Hartford Acc. & Indem. Co. v. Spain

• Citation: 520 S.W.2d 853
• Decision Date: 13 March 1975
• Docket Number: No. 804,804
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Parties: HARTFORD 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 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 January 8, 1972, Spain obtained a judgment against Julia Loggins, as community survivor, for the sum of $6,500.00. There is nothing in the record indicating that Hartford participated in that suit in any manner.

Spain instituted the instant suit against Hartford in the District Court of Houston County on December 22, 1972, seeking a recovery on the judgment. He alleged that the Loggins were covered by a policy of liability insurance issued by Hartford which was in force and effect at the time of the accident in 1963, and Hartford was therefore liable on the judgment.

Upon the trial of the instant case, counsel for Spain took the witness stand and testified that he entered the case in behalf of appellee in 1971, having taken the matter over from another attorney who had theretofore represented Spain. He testified that although he had made a diligent effort to find the policy or some evidence of its existence, his efforts were unsuccessful. He testified he attempted to obtain the policy from Mrs. Loggins but found that she had moved and her whereabouts were unknown; that he contacted the attorney who represented Mrs. Loggins in the Walker County damage suit in an effort to obtain proof of the existence of the policy, but was unsuccessful. During the trial counsel for appellee called Hartford's attorney as a witness. Hartford's attorney testified that after the present suit was filed a search for a copy of the policy was made in Hartford's regional office in Houston but nothing was found showing the company had issued a policy to the Loggins. He also testified he contacted Hartford's agents in Madisonville and Huntsville and other surrounding towns in an effort to find whether they could remember having served the Loggins as customers but found nothing. In response to appellee's written interrogatories inquiring as to whether the company issued a policy to the Loggins, counsel for Hartford answered as follows: 'Defendant cannot answer these two interrogatories because it has no record of the issuance of any policy to Kim B. Loggins and/or Kim B. Loggins and his wife, Julia Loggins. However, such policy may have been issued and Defendant have no record because inactive files are routinely destroyed after a period of time.'

The only indication that a policy might have been issued by Hartford is to be found in the testimony of appellee and the testimony of Raymond Cornelius, Hartford's local agent in Houston County. Spain testified that shortly after the accident in 1963 a man called on him twice and represented himself as an agent of Hartford. On the first occasion he testified he told him that he was too sick to talk and on the second occasion he refused to talk to him telling him to contact his attorney. Raymond Cornelius testified that shortly after the accident a man came by his office...