17 S.W.2d 777 | Tex. Comm'n App. | 1929
This case was submitted as a companion case to that of Southern Surety Company v. Chas. O. Austin, Commissioner, appealed from Travis county, since one of the questions involved in the trial of the two cases is the same. Judge Leddy has written an opinion in the Southern Surety Company Case disposing of this question, and we refer to that opinion as expressing our views on the question involved. 17 S.W.(2d) 774.
• The plaintiff in error, as surety, and Walter H. Harris, as principal (in form), executed a fidelity insurance bond in the sum of $2,000, payable to the People’s State Bank of Pear-sall, Tex., the bond being conditioned as follows: “That whereas, the said officer is in' the service of the bank in the city of Pearsall, County of Frio County, Texas, holding the position of bookkeeper, now if the above bounden officer and surety shall hold the bank harmless against and pay to it such pecuniary loss as it may sustain of money or other valuable securities embezzled, wrongfully abstracted, or wilfully misapplied by said officer in the course of his employment, as such officer, and in the course of his employment in any other position in the said bank to which he may be appointed, reappointed, elected, reelected, or temporarily assigned, -then this obligation is -void, otherwise to be and remain in full force and effect.”
Harris was not made a party, and an abatement of the suit was sought on that ground by the plaintiff in error. This plea was overruled. A trial was had to a jury, upon special issues.
It appears from the testimoriy thaij Harris,
‘ Tbe court construed tbe bond sued on as a contract of insurance, and, upon tbe basis of tbe answers of tbe jury to tbe questions submitted, entered judgment in favor of tbe defendant'in error for tbe sum of $2,000, with interest, from which action of tbe court tbe Southern Surety Company appealed to tbe Court of Civil Appeals at El Baso where tbe judgment of tbe trial court was affirmed. 5 S.W.(2d) 626.
In granting tbe application for tbe writ of error in this case, tbe Supreme Court expressed tbe opinion that it was inclined ‡0 tbe view that the opinion of tbe Court of Civil Appeals is correct, but granted tbe writ on account of tbe confused state of tbe authorities on tbe subject involved.
Judge Leddy, in tbe opinion of tbe Southern Surety Company Case, supra, has discussed tbe question whether bonds of tbe kind here sued upon are construed as contracts of insurance and subject to tbe rules applicable to such contracts, or whether sucb bonds come under tbe rules applicable to ordinary accommodation surety contracts, and reaches tbe conclusion that bonds of this kind are construed as contracts of insurance, and not contracts of surety, bolding that tbe statutory provisions, articles 6244, 6245, 6251, R. S. 1925, wbicb relate to the rights of sureties, have no application to suits against sureties upon bonds of tbe nature here sued on, and cites tbe authorities in support of tbe conclusion reached. We adopt tbe opinion of Judge Leddy in tbe Southern Surety Company Case on this point; tbe conditions of tbe bonds being substantially tbe same.
Tbe remaining assignments of error, with the possible exception of one, challenge tbe sufficiency of tbe testimony to raise issues of fact, such as were submitted to tbe jury. To require tbe Supreme Court to sustain these assignments, or any of them, it is necessary that tbe conclusion be reached by tbe Supreme Court, from consideration of all tbe testimony, that no evidence of a substantial nature was presented by tbe defendant in error to sustain tbe various answers to tbe questions propounded to tbe jury. To determine this matter, it has become necessary for us to read the statement of facts, wbicb is voluminous. This we have done, and have reached the con-cldsion that the Court of Civil Appeals was correct in its bolding that there was substantial evidence introduced by the defendant in error in support of each one of tbe facts found by tbe jury. We think tbe facts in this case are of tbe same general nature as those in tbe ease of Austin, Commissioner, v. Neiman (Tex. Com. App.) 14 S.W.(2d) 794, in wbicb it was held that, in determining whether there is any evidence to sustain a finding, tbe reviewing court must confine itself “witbin tbe field of evidence to tbe utmost bounds of reason wbicb rational men of common sense might know, without passing beyond tbe line between tbe field of probability and tbe field of conjecture.” 23 C. J. p. 52, par. 1795. It was held by this section of tbe Commission in that case that the character of testimony upon wbicb tbe defendant in error relied in support of its allegations, charging liability upon tbe plaintiff in error, was pertinent to tbe issues presented by tbe pleadings, and was sufficient to sustain a judgment against tbe company, upon its bond. Tbe testimony in
We recommend that the judgment of the Court of Civil Appeals affirming that of the district court he affirmed.