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Lawskills.com Georgia Caselaw
DISHINGER v. SUBURBAN COACH CO. et al.
33511.
Action for damages; from Fulton Superior Court-- Judge Andrews. January 25, 1951. (Application to Supreme Court for certiorari.)
SUTTON, C. J.
1. The Code, 68-311, provides: "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 and so plainly written or printed and so arranged as to be legible to persons approaching such buses, whether traveling in the same or opposite direction, or upon approaching said school busses from any direction . . ." The operation of a bus by the defendant coach company in transporting school children under the circumstances alleged in the petition without the bus being marked "school bus," as provided by the above Code section, was negligence per se; and the trial judge erred in sustaining the special demurrers of the coach company and its insurance carrier dealt with in division 1 of the opinion, infra, for the reasons therein stated. 2, 3, 4. The trial judge did not err in sustaining the special demurrers dealt with in the corresponding divisions of the opinion.
5. The trial court properly sustained the special demurrer of the insurance carrier on the ground of misjoinder for the reason stated in division 5 of the opinion, but erred in sustaining the special demurrer of the coach company in this respect, as said defendant could not take advantage of the question raised in this ground of demurrer.
6. The petition was not subject to general demurrer for the reasons stated in division 1 of the opinion, and the trial judge erred in sustaining the general demurrer and the special demurrers dealt with in said division of the opinion.
Mary Kae Dishinger, by her mother, Mrs. John S. Saylor as next friend, brought suit against Suburban Coach Company Inc., Carolina Casualty Insurance Company, its insurance carrier and Henry M. Riley, the petition as amended alleging the following: Suburban Coach Company Inc. is a common carrier operating under and by virtue of certificates of public convenience and necessity issued by the Georgia Public Service Commission. The defendants are liable to the plaintiff in the sum of $150,000 as shown hereinafter. The Suburban Coach Company Inc., as a part and parcel of its operation as a motor common carrier of passengers, operates motor buses used regularly in transporting school children to and from Cascade Heights School. Your petitioner was, on September 13, 1950, a regularly enrolled pupil in the second grade of such school, and on said date at about 4 p.m. finished her classes in the afternoon session of the school. At that time a bus of the Suburban Coach Company Inc. was parked on the school grounds, waiting for the plaintiff and other pupils to be conducted to the bus by the school officials, and at such time the plaintiff marched out of the school room with her class and onto the school bus with other pupils of the school. No persons other than school children were on the bus as passengers at the time the plaintiff entered it, and during all times hereinafter mentioned no person other than school pupils rode on the bus as a passenger. The said bus was not distinctly marked "school bus" on either the front, rear or sides thereof in any way whatsoever, and was not so marked with letters equal to or exceeding five (5) inches in length. There were no markings of any sort on the bus indicating that it was used. in transporting school children to and from school. The plaintiff became a passenger of the Suburban Coach Company Inc. After the bus was completely loaded with school children, including the plaintiff, the driver of the bus drove it along the streets in the residential community near the school, depositing school children at various places along the route. The plaintiff had ridden the bus prior to the date mentioned. She lives with her parents at 1800 Sandtown Road, S. W., which house is located at the southeast corner of the intersection of Sandtown Road and Westridge Road. At all times prior to the date hereinabove mentioned the route taken by the bus Was north on Westridge Road, so that when it stopped at the intersection of Westridge Road and Sandtown Road the plaintiff was able to disembark from the bus on the southeasterly corner of the said intersection on the side of the street adjacent to her home. On the day hereinabove mentioned the Suburban Coach Company Inc. changed the routing of the bus so that it traveled in a westerly direction on Sandtown Road, stopping at the intersection of it and Westridge Road at the northeasterly corner of the intersection, discharging its passengers on the northern side of Sandtown Road. This change in routing was made without notifying the plaintiff and her parents of the change. On the day mentioned, at or about 4:30, the bus arrived at the said intersection while traveling in a westerly direction on Sandtown Road, and was brought to a stop at the curb line of the northern side of Sandtown Road about fifteen (15) feet east of the northeast corner of the intersection. The bus doors were opened by the operator thereof, and the plaintiff was invited to disembark from the bus at that point. Approximately twelve (12) feet behind the bus an automobile, driven by C. J. Aycock, going in the same direction and on the same side of the road as the bus, had come to a stop. No other automobile traveling on Sandtown Road was visible to the plaintiff. She walked around the front of the bus and proceeded to cross Sandtown Road at the intersection.
At the said time the defendant Henry M. Riley was driving a 1946 Chevrolet Style Master Sedan automobile in a westerly direction on Sandtown Road, operating the said automobile at a high and excessive rate of speed, to wit, between 35 and 40 miles per hour. When he came in view of the bus it was parked and standing motionless at the said intersection, and the automobile of C. J. Aycock was standing motionless approximately 12 feet behind the bus, and approximately six young children had left the bus and were walking away from it in various directions clearly visible to the said defendant. When the said Riley approached the intersection a growth of shrubbery at the northeast corner of the intersection and the presence of the motionless vehicles described above made the intersection a blind corner, so that his vision along Westridge Road to the north was obstructed. When he approached the motionless vehicles he did not reduce his speed or sound his horn or give any other warning of his approach, but did turn his automobile sharply to the left so as to pass to the left of the motionless vehicles, and the plaintiff had traveled more than one-half the way across Sandtown Road, which road is approximately twenty-nine feet and four inches wide. When the said Riley turned his automobile as aforesaid he was approximately sixty feet east of the plaintiff, who was in the approximate center of Sandtown Road as above described. He did not attempt to slow his vehicle down or bring it to a stop until he was approximately twenty feet away from the plaintiff. The plaintiff sought to escape the oncoming automobile of the said Riley by running towards the south side of Sandtown. Road and reached a point less than 10 feet from the south. curb of the said street when she was suddenly and violently struck by the front center section of the said Riley's automobile. When he was approximately 20 feet away from the plaintiff he applied the brakes of his automobile to such an extent that the wheels of the automobile locked. Nevertheless, so great was the speed of the automobile that it continued in a westerly direction sliding and skidding on the motionless tires, and after sliding approximately 20 feet it was still going at such a great rate of speed that when the automobile struck the plaintiff it knocked her up into the air and approximately 30 feet in a westerly direction, where she fell with great force and violence against the paved surface of the said street. When the automobile so struck the plaintiff, both of ifs left wheels and both of its right wheels were on the south side of the center of Sandtown Road, which was the left side of the said road in the direction the automobile was traveling, and the right side of the automobile was approximately 10 feet south of the left side of the parked bus.
It was alleged that the defendant Suburban Coach Company Inc. was negligent:
(a) In failing to mark the bus "school bus" on the front, rear and sides thereof in letters five (5) inches or more in length so plainly written or printed and so arranged as to be legible to persons approaching the said bus traveling in the same direction as the bus, in violation of the law of the State of Georgia, which violation was negligence per se.
(b) In failing to mark the bus in any way whatsoever so as to advise persons approaching the bus from the rear that it was used for transporting school children.
(c) In changing the route taken by the bus so that the plaintiff was invited to disembark from the bus on the side of Sandtown Road opposite her place of residence.
(d) In changing the route taken by the bus so that the plaintiff was invited to disembark from the bus on the side of Sandtown Road opposite her place of residence without advising the plaintiff or her parents that such change was being made.
(e) In failing, by and through its driver, servant and agent, to keep a watch-out so as to observe the automobile of the defendant Riley approaching from the rear of the bus.
(f) In failing by and through its driver, servant and agent, to warn the plaintiff of the approaching automobile of the defendant Riley from the rear of the bus.
(g) In failing, by and through its driver, servant and agent, to furnish the plaintiff passenger a safe place to alight from the bus.
It was alleged that the defendant Riley was negligent in named particulars, and it was further alleged:
The said acts of negligence on the part of the said Riley and the Suburban Coach Company Inc., taken as a whole, singly or in any combination, were the concurrent and proximate cause of the striking of the plaintiff and of her injuries as described in the petition but not necessary to be here set forth, and the said injuries have forced the plaintiff to absent herself from school for an indefinite period of time, which loss of fine from school is irreplaceable and has seriously handicapped the plaintiff's educational progress. At the time of her described injuries the plaintiff was 7 years old and had a reasonable life expectancy of 50.8 years according to the Carlisle Mortality Tables. She sues for her pain, suffering and disability and lays her damages at $150,000. At all times hereinbefore mentioned the driver or operator of the said bus was acting for and in behalf of his employer, Suburban Coach Company Inc., and all of the acts of such operator were done in the prosecution and within the scope of the business of the principal, Suburban Coach Company Inc.
The exception here is to the judgment sustaining the joint demurrers of the Suburban Coach Company Inc., and the Carolina Casualty Insurance Company on general and special grounds dealt with in the following opinion.
(After stating the facts.) 1. Two special grounds of the demurrer attacked the allegations of the petition as amended and the specifications of negligence (a) and (b) as to the bus not being marked "school bus" and having no marking whatsoever thereon to indicate to persons approaching the bus that it was being used to transport school children, it being contended by the demurrants that such marking was not required as it was not a school bus in the sense contemplated by the Code, 68-311, upon which the plaintiff relies. That section is a codification of section 2 of the act of 1933 (Ga. L. 1933, p. 201), and reads as follows: "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 and so plainly written or printed and so arranged as to be legible to persons approaching such busses, whether traveling in the same or opposite direction, or upon approaching said school busses from any direction, and such school bus drivers shall stop said school busses on the right hand side of the road or street as close to the curb or edge of said road or street as is practicable." It is contended by counsel for the demurrants that the vehicle here involved was not a "school bus" and that what was meant by this Code section is the usual yellow school bus which we are accustomed to see on the highways, and not just some casual motor vehicle which might be temporarily employed in transporting a child or children to and from school but not dedicated exclusively to such use. It is contended by counsel for the plaintiff that any bus of the Suburban Coach Company Inc., which is appropriated and used in transporting school children to and from school as alleged in the petition, even for a limited period of time, becomes a "school bus" as contemplated by the act of 1933, supra (Code, 68-311). The petition alleges that the Suburban Coach Company Inc. operates motor busses used regularly in transporting school children to and from Cascade Heights School; that the plaintiff, on September 13, 1950, was a regularly enrolled pupil in the second grade of said school, and after she had finished her classes at about 4 p.m. on that day, together with other children from said school, she was conducted by the school officials to the defendant coach company's bus which was standing on the school grounds and entered the bus as a passenger; that no persons other than school children were on the bus as passengers at the time the plaintiff entered it and during all times referred to and mentioned in the petition; that said bus was not marked "school bus" on either the front, rear, or sides thereof in any way whatsoever, and was not marked with letters equal to or exceeding five inches in length, there being no marks of any sort on the bus to indicate that it was transporting school children; that after the bus was completely loaded with school children, including the plaintiff, on the schoolhouse grounds, the driver of the bus drove it along the streets in the residential community in the neighborhood of the school, depositing the school children at various places along the route; and that the plaintiff had ridden the bus prior to the date mentioned.
It does not appear from the petition who employed or paid the coach company for transporting the children to and from Cascade Heights School or that the busses so used were used solely for that purpose, that is, that they were not used at other times of the day to transport passengers other than school children. But it does appear from the petition that no persons other than school children were on the bus as passengers at the time the plaintiff entered it, and during all times mentioned in the petition no persons but school children were on the bus as passengers. In other words, the petition shows that the 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 68-311 (supra) and, in fact, was not marked in any way to 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. Of course, the purpose of marking such a conveyance as provided for by Code 68-311, supra, is for the protection of the children being transported therein and to safeguard them against danger from other motor vehicles and the traveling public. Had the bus here involved been marked "school bus," as required by law, this would have been notice to the defendant, Henry M. Riley, to stop, and the injury sustained by the plaintiff would probably not have occurred, certainly not, had he obeyed the law and stopped his car as required by Code 68-310. The contention of the Suburban Coach Company Inc. that the failure to so mark the bus had no causal connection-with.the injury sustained by the plaintiff, is without merit. The demurrers of the two defendants to paragraphs 11, 12, 40 (a), and 40 (b) are without merit, and the trial judge erred in sustaining said demurrers.
2. The bus company and its insurance carrier demurred specially to the allegations of the petition as to the change in routing of the bus without notice to the plaintiff or her parents and to the allegations of negligence, (c) and (d), in so doing, on the ground that such change had no causal connection with the plaintiff's injury. This objection is well taken. While the plaintiff's counsel argue in their brief that "but for" this change in routing the plaintiff would not have been injured, this contention is obviously a non sequitur. The change in routing may have furnished an occasion for injury, but was not itself the causative factor. The petition does not show any contract or obligation to discharge the plaintiff at the southeast corner of the intersection, or to notify her or her parents of any contemplated change in routing. It does not show that the driver on the occasion of the injury had ever deposited her there, or that he or his employer knew that she lived on the side of the street opposite the curb at which he lawfully stopped the bus. These special grounds of demurrer were properly sustained.
5. Another special ground of demurrer by the bus company and its insurance carrier attacks the petition as amended on the ground that there is a misjoinder of parties and causes of action as between the insurance carrier and the defendant Riley, in that the liability, if any, against the insurance carrier is ex contractu and the liability, if any, against Riley is ex delicto. Generally such actions can not be joined (Code, 3-113), but by statute (Ga. L. 1937, pp. 730, 731), amending the act of 1931 (Ga. L. 1931, pp. 199, 203), Code, Ann. Supp., 68-612, joinder of a motor common carrier with its surety or insurance carrier was authorized in an action for damages against the motor common carrier. The statute does not, however, authorize joinder between the insurance carrier and a third person with whom it is in no way connected. The court properly sustained the ground of special demurrer as respects the insurance carrier. Reeves v. McHan, 78 Ga. App. 305 (2) (50 S. E. 2d 787). As to the motor common carrier, Suburban Coach Company Inc., however, it can not be heard to complain of a misjoinder between others where it is not affected thereby. Lowery Lock Co. v. Wright, 154 Ga. 867 (1-c) (115 S. E. 801). The court, therefore, erred in sustaining this ground of demurrer as respects the motor common carrier, Suburban Coach Company Inc.
6. The petition was not subject to general demurrer for the reasons stated in division 1 of this opinion, and the trial judge erred in sustaining the general demurrer and the special demurrers dealt with in said division of the opinion.
FELTON, J., concurring specially. I concur in the judgment and the opinion but desire to make an additional observation. The motor carrier contends that there was no causal relation between the failure to mark the bus and the injuries because of the provisions of 68-303 (h). The answer to that contention is that Code 68-303 (h) and 68-311 are inconsistent and so much so that 68-303 (h) must be construed to apply to all passenger-carrying vehicles except those required to be marked as school busses, and if the bus had been marked, the defendant, Henry M. Riley, would have violated Code 68-310 if he did not stop, instead of 68-303 (h), because he would have then been charged with knoWledge of the presence of school children. The two sections cannot apply to school busses because 68-310 makes no provision under any circumstances for proceeding past the school bus while standing. So, the petition sets forth a cause of action against the motor carrier for negligence in failing to mark the bus as required by law as there is no presumption that Riley would have failed to stop for the bus because he did not comply with Code 68-303 (h).
Andrews, Nall & Sterne, contra.
Gambrell, Harlan & Barwick, M. Cook Barwick, Robert R. Richardson, for plaintiff in error.
DECIDED JULY 13, 1951. REHEARING DENIED JULY 25, 1951.
Saturday May 23 05:20 EDT


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