Case Information

*1 ,. . __ ,. ., .

Honorable John C. Marburger

county Attorney

Fayette County

La Grange, Texas

Dear 31~: Opinion Be. O-2708

R.: Liability of surety upon statutory bond of driver of school bus, under contract with Carmine Independent Sahool District, for act or omission of a substitute driver under the four factual situations stated.

Your letter of September 3, 1940, submits for the opinion of this department the following questions:

"I am herewlth encloalng a copy of a con- tract entered into w the school beard of the Carmine Independent School District and W. F. Graeber as driver of the school bus for said independent school district. I am also encloa- Fng a cepy of the bond entered Into by W. F. Graebep, as principal, and St. Paul-Mercury Indemnity Company, of St. Paul as surety, to secure a faithful performance of the afore- mentioaed contraat. Mr. Graeber, the coatract- cd bus driver, is to transport pupils within the district the school district. only, aad the bus is owned by "Uader the terms of the eaolosed bond and contraat, would the surety be liable In a cause of action due to sbae act or omission of a 'sub- stltute drlvor' in the following casoa: "(1). Where the regular bus driver se- cures a substitute driver with the knowledge and consent of the school superintendent; such substltute driver to serve at the will and pleasure of the regular driver and not only In 'urgent cases.'

“(2). Where the regular driver, in urgent cases, secures a substitute driver with the knowledge and consent oi the school superintendent. “(3). Where the regular bus driver secu?cs a substitute driver wlthout the knowledge and consent of the school superintendent; such sub- stltute driver serving at the will aad pleasure of the regular driver and not only in urgent cases. “(4). Where the regular driver, in urgent cases, secures a substitute driver without the knowledge and consent of the school superlntendent.R The amount, terms and conditions of the bond un- der consideration here, are fixed by Article 26ma, Vernot& Annotated Revised ClvLl Statutes of Texas as follows:

“The trustees of any school district, common or independent, making provision for the transportation of pupils to and from school, shall such purpose employ or contract with a responsible person or firm. No person shall be employed to transport pupils, who Is not at least twenty-one years of age and a competent driver OS motor vehicles and sound In body and mind. All motor vehicles operated by school dlstrlcts, directly or by contract, In the transportation of puplls shall be covered and so glassed 0~ curtained at the sides and rear as to protect the pupils from the lnclemencles of the weather, and shall at all times be equipped with efflclent lights and brakes. The drivers of all school transportation vehicles shall be required to give bond for such amount as the Board o? Trustees of’ the district may not less than $~2,000.00 payable to prescribe, the district, and conditioned upon the faithful and careful discharge of their duties for the protection of the pupils under their charge and faithful performance of the contract with (said) School Board; and they shall, before crossing any rallroad or interulrban rallwar tracks, bring their vehicles to a dead stop. Failure to stop before crossing such railway as pro- *3 Honomble John C. Marburger, Page 3

vlded herein shall forfeit the drivers aon- tiact and, In aaee of sccldent to pupils or vehiales the bond shall be forfeited and the amount and all right thereunder shall be g8iP" by EL court of competent jurisdia- (Acts 1929, Slat Leg., 1st C.S., p. 96, Ea. 42 It; 1) .,r i

It vlll be noted that the foregoing atatute is silent upon the right and authority of a school ,bus driver, or ths trustees of a school district, to arrange or pro- vide for s substitute driver under anP oonditions, urgent or otherwise. But there appearing in the statute, either expressly or by implication, no denial or prohibition of the use by tbs aoutractlng parties of a substitute driver, we think it is competent the parties involved to con- tract in this regard and,be goverued thereby.

In this conneation, the copy of the bus driver's contract submitted by you provides:

"It Is also agreed that this aontmct shall not be transferred to a third party without written permIssIon from the school board, and that no driver shall be substituted, except la urgent aaaea, without aonseut of the school superintendent."

We construe ,thls language of the contract to mean that a school bus driver may be substituted for the driver under, contraat, only with the consent of the school super- intendent, but that such substitution may be had and con- sent given in all insWinces deemed necessary and desirable, and Is not limited to "urgent cases." Under the plain language of the contraat, "urgent cases" constitutes the one exaeptlon to the procuring of the consent of the school superintendent. Stated otherwise, in "urgent cases" a driver of a school bus may be substituted for the driver under contract, even without consent of the achool'super- ~intendent, but in all other cases such substitution maj be made by first procuring the consent of said superln- ,tendent.

It but remains to be determined if this can- tpnctusl provision governing the use of a substitute driver of s school bus, ouued and operated by Carmine Independent school District, may, as a matter of law, be read into the obligation and condition of the contract of suretyship en- tered Into by St. Paul-Mercury Indemnity C~mpnuy of St. *4 Paul, so as to render said surety liable for any actionable act or omission of a driver of said school bus, substituted W. F. Graeber, the contracted driver and the principal in said bond. In our opinion, this contractual driver sub- stitution clause should be considered as incorporated into the obligation and condition of the surety bond, both by the express terms of said bond and under the authorities of this State.

We quote the condition of the bus driver's bond in question:

"If said party shall well and truly perform the conditions and obligations imwostd bv reason of Chapter 42, Acts of Ehe FortJr-first Legisla- 'cure, First Called Session, and of this contract on reverse side with said board of trustees en- tered into this 9th day of September, 1940, then this bond shall be null and void. otherwise to remain in full force and effect.' (Underscoring ows)

Bonds and other instruments executed as a part of the same transaction art to be construed together. This principle of construction finds support in the Texas cases. page 85. The instant cast is a 7 Texas Jurisprudence, stronger one for the application of this doctrine, because not only were the instruments executed as a part of the same transaction but the terms of the contract are express- ly incorporated into the bond by reference. That such ln- strumtnts will be construed together is established by the cases of Ward vs. Hubbard, 62 Tex. 559; Witherspoon Oil Company vs. Randolph (Corn. App.) 298 S. W. 520; Marsh vs. Phillips, 144 S. w. 1160.

Additionally, we point to the equally well tstab- lished rule of constructlou that bonds required by statute will be liberally construed In the public interest in order to effectuate the purpose intended. This is upon the tht- ory that the public has a direct interest in such bonds, and ~they will be construed so as to giva effect to the protection contemplated by the statute; In fact, to ac- complish this end, such bonds are given a more liberal 7 Texas construction than bonds voluntarily entered into. Jurisprudence, page 84-85; Farmers State Bank vs. Brazoria countJ 275, s. w. 1103; Boyd VS. Genltempo 260 S. W. 934.

The instant case calls for the application of this rule of liberal construction because the school bus driver's bond and contract of employment, and the statute providing for their execution, manifests the intent that the obligation of the bond is for the benefit of the school children to be transported, or, in other words, for the benefit of the public. In the following casts involving a school bus driver's contract and bond, identical in terms and condition under Article to the ones executed in the instant case

2687a, Vernon's Annotated Revised Civil Statutes of Texas, the courts held that suoh bonds were executed for the benefit of the school children to be transported rather than for the benefit of the trustees-- in such bonds. Draper et al vs. Robinson nominal obligess et ux, 106 S. W. (2d) 825; Robinson et ux vs. Draper, et al (Corn. of App.) 127 S. W. (2d) 181, reversing u on an- other ground; Reeves et al vs. Tittls, 129 S. W. P 2d) 264.

The case of Draper et al vs. Robinson et ux, supra, involved a tort action brought against the prin- cipal and surety on a school bus driver's bond, for death of a scholastic as a result of the alleged negligence of said principal's son, acting as substitute driver. The bond and contract involved each contained the clauses and features hereinabove discussed. The Court of Civil Appeals reversed a judgment for plaintiffs and declared that no liability rested against the surety, in the following language:

"We see no escape from the conclusion that Republic Underwriters would not be liable. The obligation of the surety as expressed in the bond was, in substance, to answer for the con- It did not purport to duct of R. L. Draper. include the servants or agents of R. L. Draper, nor a transferee of the contract, nor a sub- stitute driver, whether with or without the permission of the school board or county super- intendent."

The Supreme Court of Texas, in the case of Robinson et ux vs. Draper et al, supra, affirmed the judgment of the Court of Civil Appeals insofar as same reversed the jud ment of the trial court, (but upon a ground 7 and modified said judgment insofar as different same was rendered that plaintiff take nothing, remanding The reversal and remand was the case ibr a new trial. upon the ground of a fatal variance between the driver's contract and bond alleged to be executed in accordance with Article 2687a, Vernon's Annotated Revised Civil *6 Honorable John C. Marburger, Page.6

Statutes of Texas, and the contract and bond put in proof, showing it to be merely a common law bond rather than a statutory bond. Nevertheless, we submit that the above quoted opinion of the Court of Civil Appeals was ntces- sarily overturned by the following declaration of the Commission of Appeals, upon the issue of liabillt~ of a surety on a school bus driver's bond for the negligence of a substitute driver:

"Since we do not have the facts before u3, any decision which we might make of the other questions presented would be upon supposable facts. Until the facts are developed we cannot satis- factorily determine the question of whether Draper should be held for the negligence of his son who was driving the bus on the occasion of the injury. The Bond offered in evidence, viewed as a common law obligation, should not be construed, as a matter of law, as excluding liability for the negligence of Thurman Draper. The facts with reference to his tmulorment have not been developed. In view, howeveE,-of another trial we feel constrained here to observe that, after a careful consideration of the bond offered in evidence, in the light of the contract offered in evidence, the material provisions of which are set out in the opinion of the Court of Civil Appeals, we are of the opinion that it was made for the benefit of the children to be transported whoever they may have been. We can give no other meaning to the bond. The County Board of Trustees had no financial interest to protect. It was simply admlnlsterFng a state fund provided to aid rural schools and could suffer no financial loss by a breach of the contract. It obligated itself to pay no consideration for the transportation of the children; the only consideration to be re- ceived by Draper being that provided by the State. If the bond was not made for the benefit of the children to be transported it amounted to nothing at all. it afforded but scant protection True, to children, but that fact alone Is not controll- ing." (Underscoring ours)

Considering that the bond involved here is a stat- utory bond, required to be executed for the protection of school children transported by bus, while the bond before the Supreme Court In the case discussed above is a volun- tary common law bond, we think, under the liberal rule of *7 Honorable J&n C. Marburger, Page 7 .

construction accorded bends executed la the public interest, the instant case is a stronger one for holding that a surety on a school bus driver's bond la not relieved, as a matter of law, frem the negligenae of a eubstitute driver, resulting in murY to a scholastic being traasportcd.

Moreovelb, as fully pointed out, the bus driver’s contract expressly allows a substitution of drivers, with the consent of' the sohoel's superintendent, and, In m-gent oases, contemplates such substitution without the consent of the said superintendent. Inasmuch as such oontractual pro- vision is, under the authorities above oited, read into the bus driver's bond, as a matter ol' law, and, moreover, is oxpresslj incorporated into the obligation oi said bond by referenoe thereto in the bond, we perceive no reason, in law or in equity, why the surety on said bend should not be bound by the consequeaaes thereof.

We aooordingly answer Your first, second, and fourth questions aff1rmativelY and Four third question la the negative.

However, la view of the faot that Your inquiry is prompted by a desire to see sohclast1os transported by school bus, proteoted by a bended driver, we think it not amiss to suggest to You and the ebhool authorities to whose attention this opinion may be brought, that this question should be reaevod from the field of construction b;r requiring in the face of sohool bus drivers' bonds here- after executed, a direct assumption and obligation on the part of the prinaipal and surety in such bonds to answer for any act or omission of a substitute driver.

Trusting the foregeing fully answers Your inquiry, we are

Yours very truly, ATTORREYGERERAL OFTEXAS PMR:RW:MJS BT is/

APPROVED SEP 27, 1940 Pat M. EcPf, Jr. Assistant /s/ Gerald C. Mann ATTORNEY GENERAL OFTEXAS

APPROVED OPIHIOE COMLUIITTEE

BY BWB, CHAIRMAr?