At the outset we start with the Texas rule that doubts in construction of the bond must be resolved against the surety. Fidelity and Deposit Co. of Maryland v. Central State Bank, Tex. Civ.App. 1928, 12 S.W.2d 611, 613; Massachusetts Bonding Ins. Co. v. Texas Finance Corp., Tex.Civ.App. 1924, 258 S.W. 250, error dismissed; First State Bank v. Metropolitan Casualty Ins. Co., 1935, 125 Tex. 113, 79 S.W.2d 835, 98 A.L.R. 1256. But we see no doubt and no reason to import doubt.
We pause to note the Texas rule that all doubts in the construction of the bond must be resolved against the surety. National Surety Corporation v. Rauscher, Pierce Co., 369 F.2d 572 (C.C.A.5th Cir. 1967); Fidelity Deposit Co. of Maryland v. Central State Bank of Dallas, 12 S.W.2d 611 (Tex.Civ.App. — Waco 1928, no writ); First State Bank of Temple v. Metropolitan Casualty Ins. Co. of New York, 125 Tex. 113, 79 S.W.2d 835 (1935). In connection with the surety's intent in executing the bond, the construction contract between Cox and Dickson should be considered.
In International Union Bank v. National Surety Co., 245 N.Y. 368, 157 N.E. 269, 271, 52 A.L.R. 1375, the court, while not deciding the relationship of the term to the state penal statutes, applied the common law definition and general test, 'whether a person has falsely and with purpose to defraud made a writing which purports to be the act of another.' The same court, while Benjamin N. Cardozo was Chief Justice, said the definition of the New York statute 'may be widened, in accordance with common-law analogies.' World Exchange Bank v. Commercial Cas.Ins. Co., 255 N.Y. 1, 173 N.E. 902, 904. Our own courts, construing the term 'embezzlement' in a fidelity bond, have held it was not a prerequisite to coverage that the offending party 'be technically and criminally guilty of the offenses named in the bond' or 'that a criminal prosecution could have been successfully maintained.' Fidelity Deposit Co. v. Central State Bank, Tex.Civ.App., 12 S.W.2d 611, 612; Massachusetts Bonding Ins. Co. v. Texas Finance Corp., Tex.Civ.App., 258 S.W. 250, 253; Hartford Acc. Ind. Co. v. Wichita Laundry Co., Tex.Civ.App., 23 S.W.2d 765, 767. We find no decision by an appellate court which has required every element of the statutory offense of forgery as a prerequisite to recovery or defense under the terms of the bond, and we cannot logically determine this was the intent.
is of the opinion and concludes, as a matter of law, that the liability of the defendant, Lawyers' Lloyds of Texas, under the written instrument upon which this suit is based, is limited to judgment obtained for injuries occasioned by the operation over the streets of the City of Goose Creek, Texas, of the taxicab described in the said instrument, and that the said defendant is not liable to these plaintiffs for the reason that the injuries for which they obtained the judgment here sued on were sustained in a collision which occurred outside the city limits of the City of Goose Creek, Texas." In this court, the appellants thus state their single point of error: "The trial court erred in concluding, as a matter of law, that the liability of the appellee, under the terms of the bond sued on, was limited to those accidents which occurred within the city limits of Goose Creek, Texas," citing in support thereof these authorities: Fidelity Deposit Co. v. Central State Bank, Tex. Civ. App. 12 S.W.2d 611; Magnolia Pet. Co. v. Connellee, Tex.Com.App., 11 S.W.2d 158; Pierce-Fordyce Oil Ass'n v. Warner, Tex. Civ. App. 187 S.W. 516; Potomac Ins. Co. v. Easley, Tex.Com.App., 1 S.W.2d 263; Shade v. Anderson, Tex. Civ. App. 36 S.W.2d 1041; Southern Surety v. Austin, Tex.Com.App., 17 S.W.2d 774; Watkins v. Minter, 107 Tex. 428, 180 S.W. 227; Western Ind. Co. v. Murray, Tex.Com.App., 237 S.W. 1109. The appellee, in turn, asserts the correctness of the trial court's stated conclusions of law upon these detailed considerations:
The trial court found that the money was taken dishonestly and with intent to steal it. This may be called a theft or an embezzlement, but whatever it may be called, it was covered by appellant's fidelity bond, which protected appellee. Hartford Accident I. Co. v. Wichita Laundry Co. (Tex.Civ.App.) 23 S.W.2d 765; Fidelity Deposit Co. v. Central State Bank (Tex.Civ.App.) 12 S.W.2d 611. The phrase "including that for which the employer is responsible," expressed in the terms of the fidelity bond as protecting the employer against pecuniary loss by reason of the dishonesty, theft, embezzlement, etc., of an employee, makes the insurer liable for any funds so lost while in the care and keeping of the employer, although such funds are at a subsequent date to the loss intended to be delivered by the employer to a corporation theretofore organized, but not yet actively engaged in business in its own name.
The testimony was ample to sustain plaintiff's contention that Porterfield failed to return any of the articles of laundry which he took out of plaintiff's plant for delivery to customers, and failed to return any collections therefor; but no evidence was introduced to show that he actually made such collections, aside from the circumstances just related and other testimony of fraudulent transactions in the manner of diverting some of the laundry from one schedule to another. In Fidelity Deposit Co. v. Central State Bank, 12 S.W.2d 611, 612, opinion by Justice Stanford of the Court of Civil Appeals at Waco, the following was said: "We do not think the contract of indemnity in this case makes it a prerequisite to a recovery that the offending party should be technically and criminally guilty of the offenses named in the bond. The embezzlement of the notes or the proceeds of said notes, though, perhaps, not embezzlement in the sense that a criminal prosecution could have been succesfully maintained, yet was such embezzlement as is comprehended by the contract of insurance herein.