Taylor v. Cobble

• Decision Date: 05 January 1945
• Docket Number: 1.
• Citation: 187 S.W.2d 648,28 Tenn.App. 167
• Parties: TAYLOR et al. v. COBBLE et al.
• Court: Tennessee Court of Appeals

187 S.W.2d 648

28 Tenn.App. 167

TAYLOR et al. v. COBBLE et al.

No. 1.

Court of Appeals of Tennessee, Eastern Section.

January 5, 1945

Certiorari Denied by Supreme Court May 5, 1945.

Appeal in Error from Circuit Court, Greene County; Shelburne Ferguson, Judge.

Action by George A. Cobble and another against Frank Taylor and others for injuries suffered by infant when struck by school bus. From a judgment in favor of plaintiffs as to named defendant, but in favor of other defendants, named defendant appeals in error, and plaintiffs appeal.

Judgment in accordance with opinion.

On Petition to Rehear.

Milligan & Haynes, of Greeneville, for plaintiff in error.

J. W Kilgo and Leon E. Easterly, both of Greeneville, for defendants in error.

McAMIS Judge.

This is an action for personal injuries sustained by Elnora Cobble, a minor, as a result of having been struck by a school bus operated by Frank Taylor. The father also sued for medical expenses and loss of services. The jury returned a verdict in favor of Elnora Cobble for $5,000 and in favor of the father for $300.

Both actions were against Frank Taylor, the driver of the school bus, the Greene County Board of Education and Greene County. At the conclusion of plaintiffs' proof in chief the court directed a verdict in favor of Greene County but overruled a motion for a directed verdict in behalf of the other defendants, both at the close of plaintiffs' proof in chief and at the close of all the proof. However, at the hearing of the motions for a new trial, a verdict was directed in favor of the Board of Education. The motion of Frank Taylor for a new trial was overruled and he has appealed in error to this court. The plaintiffs have also appealed and assigned as error the action of the court in directing a verdict in favor of the Board of Education and Greene County.

We think the learned trial judge was in error in directing a verdict in favor of the Board of Education but correctly sustained the motion of Greene County.

Under Code, Section 2495, County Boards of Education are authorized to provide for the transportation of children of school age who live more than two miles from the school building by the nearest accessible route, and such Boards are authorized to require the driver of any vehicle to make bond for the faithful performance of his duties. This includes a bond insuring against the consequences of the driver's negligence. Rogers v. Butler, 170 Tenn. 129, 92 S.W.2d 414.

It appears from the testimony of the Superintendent of Education of Greene County that the Board, as authorized, provided transportation for school children of the County and required the drivers of school busses to carry public liability insurance. There is filed as an exhibit to his testimony a policy insuring Frank Taylor and the Greene County Board of Education against liability in the operation of Taylor's bus limited, however, to $5,000 for injuries sustained by a single person. It does not appear that Greene County is so indemnified or that it has provided a fund for the payment of such claims. It filed a plea interposing the defense that, in the transportation of school children, it was engaged in a governmental function and that no judgment could be rendered against it. Under this plea we think the trial judge was correct in directing a verdict as to Greene County. Rogers v. Butler, supra.

The Circuit Judge assigned no reason for his action in sustaining the motion as to the Board of Education and only two reasons are advanced by its counsel as sustaining this action: (1) That Elnora Cobble, the injured child, lived less than two miles from the school she was attending and (2) that there is no proof that the particular bus which struck her was covered by the policy introduced in evidence.

As to the first question we are not cited to any stipulation in the policy tending to limit the Company's liability to children living more than two miles from the school building. On the contrary the coverage appears to be general in scope. We express no opinion as to whether the transportation of children living less than two miles is ultra vires or whether the insurer can ultimately defend upon this ground since it is not a party to this suit. If we sustain this defense in the present action against the Board the result would not inure to the benefit of the Board but to an insurer who has been paid a premium and seemingly assumed a risk covering a class of students not contemplated by the statute.

Where a policy has been issued and was in full force and effect when the injury occurred and the non-liability of the insurer is not clear from the record, we think the safer and better practice is to let the judgment stand and limit collection to the coverage afforded by the policy. Rogers v. Butler, supra. This is in line with the practice followed in Gamble v. Vanderbilt University, 138 Tenn. 616, 200 S.W. 510, L.R.A.1916C 875 and Hammond Post No. 3, American Legion v. Willis, 179 Tenn. 226, 165 S.W.2d 78, involving charitable institutions.

As to the second question, that the policy in evidence is not shown to cover the particular bus in question, the Board relies upon Taylor's testimony that he was operating more than one bus when the plaintiff was injured whereas only one policy was introduced in evidence and the proof fails to show that the bus which struck plaintiff is the one described in the policy. The proof, however, shows that the Board required school busses operating under contracts with it to carry indemnity insurance and whether this particular bus was covered by the policy introduced in evidence is immaterial on the issue of immunity from liability. It is true the proof does not show the amount of coverage afforded by the other policies but the amount of insurance becomes material only in the collection of the judgment rendered and we do not see that the name of the insurer is in any sense material.

For the reasons indicated we think the learned trial judge was in error in directing a verdict in favor of the Board of Education and plaintiffs' assignments complaining of this action are sustained in so far as that action rests upon the questions discussed. The Board's liability uder the facts of the case will be considered along with Taylor's assignment that the court erred in not directing a verdict in his favor at the conclusion of all the evidence.

On that question we think a case for the jury was clearly made out. According to the view of the evidence which seems to have been adopted by the jury and trial judge, the facts are as follows: Plaintiff Elnora Cobble was standing near the side of a hard surface road at the accustomed place preparatory to boarding the school bus to go home after school. There were a number of other children including her little brother five years of age. She was holding her brother's left hand in her right hand as the bus approached from her left. When the bus reached a point some thirty feet away the door, operated by Taylor by means of a hand lever, swung open and extended at right angles from the bus and was thus hanging over the shoulder when it came to the place where plaintiff was standing. There is credible proof that the bus failed to stop at the usual place. Plaintiff is unable to state definitely that the door struck her but her little brother did so testify and other witnesses say they saw the door coming at her and in position to strike her if it continued in its forward motion.

Under these circumstances, we think the jury might find that Taylor was not acting with the proper degree of care in the operation of the bus. If the door had been left shut or if the bus had stopped at the accustomed place the injury would not have occurred. We cannot say that the physical fact that Elnora was found under the bus is so inconsistent with the testimony of witnesses that their testimony must be rejected as a matter of law. If Elnora was standing near the side of the bus it is not difficult to see that she might have been thrown under it, especially in view of Taylor's testimony that he swerved to the left to avoid striking the children standing by the side of the pavement.

It is insisted that even if the proof is sufficient to show that the door struck plaintiff as charged in...