404 S.W.2d 347 (Tex.Civ.App. Waco 1966) J. P. LITTLE, Appellant, v. CRUMs&sFORSTER GROUP OF INSURANCE COMPANIES, Appellee. No. 4488. Court of Civil Appeals of Texas, Waco May 19, 1966
Harrison, Curtiss&sCooper, Dallas, for appellant.
Johnson, Guthrie, Whites&sStanfield, Robert Lee Guthrie, Dallas, for appellee.
McDONALD, Chief Justice.
This is an appeal by plaintiff Little from a take-nothing judgment non obstante veredicto. Plaintiff sued defendant 'Crums&sForster Group of Insurance Companies,' alleging it issued 'its policy numbered IF 453589,' insuring plaintiff's horse against theft; and that such horse was stolen. Defendant answered by general denial, and specially denied under oath that the policy sued on was executed by its authority.
The policy sued on is in evidence. The back of such policy recites:
'CRUMs&sFORSTER GROUP of Insurance Companies Sound, Dependable Insurance
United States Fire Insurance Company
The North River Insurance Company
Westchester Fire Insurance Company
International Insurance Company 110 William Street, New York 38, N .Y.'
Page 1 of the policy provides: 'The Company named on the Declaration Page * * * agrees with the insured as provided in the declarations made a part hereof * * *.' The declaration page (and the Amendatory Endorsement) provides: 'The North River Insurance Company, New York, N.Y. * * * Does insure the above named Insured * * *.'
There is no evidence that Crums&sForster Group of Insurance Companies ever executed a policy of insurance.
When the variance between pleading and proof became apparent, the trial judge suggested to plaintiff's counsel that he withdraw his announcement of ready and file a trial amendment. Plaintiff's counsel declined to do so.
Trial was to a jury which found that plaintiff's horse was taken from him by theft; and that it had a value of $1750.
Defendant moved for judgment notwithstanding the verdict, asserting the undisputed evidence shows it did not execute the policy of insurance sued on; and that there is a fatal variance between plaintiff's pleadings and proof.
The trial court sustained such motion and rendered judgment that plaintiff take nothing from defendant.
Plaintiff appeals, contending: 'The trial court erred in granting defendant judgment notwithstanding verdict, in that defendant Crums&s Forster Group of Insurance Companies comprised of U.S. Fire Insurance Company, The North River Insurance Company, Westchester Insurance Company and the International Insurance Company, was properly served and before the Court.'
It is true that plaintiff sued Crums&sForster Group of Insurance Companies, alleging it to be an association of 4 insurance companies, including The North River Insurance Company. But 'Crums&s Forster Group of Insurance Companies' did not issue any policy of insurance. The proof and the policy show that The North River Insurance Company executed and issued the policy. The North Insurance Company is not a party to this suit.
Plaintiff's points and contentions are overruled.