New York Casualty Co. v. State
| Decision Date | 08 April 1942 |
| Docket Number | No. 5891.,5891. |
| Citation | 161 S.W.2d 150 |
| Parties | NEW YORK CASUALTY CO. v. STATE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.
Action by the State of Texas against New York Casualty Company as surety on official bond of Claude C. Hodge, Tax Collector of Fannin County from 1937 until his death on July 6, 1939, wherein the defendant filed a cross-action against the First National Bank of Bonham, Texas, the county depository of Fannin County. From an adverse judgment, the original defendant appeals.
Affirmed.
Lloyd E. Price and Hamilton Rogers, both of Ft. Worth, for appellant.
Cunningham, Lipscomb & Cole, of Bonham, Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Wm. J. Fanning, and Ardell Williams, Asst. Attys. Gen., for appellee.
Claude C. Hodge was elected tax collector of Fannin County for the years 1937-38 and 1939-40. He died July 6, 1939, during his tenure of office. At the time of his death Hodge was due the State of Texas $1,475.28, and the State Highway Department $415.45, a total of $1,890.73, none of which has been paid to the State of Texas or the State Highway Department. The suit was filed May 24, 1940, by the State of Texas against New York Casualty Company, the surety on Hodge's official bond to recover the amount due the State and the State Highway Department.
The defendant answered and alleged as a defense to its liability on the bond that the funds sued for were, at the time of their collection (during June and the first six days of July, 1939), deposited in the First National Bank of Bonham, Texas, the county depository of Fannin County, and that such funds still remain on deposit in said bank. Defendant made the bank a party to the suit, asking that in the event judgment be rendered against defendant as surety on Hodge's official bond, judgment for a like amount be rendered in favor of defendant over against said depository bank, under the doctrine of subrogation.
The bank, by way of special exception and as a defense, asserted that the defendant, not having paid the State, has no cause of action against the bank on the ground of subrogation.
Trial to the court without a jury resulted in a judgment for the amount sued for in favor of the State of Texas against New York Casualty Company; and that New York Casualty Company take nothing by reason of its cross action against the cross defendant bank, but that judgment was without prejudice against the New York Casualty Company to subsequently assert any rights of subrogation that may arise upon payment of this judgment to the State. The New York Casualty Company has appealed.
Two issues of law, which control disposition of the appeal, are presented upon the undisputed facts stated below.
The First National Bank of Bonham, Texas, was the official depository for Fannin County during all the times involved in this suit. The bank is solvent. From October 7, 1935, to January 1, 1937, Wilber Faxon was tax collector of Fannin County. During his tenure of office, Faxon's official account in the depository was designated on the books of the bank: "Wilber Faxon, Tax Assessor and Collector." The official account of Claude Hodge in said depository during his tenure of office was designated on the books of the bank as "C. C. Hodge, Tax Assessor and Collector."
When Hodge became tax assessor and collector on January 1, 1937, he employed Faxon as his deputy. On January 20, 1937, Faxon drew an unauthorized check for $1,500 on the depository bank, payable to "Wilber Faxon" and signed by Wilber Faxon as follows: "Claude C. Hodge, Assessor and Collector of Taxes" (in print) "by Wilber Faxon" (in script). Faxon endorsed the check as follows: The depository bank cashed the check for Faxon on January 22, 1937, and charged the amount to the official account of "C. C. Hodge, Tax Assessor and Collector." It appears in the testimony that the check was drawn and cashed by Faxon to...
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