186 S.E. 302 | W. Va. | 1936
This is an action upon an automobile liability insurance policy.
On September 3, 1933, the defendant, Western Southern Indemnity Company, issued an automobile liability insurance policy, for a term of ten months, to the Board of Education of Wayne County in consideration of a premium, later paid by the board, of $1262.35, covering the operation of school buses in the county. The policy, among other protective covenants, provided as follows: "In consideration of the premium at which this *542 policy if written, the company further undertakes and agrees to pay, within the limits at which this policy is written, and without regard to liability or non-liability on the part of the named assured, such amounts as the agents, servants and employees of the named assured, or any one or more of them, shall become obligated to pay by reason of liability imposed by law upon such agents, servants and employees, or upon any one or more of them, for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons (except employees of the named assured engaged in the course of their employment) and caused by the operation or use for the named assured of motor vehicles of the named assured designated in this policy by such agents, servants and employees, or by any one or more of them, while acting within the scope of their employment."
On May 24, 1934, one of the buses covered by the policy while being operated by the plaintiff, Boyd N. Adkins, as a servant of the board of education, collided with a bridge, causing injury to Byrd Finley, a public school pupil, who was riding in the bus. Thereafter, Byrd Finley instituted an action by J. Finley, as next friend, against Adkins and the board of education. The action having been dismissed against the board, upon demurrer, judgment in the sum of $800.00 was rendered against Adkins in favor of Byrd Finley. This action was then brought by Adkins to recover from the insurance company the amount of the judgment, costs, interest and a fee of $150.00 to his attorneys for instituting and prosecuting the same. Defendant pleaded the general issue and filed two special pleas, the first, averring that the act of the board of education in obtaining the insurance policy was ultra vires, rendering the policy void; the second, charging that the plaintiff had failed to promptly furnish defendant with a copy of the summons in the original action as required by the policy. Upon the trial of the case, the jury rendered a verdict for the full amount sued for, and judgment was entered accordingly.
Section 13, article 8, chapter 11, Code 1931, prohibits *543
a board of education to expend any money or to incur any indebtedness which it is not expressly authorized by law to expend or incur, and authorizes the recovery of any money paid in violation thereof. In Board of Education of Raleigh County
v. Commercial Casualty Ins. Co.,
We are, therefore, of opinion, in accordance with the principle of our holding in Taylor v. McMillan Hospital,
Reversed and remanded. *544