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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 only, aad the bus is owned by
the school district.
"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.'
Honorable John C. Marburger, Page 2
“(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 for 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
prescribe, not less than $~2,000.00 payable to
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-
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 forfeitedand the
amount and all right thereunder shall be
g8iP" by ELcourt 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,busdriver,
or ths trustees of a school district, to arrange or pro-
vide for s substitutedriver under anP oonditions,urgent
or otherwise. But there appearing in the statute, either
expressly or by implication,no denial or prohibitionof
the use by tbs aoutractlng parties of a substitutedriver,
we think it is competent for the parties involved to con-
tract in this regard and,be goverued thereby.
In this conneation,the copy of the bus driver's
contract submittedby you provides:
"It Is also agreed that this aontmct shall
not be transferredto a third party without
written permIssIonfrom the school board, and
that no driver shall be substituted,except la
urgent aaaea, without aonseut of the school
superintendent."
We construe,thlslanguage of the contract to mean
that a school bus driver may be substitutedfor the driver
under,contraat, only with the consent of the school super-
intendent,but that such substitutionmay 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" constitutesthe
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 substitutedfor the driver
under contract, even without consent of the achool'super-
~intendent,but in all other cases such substitutionmaj
be made by first procuring the consent of said superln-
,tendent.
It but remains to be determinedif this can-
tpnctusl provision governing the use of a substitutedriver
of s school bus, ouued and operated by Carmine Independent
school District, may, as a matter of law, be read into the
obligationand condition of the contract of suretyshipen-
tered Into by St. Paul-MercuryIndemnity C~mpnuy of St.
Honorable John C. Marburger, Page 4
Paul, so as to render said surety liable for any actionable
act or omission of a driver of said school bus, substituted
for 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.
7 Texas Jurisprudence, page 85. The instant cast is a
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
construction than bonds voluntarily entered into. 7 Texas
Jurisprudence, page 84-85; Farmers State Bank vs. Brazoria
countJ 275, s. w. 1103; Boyd VS. Genltempo 260 S. W. 934.
Honorable John C. Marburger, Page 5
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 to the ones executed in the instant case
under Article 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--
nominal obligess in such bonds. Draper et al vs. Robinson
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. P2d) 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-
duct of R. L. Draper. It did not purport to
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
different ground 7 and modified said judgment insofar as
same was rendered that plaintiff take nothing, remanding
the case ibr a new trial. The reversal and remand was
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
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. True, it afforded but scant protection
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
. Honorable J&n C. Marburger, Page 7
constructionaccorded 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 eubstitutedriver, resulting in
murY to a scholasticbeing traasportcd.
Moreovelb,as fully pointed out, the bus driver’s
contract expressly allows a substitutionof drivers, with
the consent of'the sohoel's superintendent,and, In m-gent
oases, contemplatessuch substitutionwithout the consent of
the said superintendent. Inasmuch as such oontractualpro-
vision is, under the authoritiesabove oited, read into the
bus driver's bond, as a matter ol'law, and, moreover, is
oxpresslj incorporatedinto 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 consequeaaesthereof.
We aooordinglyanswer Your first, second, and
fourth questions aff1rmativelYand Four third question la
the negative.
However, la view of the faot that Your inquiry is
prompted by a desire to see sohclast1ostransportedby
school bus, proteoted by a bended driver, we think it not
amiss to suggest to You and the ebhool authoritiesto
whose attention this opinion may be brought, that this
question should be reaevod from the field of construction
b;rrequiring 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 substitutedriver.
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.
/s/ Gerald C. Mann Assistant
ATTORNEY GENERAL OFTEXAS
APPROVED OPIHIOE COMLUIITTEE
BY BWB, CHAIRMAr?
Untitled Texas Attorney General Opinion
Combined Opinion