Summary
holding that plaintiff injured by county school bus could sue county's insurer directly because of mandatory liability insurance; "[T]o all intents and purposes the insureds are, under the statute, the school children and the members of the general public."
Summary of this case from Florida Intern. Indem. Co. v. City of MetterOpinion
35114.
DECIDED APRIL 28, 1954. REHEARING DENIED MAY 12, 1954.
Action for damages. Before Judge Perryman. Taliaferro Superior Court. February 4, 1954.
Norman Krasner, pro se, D. W. Krasner, for plaintiff in error.
T. J. Long, Earle Norman, contra.
1. The members of a county board of education are not subject to suit in their official capacities for the negligent operation of county school buses; nor are such members subject to suit in their individual capacities unless it be shown that the negligent operation of such buses was such as to amount to malicious, wilful, and wanton conduct on the part of such members as individuals.
2. An insurance company writing insurance in compliance with the provisions of the act of 1949 (Ga. L. 1949, p. 1155) may be sued directly on the contract of insurance by a member of the public who sustains damage to his person or property resulting from the negligent operation of school buses covered by the contract of insurance.
3. Where, in ruling upon demurrers, the trial court allows time within which to amend, such ruling is not subject to review.
DECIDED APRIL 28, 1954 — REHEARING DENIED MAY 12, 1954.
In his action for damages, the material allegations of Norman Krasner's petition as finally amended are substantially as follows:
1a. The defendants herein named are A. J. Harper, as chairman and as a member of the Taliaferro County Board of Education; L. H. West, J. Owen Moore, G. Y. Edwards, and Jack Veazet, as members of the Taliaferro County Board of Education; E. T. Portwood, as superintendent of the Taliaferro County Board of Education; A. C. Taylor, individually, and as a driver, operator, servant, agent, and employee of the Taliaferro County Board of Education; and American Guarantee Liability Insurance Company, a corporation authorized and licensed to engage in and conduct the business of writing, handling, and issuing contracts of liability insurance in Georgia and Taliaferro County.
2a. The plaintiff claims of the defendants, in their capacities specified herein, jointly and severally, the sum of $25,000 for injuries, damages, and pain and suffering.
3a. The defendants, Harper as chairman and as a member, and West, Moore, Edwards, Veazet, as members of the Taliaferro County Board of Education, constitute and make up the Taliaferro County Board of Education, and E. T. Portwood, as superintendent of the Taliaferro County Board of Education and the Taliaferro County Schools, acts as secretary to the School Board, as provided by law, and they have custody, control, supervision, and management of the property, schools, and buses of the Taliaferro County Schools; and the Taliaferro County Board of Education, as provided by law, has charge, control, supervision, management and direction of the employees, teachers, drivers and operators of the school buses of said county and school board, as provided by law.
4a. A. C. Taylor was engaged, hired, and employed by the said defendants as said School Board to drive and operate a bus or buses of said Board in Taliaferro County to transport school children of Board's schools to and from the schools in Taliaferro County; and, on December 5, 1951, A. C. Taylor did operate and drive a bus belonging to and the property of said School Board.
5a. The said School Board is authorized and required by State law to cause policies of insurance to be issued insuring the children riding in the buses as well as the general public against death, bodily injury and property damage resulting from accidents in which buses are involved, and said State law reads as follows: (Here are quoted the five sections of the act of 1949, Ga. L. 1949, p. 1155).
6a. The quoted State law is mandatory in nature and requires the said school board to cause policies of insurance to be written on said board's school buses for the benefit of the school children patronizing them and for the benefit of the general public to insure them against personal injury or death or damage to property resulting from accidents or collisions in which school buses are involved.
7a. In compliance with that law, the defendant American Guarantee Liability Insurance Company did issue and write insurance policies on the said Board's bus and buses and issued the policies for the benefit of the school children patronizing the buses and for the benefit of the members of the general public.
8a. The American Guarantee Liability Insurance Company, named as one of the defendants, jointly and severally, has an agent, an office and place of doing business in Taliaferro County.
9a. By the terms of Section 3 of the Act of 1949, the defendant American Guarantee Liability Insurance Company is estopped to deny its liability under the insurance policy issued by it on account of the non-liability of the School Board or its members.
10a. The plaintiff was injured and damaged by reason of the negligence of the defendant A. C. Taylor, individually, and as the operator, driver, agent, servant, and employee of said chairman and members of Taliaferro County Board of Education, and said Board in the operation of the said school bus herein specified on December 5, 1951, at or about 3:00 o'clock p. m., on State Highway 12 between Crawfordville and Greensboro at a point approximately one-tenth of a mile west of Crawfordville, and within the limits of Taliaferro County.
11a. At the time and place in question the plaintiff was driving in a westerly direction from Crawfordville toward Greensboro and the Taliaferro County Board of Education's school bus, properly licensed and designated, was being driven in the same direction.
12a. Another vehicle, a passenger car, was following the plaintiff's car, the driver of that vehicle sounded his horn and the plaintiff pulled his car to the right and allowed that vehicle to pass. After passing the plaintiff the other vehicle was between the plaintiff's car and the school bus, and that driver sounded his horn again and the school bus pulled to the right and the vehicle passed the school bus also.
13a. After the other vehicle was about 100 feet from the school bus, the plaintiff sounded the horn of his car to warn the defendant Taylor, the driver of the school bus, and the school bus pulled toward the right side of the highway and the plaintiff proceeded to pass the school bus.
14a. After the plaintiff had passed the rear of the school bus, but before his car had reached the center, or middle, of the bus, the defendant Taylor suddenly, without warning, started into a left turn toward the entrance or driveway to the home of E. A. Taylor, in violation of State law.
15a. The defendant Taylor failed to apply the brakes and stop the bus so as to allow the plaintiff to finish passing the bus before the bus started into its left-hand turn toward the said driveway on the left side of the highway.
16a. As the defendant Taylor approached the driveway, he failed to apply the brakes of the bus and to look toward the left and rear to ascertain if the plaintiff's car was approaching or passing the bus on the left side of the bus, and failed to allow the plaintiff's car to pass before turning left to enter the driveway on the left side of the highway.
17a. On approaching the driveway, Taylor failed to apply the brakes and to stop the bus before turning left at the driveway, which was not a duly designated bus-stop with school bus stop signs posted thereabout to warn motorists of a left turn at such driveway, and the driveway was not a duly recognized or designated intersection, street, road, or highway.
18a. At all times in question, the school bus was loaded and filled with school children being taken home from the Taliaferro County School located in Crawfordville, and the defendant Taylor drove the school bus without regard to the safety and welfare of the school children patronizing the bus, and without regard to the safety and welfare of the members of the general public using the highway.
19a. By reason of the driving and operation of the school bus by the defendant Taylor in the manner and means aforesaid, the plaintiff was forced to pull the steering gear of his car suddenly to the left to keep the bus from colliding with his car, and then, in attempting to straighten the car's travel, the car veered into a rural mail box post and turned over one, two, or more times and landed in a ditch with the plaintiff knocked unconscious for a period of time.
20a. In order to extricate the plaintiff from his car, it was necessary for the doors of the car to be broken open by persons unknown to the plaintiff.
21a.-22a. The plaintiff suffered enumerated injuries.
23a. At the time and place in question the defendant Taylor failed to extend his hand and arm out of the left side of the school bus in a horizontal position to indicate, signal, and warn of his intention to turn left into the driveway on the left side of the highway.
24a. The defendants Harper, West, Moore, Edwards, Veazet, and Portwood in their respective and official positions and capacities, and as the Board of Education of Taliaferro County, were negligent in failing to check, test, and determine whether or not the defendant Taylor, as driver and operator of the school bus, was familiar with and had knowledge of the rules and regulations and laws governing the driving of motor vehicles and buses on the highways and roads of the State.
25a. Those defendants, making up and comprising the School Board, were negligent in failing to check, test, and determine whether or not Taylor drove and operated the school bus in a safe and proper manner with full consideration and regard for the safety and welfare of the children patronizing the school bus and for the members of the general public.
26a. By reason of the collision the plaintiff suffered enumerated permanent injuries to himself, certain injuries to his personal property, and incurred enumerated expenses for medical services and care.
27a. The defendant members of the Board of Education were negligent in failing to check, test, and determine whether or not the defendant Taylor, the driver and operator of the school bus, was familiar with and acquainted with and had full knowledge of the rules, regulations, and laws regulating the driving and operating of school buses on the streets, roads, and highways of the State.
b. In failing and neglecting to check, test and determine whether or not the defendant Taylor drove, operated, and managed the school bus in a safe, proper, and adequate manner with full regard for the safety of the school children and the members of the general public.
28a. The defendant Taylor was negligent in the following particulars:
A. In failing to apply the brakes of the bus and stop the bus before making a left turn towards a private driveway on the left side of the highway.
B. In failing to apply the brakes and stop the bus so as to allow the plaintiff's car to pass after it had already passed the rear of the bus after the bus had been pulled to the right after the plaintiff had signalled by sounding the horn of his car.
C. In failing to apply the brakes and stop the bus before starting to turn left without first extending the left hand and arm from the left side of the bus in a horizontal position to indicate a left turn as required by State law.
D. In failing to look towards the rear towards the left to see if the left side of the road was clear before turning left on a public highway.
E. In failing to apply the brakes and stop the bus before turning to the left side of the highway at a place which was not an intersecting street or cross street, road, or highway, but a private driveway.
F. In failing to observe the rules, regulations, and laws governing the operation of motor vehicles and school buses on the public streets and highways with proper regard for the safety and welfare of the children patronizing the school bus and the members of the general public using the highway.
G. In operating and driving the school bus in a manner that disregarded the condition of the highway, the other vehicle being driven thereon, and the safety of the children in the bus and the occupants of other vehicles.
H. In failing to signal or warn the plaintiff of his intention to make a left turn so that the plaintiff could have avoided the necessity of having to veer to avoid being hit by the bus and subsequently injured as alleged.
I. In failing to see the plaintiff's car in the act of passing the bus.
J. In failing to see that the plaintiff's car had not fully passed the bus.
K. In failing to stop the bus thereby endangering both the plaintiff and the children in the bus.
29a. The plaintiff's injuries and damage are painful and permanent.
30a. All of such injuries were inflicted in Taliaferro County.
31. The American Guarantee Liability Insurance Company, defendant named herein, is estopped under and by virtue of the act of 1949 from denying its liability under the policy of insurance which it issued on the school bus which belonged to the school board and was driven and operated by the defendant Taylor.
32a. The plaintiff demands a trial by jury and further demands and moves that the jurors be qualified as to their interest directly or indirectly as stockholders or relatives of stockholders by blood or marriage, as employees or agents or relatives of such blood or marriage, of the American Guarantee Liability Insurance Company.
33a. The school bus is a public carrier and the American Guarantee Liability Insurance Company as the insurer has issued a policy of insurance on such public carrier and is herein named as defendant, and the plaintiff prays judgment against such defendant in said capacity under the laws of Georgia herein enumerated.
The general demurrers of the defendant members of the school board and American Guarantee Liability Insurance Company were sustained and these defendants stricken from the petition on February 4, 1954.
On the same day the trial court sustained the following special demurrers of the defendant Taylor: "(a) Defendant demurs to said petition upon the ground that there is a misjoinder of parties defendant in said case and a misjoinder of causes of action in that the plaintiff is proceeding against this defendant in tort and against the defendant American Guarantee Liability Insurance Company in contract; it nowhere appearing in said petition, as amended, that the defendant American Guarantee Liability Insurance Company participated in or had any connection with the commission of the tort upon the plaintiff, as alleged therein; (b) Defendant says that, in an action of the kind sued on in this case, it is unlawful and illegal for the plaintiff to make reference to insurance or that a policy of liability insurance has been issued to the defendant, and that by making reference thereto defendant says that his rights will be prejudiced before the jury and prevent the jury from reaching a fair and impartial verdict in the case. Defendant, therefore, moves the court that all of paragraphs 5a, and 6a, 7a, and 9a and paragraphs 31a, 32a, and 33a, and subparagraphs (d) and (g) of the prayer, as contained in the amended petition, be stricken therefrom and that the plaintiff be required to rewrite the amendment omitting therefrom any and all references to insurance or insurance companies, and omitting therefrom the paragraphs called to the court's attention in this demurrer. . ."
In sustaining these demurrers, the trial court inserted the following proviso as to demurrer (a): "with the right to plaintiff to amend his petition to meet said ground of demurrer on or by the call of the case at the coming February term, 1954, of the Superior Court of Taliaferro County, or else the said petition is to be considered as dismissed."
The plaintiff has brought the present writ of error to this court to review each of the rulings made on the various demurrers.
1.(a) A county board of education is not a corporate body with power to sue and to be sued, in the ordinary sense, but is merely the agency through which the county, as a subdivision of the State, acts in school matters; and, when the members of the board of education, acting as such board, act upon matters lawfully within the jurisdiction of the board, it is the county acting through "its corporate authority"; and a county is not liable to suit unless there is a statute which in express terms or by necessary implication so declares. Board of Education for Houston County v. Hunt, 29 Ga. App. 665 ( 116 S.E. 900), and citations; Board of Education of Candler County v. Southern Michigan Nat. Bank, 184 Ga. 641 ( 192 S.E. 382). The county boards of education are expressly authorized to employ drivers for school buses by the terms of the act of 1947 (Ga. L. 1947, p. 1462; Code, Ann., § 32-426).
(b) The members of the county boards of education are not individually liable for the negligent performance of their official duties unless it be shown that their negligence amounts to malicious, or wilful and wanton misconduct. Harrell v. Graham, 70 Ga. App. 178 ( 27 S.E.2d 892); Roberts v. Baker, 57 Ga. App. 733 ( 196 S.E. 104).
Under an application of the foregoing rules of law, whether the petition be construed as an action against the county board of education or as an action against the members of the county board of education as individuals, no cause of action is stated. The board is not suable as such, and the allegations that the members of the board were negligent in failing to ascertain that the defendant was a qualified driver of school buses before hiring him do not constitute malicious, wilful, or wanton conduct in the absence of allegations that the defendant driver, Taylor, was known to be a reckless and incompetent driver. Consequently the trial court did not err in sustaining the demurrer of the defendant members of the county board of education and in striking them from the petition as parties defendant.
2. By the terms of the act of 1949 (Ga. L. 1949, p. 1155; Code, Ann., §§ 32-429, 32-431, 32-433), it is provided: "The various school boards of the counties . . . employing school buses are hereby authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from school against bodily injury or death at any time therefrom resulting from an accident or collision in which said buses are involved. . . [and] Such boards are hereby authorized to cause a provision to be inserted in said policies insuring the members of the general public against personal injury or death or damage to property resulting from the negligent operation of said buses. Nothing, however, in this law shall be construed as imposing legal liability upon such boards on account of such accidents. Wherever an insurance company issues a policy containing such a provision, the company shall be estopped to deny its liability thereunder on account of the nonliability of said board. . . Such policies shall be filed with and retained by the respective school boards for the benefit of the school children patronizing such buses and for the general public."
The policy of insurance sued on is not attached to or made a part of the petition, but it is alleged that the defendant insurance company issued a policy in compliance with the quoted provisions of the law for the benefit of the school children and the members of the general public. The insurance company's general demurrer raises the sole question of whether, under the allegations of the petition, a cause of action is set out against it.
According to the language and patent intendment of the statute, the policies of insurance contemplated, although nominally contracts between the writing companies and the various school boards, are contracts of insurance insuring the school children patronizing the buses and members of the general public against the negligent operation of the school buses.
We cannot conceive that the General Assembly, by the enactment of the statute, thought to save harmless the various school boards from the negligent operation of the school buses. As we have already demonstrated in division 1 of this opinion, the school boards were not and are not in any danger of financial loss resulting from the negligent operation of the buses, and this the General Assembly knew by conclusive presumption at the time the present statute was passed. There is not the slightest intimation that the insurance was intended for the protection of the drivers or operators of the school buses. Consequently, to all intents and purposes the insureds are, under the statute, the school children and the members of the general public. Thus the contract of insurance contemplated is a direct obligation to any member of the two classes specified in the act to pay the damage sustained by such member as the result of the negligent operation of the school buses. See Great American Indemnity Co. v. Vickers, 183 Ga. 233 ( 188 S.E. 24). The cause of action is not on the tort, but on the contract by alleging the occurrence of the condition precedent required by the statute, damage sustained by the negligent operation of the school bus. While it is true that the Vickers case is based upon the Motor Carriers Act of 1931, which expressly provided that the policy "shall be for the benefit of and subject to suit or action thereon by any person who shall sustain actionable injury or loss protected thereby," during the same session of the General Assembly at which the school bus insurance act was passed, Code (Ann. Supp.) § 3-108 was also amended to provide: "The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on said contract." Consequently, having amended the general law on the subject of suits on contracts, there was no necessity for an express provision in the later statute of the same session that suit might be brought on the contracts of insurance insuring against the negligent operation of school buses. While, under the authority of Russell v. Burroughs, 183 Ga. 361 ( 188 S.E. 451), the plaintiff would not be permitted to join his actions ex contractu and ex delicto against the insurance company and the driver tortfeasor, the question of misjoinder of causes of action and parties defendant must be raised by special demurrer. It follows, therefore, that the trial court erred in sustaining the general demurrer of the defendant insurance company.
As counsel for the defendant insurance company have relied almost entirely upon the case of Arnold v. Walton, 205 Ga. 606 ( 54 S.E.2d 424), to sustain their position, we shall prolong this discussion long enough to demonstrate the inapplicability of the principles stated in that case to the facts of the present case. There was no statute requiring the Crisp County Power Commission to cause policies of insurance to be issued insuring the general public. Nevertheless the commission took out a policy of insurance which provided that the insurance company agreed that it would not, in case of loss or damage arising under the policy, "claim exemption from liability to the named assured [the Crisp County Power Commission] because of any statute." The Supreme Court held in that case that by the terms of the policy itself no benefit were conferred upon the public. In the present case under consideration, the statute itself expressly provided for the benefits to the public and school children, and for nothing else.
3. The assignments of error on the trial court's sustaining of the defendant driver's special demurrers are not subject to review by virtue of the express terms of Code (Ann. Supp.) § 81-1001. Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99), and citations.
Judgment reversed in part and affirmed in part. Gardner, P. J., and Townsend, J., concur.