a suit by an injured third party to collect from an insurance company a judgment recovered against a motorist allegedly insured by the company with a policy of public liability insurance. The instant

Page 855

suit was instituted by Walter A . Spain, appellee, against Hartford Accident and Indemnity Company, appellant, in the Third District Court of Houston County on December 22, 1972. Spain alleged that on January 8, 1972, he obtained judgment in the amount of $6,500.00 against Julia Loggins, the community survivor of Kim B. Loggins, deceased, in Cause No. 10,787 in the District Court of Walker County for damages as a result of an automobile accident occurring in Walker County on September 28, 1963 . Appellee, Spain, alleged that at the time of the accident in 1963 Kim B. Loggins was covered by a policy of liability insurance issued by Hartford. Appellant, Hartford, answered with a general denial denying it issued a policy to Kim B. Loggins and, among other things, defended on the ground that if such policy of insurance did exist, it had no notice of the Walker County suit. Trial was before a jury. In response to Special Issue No. 1 the jury found that 'Kim and Julia Loggins were insured with a Texas Standard Liability Policy on September 9, 1963, issued by Hartford Accident and Indemnity Company.' Appellant filed a motion to disregard the finding and also moved for judgment non obstante veredicto, alleging that there was no evidence to support the finding that Hartford issued a policy of insurance to the Loggins. After overruling the motions, as well as appellant's motion for new trial, the trial court entered judgment on the verdict in favor of appellee for the sum of $6,500.00. From this judgment Hartford perfected this appeal .

Hartford urges by its first point of error that the trial court erred in overruling its motion for judgment non obstante and in entering judgment on the verdict because there is no evidence of probative force that the company issued Kim and Julia Loggins a policy of liability insurance.

In determining whether the trial court erred in refusing to grant Hartford's motion for judgment notwithstanding the verdict, the inquiry is whether there is any evidence of probative force to support the verdict. Dallas County v. Miller, 166 S.W.2d 922 (Tex.Comm.App.1942, adopted); Douglass v. Panama, 504 S.W.2d 776 (Tex.Sup.1974). Upon appeal we are required to view the evidence in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in that party's favor. Douglass v. Panama,supra. Upon applying the foregoing rules to the record before us, we have concluded that there is no evidence of probative force to support the jury's verdict.

It is well established that a plaintiff seeking to rcover for a loss on an insurance contract must prove that the contract was in force at the time of the loss. Ranger County Mutual Insurance Company v. Chrysler Credit Corporation, 501 S.W.2d 295 (Tex.Sup.1973); United Founders Life Insurance Company v. Carey, 363 S.W.2d 236 (Tex.1963); American Casualty & Life Co. v. Combs, 228 S.W.2d 897 (Tex.Civ.App., Amarillo, 1950, writ ref'd., n.r.e.); Monarch Fire Ins. Co. v. Redmon, 109 S.W.2d 177 (Tex.Civ.App., Dallas, 1937, no writ).

Also, a party who claims under a policy is required to produce the insurance contract upon which he sues or to prove its terms. Wann v . Metropolitan Life Ins. Co., 41 S.W.2d 50 (Tex.Comm.App.1931, holding approved); Equitable Life Assurance Society of U.S. v. Nelson, 396 S.W.2d 517 (Tex.Civ.App., Fort Worth, 1965, no writ).

It is without dispute that appellee, Spain, was involved in a collision with an automobile driven by Kim B. Loggins on September 28, 1963, in Walker County. Shortly after the accident Kim B. Loggins and wife filed suit for damages against appellee, Spain. In early 1964, Spain answered and filed a cross action for damages against the Loggins. The suit remained in limbo for approximately eight years. In the meantime Kim B. Loggins died. On

Page 856

January 8, 1972, Spain obtained a judgment against Julia...

To continue reading

Request your trial
4 practice notes
  • Town of Peterborough v. Hartford Fire Ins. Co., Civ. No. 92-50-SD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • June 9, 1993
    ...validity of the policy or contract at issue. 46 C.J.S. Insurance § 1316 (1946 & Supp.1992) (citing Hartford Acc. & Indem. Co. v. Spain, 520 S.W.2d 853 (Tex. Civ.App.1975), writ ref'd n.r.e. (July 7, 1975) and reh'g of writ of error overruled (July 23, 1975); Saggau v. State Farm Mut. Ins. C......
  • New Hampshire Ball Bearings v. Aetna Cas., No. C-87-457-L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • April 1, 1994
    ...of the policy or contract at issue. See 46 C.J.S. Insurance § 1316 (1946 & Supp.1992) (citing Hartford Acc. & Indem. Co. v. Spain, 520 S.W.2d 853 (Tex.Civ.App. 1975), writ ref'd n.r.e. (July 7, 1975) and reh'g of writ of error overruled (July 23, 1975); Saggau v. State Farm Mut. Ins. Co., 1......
  • City of San Augustine v. Roy W. Green Co., No. 928
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 3, 1977
    ...Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); Hartford Accident & Indem. Co. v. Spain, 520 S.W.2d 853, 855 (Tex.Civ.App. Tyler 1975, writ ref'd n. r. e.). In determining whether there is any evidence of probative force to support the verdict,......
  • Rego Co. v. Brannon, No. 01-83-0864-CV
    • United States
    • Court of Appeals of Texas
    • December 6, 1984
    ...v. Roy W. Green Co., 548 S.W.2d 467, 472 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.); Hartford Accident & Indemnity Co. v. Spain, 520 S.W.2d 853, 855 (Tex.Civ.App.--Tyler 1975, no writ); cf. Tex.R.Civ.P. In reviewing a challenge that insufficient evidence supports the jury's finding, we m......
4 cases
  • Town of Peterborough v. Hartford Fire Ins. Co., Civ. No. 92-50-SD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • June 9, 1993
    ...validity of the policy or contract at issue. 46 C.J.S. Insurance § 1316 (1946 & Supp.1992) (citing Hartford Acc. & Indem. Co. v. Spain, 520 S.W.2d 853 (Tex. Civ.App.1975), writ ref'd n.r.e. (July 7, 1975) and reh'g of writ of error overruled (July 23, 1975); Saggau v. State Farm Mut. Ins. C......
  • New Hampshire Ball Bearings v. Aetna Cas., No. C-87-457-L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • April 1, 1994
    ...of the policy or contract at issue. See 46 C.J.S. Insurance § 1316 (1946 & Supp.1992) (citing Hartford Acc. & Indem. Co. v. Spain, 520 S.W.2d 853 (Tex.Civ.App. 1975), writ ref'd n.r.e. (July 7, 1975) and reh'g of writ of error overruled (July 23, 1975); Saggau v. State Farm Mut. Ins. Co., 1......
  • City of San Augustine v. Roy W. Green Co., No. 928
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 3, 1977
    ...Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); Hartford Accident & Indem. Co. v. Spain, 520 S.W.2d 853, 855 (Tex.Civ.App. Tyler 1975, writ ref'd n. r. e.). In determining whether there is any evidence of probative force to support the verdict,......
  • Rego Co. v. Brannon, No. 01-83-0864-CV
    • United States
    • Court of Appeals of Texas
    • December 6, 1984
    ...v. Roy W. Green Co., 548 S.W.2d 467, 472 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.); Hartford Accident & Indemnity Co. v. Spain, 520 S.W.2d 853, 855 (Tex.Civ.App.--Tyler 1975, no writ); cf. Tex.R.Civ.P. In reviewing a challenge that insufficient evidence supports the jury's finding, we m......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT