American Indemnity Co. v. First Nat. Bank, 8374.

• Decision Date: 27 May 1936
• Docket Number: No. 8374.,8374.
• Citation: 94 S.W.2d 1258
• Parties: AMERICAN INDEMNITY CO. v. FIRST NAT. BANK IN CAMERON.
• Court: Texas Court of Appeals

94 S.W.2d 1258

AMERICAN INDEMNITY CO. v. FIRST NAT. BANK IN CAMERON.

No. 8374.

Court of Civil Appeals of Texas. Austin.

May 27, 1936.

Appeal from District Court, Milam County; Graham Gillis, Judge.

Action by R. S. Wiley, guardian of the person and estate of Phillip Satterwhite, against L. Van Perkins and the American Indemnity Company, wherein the American Indemnity Company impleaded the First National Bank in Cameron, which impleaded Tilman J. Archer. From an adverse judgment, the American Indemnity Company appeals.

Affirmed.

Terry, Cavin & Mills, of Galveston, M. G. Cox, of Cameron, and Joyce Cox, of Galveston, for appellant.

Wallace & Wallace, of Cameron, for appellee First Nat. Bank in Cameron.

BAUGH, Justice.

R. S. Wiley, guardian of the person and estate of Phillip Satterwhite, a person of unsound mind, sued L. Van Perkins, former guardian, and the American Indemnity Company, surety on Perkins' guardianship bond, for failure of Perkins to deliver to plaintiff Wiley, his successor, the estate of said ward. The Indemnity impleaded appellee bank, hereinafter referred to as the bank; and the bank in turn impleaded Tilman J. Archer, whose name Perkins had forged to a check, in an attempt to restore to the estate of Satterwhite funds of such estate which Perkins had misappropriated. All parties to the suit filed pleadings setting up their respective claims or defenses. Trial was to the court without a jury, and judgment rendered in favor of Wiley, as guardian, against Perkins and appellant surety company, jointly and severally, on said bond, for $699.17; against the bank for $86.96; in favor of Archer against the bank for $699.19; in favor of the surety company against Perkins for the amount adjudged against it; and awarding to the bank title to certain moneys and a $500 Milam county road bond listed as property of the estate of Satterwhite, but held by the bank pending the outcome of the controversy which resulted in the instant suit. The Indemnity Company alone has appealed.

The trial court filed extensive findings of fact, some of which are attacked; and refused to find others requested by appellant, of which complaint is made. A résumé of the transactions involved is necessary to a proper understanding of the issues presented.

Perkins, first as local post commander, and later as state commander, of the American Legion, had been handling accounts of veterans of the World War. He was, on January 13, 1933, appointed guardian of the person and estate of Satterwhite, and executed the bond required by law, with appellant as surety, on January 21, 1933. Early in March, 1933, there came into his possession a United States Treasury check for $797.93, payable to him as guardian of the estate of Satterwhite. At that time the banks were all closed under presidential proclamation. Perkins cashed this check at the post office in Cameron, and misappropriated the money. In December, 1932, there had come into Perkins' possession a United States Treasury check for $699.17, payable to Archer. Perkins, without the knowledge or consent of Archer, indorsed and deposited same to the credit of Archer in said bank. The bank did not know Archer nor his signature, but trusted Perkins entirely in the premises. On March 20, 1933, Perkins forged Archer's name to a check for $699.17, made payable to him as guardian of Satterwhite's estate, and deposited same, together with $98.76 in cash, in said bank to the credit of Satterwhite's estate, for the purpose of replacing the funds theretofore misappropriated by him. On April 16, 1934, Perkins filed in the probate court his first annual account as such guardian, showing receipts aggregating $1,071.68, which included additional Treasury checks received monthly, disbursements aggregating $758.38, and a cash balance in said bank of $313.30. Of the disbursements shown in said account, $485.65 had been paid out by him on April 3, 1933, in purchasing for the estate, under order of the probate court, a Milam county road bond. This account was approved by the county judge. Perkins tendered his resignation as guardian on June 4, 1934, which was by the court accepted; on September 29, 1934, Wiley was appointed to succeed him; and on November 6, 1934, qualified as such guardian. Wiley thereupon demanded of Perkins and the bank possession of the moneys and property of his ward; failure to deliver which resulted in this suit.

Meantime, on or about May 17, 1934, the bank was advised by federal investigators that the indorsement on the Treasury check, payable to Archer, whereby the Archer account...