Benton v. Board of Educ. of Cumberland County

• Decision Date: 18 November 1931
• Docket Number: 292.
• Citation: 161 S.E. 96,201 N.C. 653
• Parties: BENTON v. BOARD OF EDUCATION OF CUMBERLAND COUNTY et al.
• Court: North Carolina Supreme Court

161 S.E. 96

201 N.C. 653

BENTON v. BOARD OF EDUCATION OF CUMBERLAND COUNTY et al.

No. 292.

Supreme Court of North Carolina

November 18, 1931

Appeal from Superior Court, Cumberland County; Midyette, Judge.

Action by A. B. Benton, administrator of Woodrow Brafford, against the Board of Education of Cumberland County and others. From a judgment dismissing action as to certain defendants plaintiff appeals.

Affirmed.

Sureties on bus driver's bond to school board are not liable for death of pupil while passenger.

Bus driver and his surety held improperly joined in action for pupil's death through bus driver's negligence.

This is an action to recover damages for the death of plaintiff's intestate, Woodrow Brafford, who at the date of his death was 12 years of age, and attending Long Hill School in Cumberland county as a pupil in said school.

It is alleged in the complaint that the proximate cause of the death of plaintiff's intestate was the negligence of the defendants, board of education of Cumberland county, and J L. Reaves, in the operation of the automobile or school bus in which plaintiff's intestate was being transported from his home to Long Hill School, at the time he suffered the injuries which resulted in his death. This school bus was provided by the defendant board of education of Cumberland county, as authorized by C. S. Supp. 1924, § 5489, and was operated by the defendant J. L. Reaves under his contract with said board, for the transportation of teachers and pupils in the Long Hill school district. At the time plaintiff's intestate suffered his fatal injuries, the school bus was overcrowded with pupils, and he was required to stand near a door of the bus. He was pushed against this door, which suddenly opened because of a defective latch. Plaintiff's intestate fell through the open door to the ground, and thereby suffered the injuries from which he died.

The defendant Great National Insurance Company had insured the defendant board of education of Cumberland county against loss by reason of liability for bodily injuries or death accidentally suffered by the operation of the school bus, in which plaintiff's intestate was riding at the time he was injured, within the limits set out in its policy. This policy was in force at the date of the death of plaintiff's intestate. The premium for said policy was paid by the defendant board of education of Cumberland county out of the school fund of said county. It is provided in said policy that the insurance provided thereby should extend to any person or persons while riding in or legally operating said school bus for the transportation of teachers and pupils in the Long Hill school district in Cumberland county.

The defendants, J. E. Reaves and W. T. Reaves are sureties on the bond given by the defendant J. L. Reaves to the defendant board of education of Cumberland county in the sum of $1,000 conditioned for the faithful performance by the said J. L Reaves of his contract with the board of education of Cumberland county for the operation of school busses provided in part by said board for the transportation of teachers and pupils in the Long Hill school district. The defendants J. L Reaves, J. E. Reaves, and W. T. Reaves are now insolvent.

It is further alleged in the complaint that by reason of the matters and things set out therein, "and more particularly their knowledge at the time of the issuance of said policy and the payment and acceptance of the premium therefor from the public school fund of the county, that the Board of Education of Cumberland County is a governmental agency or instrumentality of the State, the defendants thereby waived immunity from liability, if any existed, on such or similar grounds, and they are and ought to be in equity and good conscience forever estopped from claiming the same or setting up such or any similar defense in this action."

Each of the defendants, other than the defendant Great National Insurance Company demurred to the complaint on the ground, among others, that the facts stated therein are not sufficient to constitute a cause of action against said defendant.

At the hearing of the action in the superior court, on the several demurrers of the defendants board of education of Cumberland county, and J. L. Reaves, J. E. Reaves, and W. T. Reaves, and on an appeal by the defendant Great National Insurance Company from an order of the clerk denying the petition of said defendant for the removal of the action to the federal court, for trial, judgment was rendered as follows:

"This cause coming on to be heard at this term of the Court upon the demurrers filed by the Board of Education of Cumberland County, and by J. L. Reaves, J. E. Reaves and W. T. Reaves, and also upon the appeal by the defendant, Great National Insurance Company, from the order of the Clerk of the Superior Court of this County, denying the petition of that defendant to remove the cause to the United States District Court for the Eastern District of North Carolina; and being heard, after argument of counsel on both sides;

"It is considered, ordered

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