Metropolitan Atlanta Rapid Transit Authority v. Tuck, Nos. 63810

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: CARLEY; QUILLIAN
• Citation: 292 S.E.2d 878,163 Ga.App. 132
• Parties: , 5 Ed. Law Rep. 285 METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. TUCK et al. TUCK et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
• Decision Date: 29 June 1982
• Docket Number: Nos. 63810,63811

Page 878

292 S.E.2d 878 163 Ga.App. 132, 5 Ed. Law Rep. 285 METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY
v.
TUCK et al.
TUCK et al.
v.
METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY. Nos. 63810, 63811. Court of Appeals of Georgia. June 29, 1982.

Page 880

[163 Ga.App. 140] Terrence Lee Croft, Lawrence L. Thompson, Atlanta, for appellant in no. 63810.

Stephen L. Goldner, Howard M. Lessinger, Atlanta, for appellee in no. 63810.

Stephen L. Goldner, Atlanta, for appellant in no. 63811.

Terrence Lee Croft, Howard M. Lessinger, Atlanta, for appellee in no. 63811.

[163 Ga.App. 132] CARLEY, Judge.

On December 1, 1978, plaintiff-appellee Jeffrey Tuck, a minor, was riding home from school on a bus owned and operated by defendant-appellant Metropolitan Atlanta Rapid Transit Authority (MARTA). The bus was not identified and equipped as a "school bus" in the manner provided by Code Ann. § 68A-706. When the MARTA bus stopped across the street from Jeffrey's home, he stepped from the bus and ran in front of the bus and into the street. While in the street, Jeffrey was struck by an automobile owned and operated by Anthony Rucker.

Jeffrey and his father, S. J. Tuck, each brought suit against MARTA and Rucker. Subsequently, the plaintiffs and MARTA entered into a joint stipulation of material facts and filed cross motions for summary judgment to determine whether the MARTA bus was, at the time of the incident, a "school bus" within the definition of Code Ann. § 68A-101(46)(b) and thus in non-compliance with the identification and equipment requirements of Code Ann. § 68A-706(c). The trial court granted the plaintiffs' motion for summary judgment as to this issue and denied MARTA's motion. Accordingly, the case was submitted to the jury under instructions that MARTA's non-compliance with Code Ann. § 68A-706(c) "at the time of the accident amounts to negligence as a matter of law." The jury returned verdicts in favor of both plaintiffs, apportioning the damages recoverable against each defendant. With [163 Ga.App. 133] regard to S. J. Tuck's claim for his son's medical expenses, the verdict stated: "We, the jury, find for the plaintiff S. J. Tuck $4,500.00 in compensatory damages against defendant(s) MARTA in the amount of $700.00 and Rucker in the amount of $3,800.00." With regard to Jeffrey Tuck's claim, the verdict returned stated: "We, the jury, find for the plaintiff Jeffrey Tuck, b/n/f S. J. Tuck, $38,400.00 in compensatory damages against defendant(s) MARTA in the amount of $6,000.00 and Rucker in the amount of $32,400.00." The trial court, after making inquiry from the jury foreman, entered a final judgment on both verdicts. Said judgments made no apportionment between MARTA and Rucker and were entered, in favor of S. J. Tuck and Jeffrey Tuck in the amounts of $4,500 and $38,400 respectively, against both defendants "jointly and severally."

In Case Number 63810, MARTA appeals from the joint and several judgments entered on the verdicts returned for the plaintiffs. In Case Number 63811, the plaintiffs cross-appeal, asserting as error an evidentiary ruling by the trial judge and certain jury instructions.

Case Number 63810

1. MARTA asserts that, as a matter of law, the bus in which Jeffrey Tuck was riding on December 1, 1978, was not a "school bus." MARTA relies upon former Code Ann. § 68-311 as construed in Hanks v. Georgia Power Co., 86 Ga.App. 654, 656-657, 72 S.E.2d 198 (1952): "We think that this act was intended to apply to busses primarily and exclusively used for [transporting school children to and from schools], and not to a bus operating as a common carrier for hire, traveling on a schedule along an established route, and transporting school children only as an incident of its duty to transport any member of the public who wishes to ride and pays his fare ... [I]t would be unreasonable to hold that the bus of a common carrier of passengers becomes a school bus whenever a school child going to or from school boards it, thereby imposing statutory duties upon the carrier and upon other traffic using the streets beyond the common-law duties of exercising certain degrees of care in respect to the passengers' safety."

However, resolution of the issue presented for review also requires consideration of the holding in Dishinger v. Suburban Coach

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Co., 84 Ga.App. 498, 66 S.E.2d 242 (1951). In Dishinger, a case also involving former Code Ann. § 68-311, it was held: "[T]he petition shows that Suburban Coach Company, Inc. was using a bus to transport school children to and from Cascade Heights School; that the bus, when so appropriated, hauled only school children; and that the bus here involved was not marked 'school bus' as required by Code Ann. § 68-311 ... and, in fact, was not marked in any way to [163 Ga.App. 134] indicate that it was transporting school children. So, the coach company regularly operates busses used in transporting school children to and from Cascade Heights School, according to the petition, and even though it has a license to operate as a common carrier this does not exempt it from marking such busses 'school bus' when and while they are being so used in transporting school children. The statute plainly says that 'all motor vehicles used in transporting school children to and from schools shall be distinctly marked 'School Bus' on both front, rear, and sides thereof, in letters of not less than five inches in length, etc.' To operate the bus in transporting school children without its being so marked, under the circumstances alleged in the petition, was negligence per se." (Emphasis supplied.) Dishinger, 84 Ga.App. at 505, 66 S.E.2d 242, supra.

The undisputed facts of the instant case demonstrate that the operation of the MARTA bus on December 1, 1978, falls squarely within the "circumstances" held in Dishinger to show the operation of a "school bus" rather than the "incidental" transporting of school children which was shown in Hanks. Those facts are as follows: The MARTA bus route in question, P-164, was, at the times relevant to the instant appeal, a regularly scheduled MARTA route but one in which the determinative factor for the establishment of that regular schedule was the transportation of school children, not the general public. On each day of the school year, a MARTA bus would leave the garage at approximately 2:15 p.m. and proceed to the driveway of Jeffrey Tuck's school, the first scheduled stop of the route. The bus would then apparently wait for the end of the school day before beginning its route. On certain days, the school principal or a teacher assisted the children from the school in boarding the bus. On occasion, the principal or teacher asked the MARTA driver to wait past the scheduled departure time or told the driver that all the children from the school had boarded the bus, indicating that the driver need not wait until the scheduled departure time to leave the school grounds. Although the bus followed a predesignated route after leaving the school, one of the children, the "Safety Patrol", instructed the driver where to stop along the route in order to let the other children off. This is the procedure which was followed on December 1, 1978. Jeffrey Tuck and approximately 29 other children left the school and boarded the MARTA bus which bore no signs designating it as a "school bus". At the first stop requested by the "Safety Patrol", Jeffrey Tuck disembarked, ran in front of the bus and was struck by Rucker's automobile. At that time, all the passengers on the bus were school children. The evidence further establishes that the route and procedure which was followed during the school...