On Rehearing. On a former day of this term of court, the above cause was reversed and remanded because of error of the trial court in refusing to admit certain evidence offered by appellant, and appellee has filed a motion for rehearing. We have carefully considered said motion, with the result that we see no reason for changing our opinion that the trial court committed error in refusing to admit the testimony. This question is fully discussed in the opinion rendered by former Associate Justice VAUGHAN, and appellee's motion for rehearing is overruled.
After again analyzing the evidence in this case, as set out in the original opinion, in the light of the opinion of the Commission of Appeals in the case of Austin, Commissioner, v. Neiman, 14 S.W.2d 794, we have concluded that this court erred in reversing and remanding the case for another trial, and that the judgment this court should have rendered was to have reversed and rendered the case in favor of appellants.
It clearly appears from the record, and is admitted in appellee's motion for rehearing, that the case was fully developed in the trial as to the defenses of appellees, and that the rejected testimony, which called for a reversal of the case, is only cumulative of other testimony on the same issue offered by appellants. Our conclusion is that the legal effect of the testimony admitted in evidence conclusively shows that Cone actively participated in the unlawful acts of the cashier and vice president of the Navasota Bank, by means of which large sums of money were lost to the bank and applied to the personal use and benefit of said bank officials. Such conclusion is impelled by the announcement of the law in the case of Austin, Commissioner, v. Neiman, supra, under facts that cannot be distinguished from the facts of the instant case.
In the reported case, Neiman as bookkeeper, on the request of an officer of the bank, accomplished the same wrongful purpose as was accomplished by Cone at the request of the vice president and cashier of the Navasota Bank in the instant case; also in the reported case Neiman testified as to his ignorance of the wrongful purpose of the officer of the bank, just as in the instant case Cone testified as to his ignorance of the wrongful purpose of the said officers of the Navasota Bank. The evidence shows, in the reported case, that Neiman manipulated certain books of the bank in a way that would prevent discovery of the shortage, and, in the instant case, the undisputed evidence shows that Cone manipulated bank, and customers' pass, books, in a way that concealed the wrongful acts of the said officers of the Navasota Bank. In respect to this question, the instant case is stronger in evidentiary facts than those in the reported case.
In the reported case, it was held that, notwithstanding Neiman's testimony of ignorance, the evidence "established beyond controversy that Neiman aided and assisted Lowe in the unlawful appropriation of the bank's funds. * * *" This conclusion of the Commission of Appeals, approved by the *Page 672 Supreme Court, compels the announcement of the same conclusion in the instant case, that the evidence establishes beyond controversy that Cone aided and assisted the vice president and cashier of the Navasota Bank in the unlawful appropriation of the bank's funds. Therefore this court, on its own motion, sets aside its former order reversing and remanding this cause for another trial, and here renders judgment against Cone in the sum of $7,248.76, with interest at the rate of 6 per cent. per annum from the date of the trial of the case in the district court, and renders judgment against the American Surety Company, as surety on Cone's fidelity bond, in the sum of $2,500, together with interest at the rate of 6 per cent. per annum from the date of the judgment in the district court.
Motion of appellee for rehearing overruled, and the court on its own motion renders the judgment above described. In view of the judgment here entered, appellees have the right to file a motion for rehearing without regard to their former motion.
Reversed and rendered.