Cotton States Mutual Insurance v. Keefe

112 S.E.2d 435, 100 Ga. App. 715, 1959 Ga. App. LEXIS 707

• Court: Court of Appeals of Georgia
• Decided: October 29, 1959
• Docket: 37802
• Status: Published

Opinions

Carlisle, Judge.

W. A. Keefe, Sr., brought suit in the City Court of Waycross against Cotton States Mutual Insurance Company, alleging that the defendant was liable to him under the provisions of a certain automobile liability insurance policy issued to the Ware County Board of Education, on account of a collision between a school bus operated by an agent, servant and employee of the board, which collision resulted from the alleged negligence of the school bus driver at the time and place of the collision. The defendant insurance company filed a general demurrer to the petition as amended, the trial judge overruled that demurrer, and the exception here is to that judgment. For the purpose of this decision it is sufficient to say with respect to the facts alleged as to the occurrence that they were sufficient to show that the plaintiff’s injuries and damage resulted from the negligence of the school bus driver. The sole question presented to this court by the exception to the overruling of the general demurrer relates to the right of the plaintiff, as a member of the general public, to recover from the school board’s insurance carrier by a direct suit on the policy without first obtaining a judgment in an action ex delicto against the school board.

The plaintiff alleged that the Ware County Board of Education, in compliance with the provisions of the act approved February 25, 1949 (Ga. L. 1949, pp. 1155, 1156; Code, Ann., §§ 32-429, 32-431), purchased from the defendant insurance company a policy of automobile insurance “insuring the members of the general public against personal injury or death or damage to property resulting from negligent operation of the school buses owned and operated for the said Ware County Board of Education," and that said policy of insurance covered the operation of the school bus and was in force and effect at the time of the collision in question. A copy of the policy was attached to and made a part of the petition. Section 1 and section 3 of that act read as follows:

“Section 1. The various school boards of the counties, cities and independent school systems employing school buses, are hereby authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from school against bodily injury or death at any time therefrom resulting from an accident or collision in which said -buses are involved. The amount of such insurance shall be within the discretion of the respective boards. . .

“Section 3. Be it further enacted, that such boards are hereby authorized to cause a provision to be inserted in said policies insuring the members of the general public against personal injury or death or damage to property resulting from the negligent operation of said buses. Nothing, however, in this law shall be construed as imposing legal liability upon such boards on account' of such accidents. Wherever an insurance company issues a policy containing such a provision, the company shall be estopped to deny its liability thereunder on account of the non-liability of said board.”

The plaintiff in error contends that the policy in question was issued by the company and procured by the board pursuant to the provisions of the act approved March 4, 1955 (Ga. L. 1955, pp. 448-450). Section 1 of this act reads as follows: “A municipal corporation, a county or any other political subdivision of the State is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting therefrom to any person, or for damage to property of any person, or both, arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of the State, under its management, control or supervision, whether in a governmental undertaking or not, and to pay premiums therefor.”

The 1955 act does not apply to school boards. A school board is not a political subdivision of this State, but is merely -an instrumentality through which the county acts in school matters. Mattox v. Bd. of Ed. of Liberty County, 148 Ca. 577, 580 (97 S. E. 532, 5 A.L.R. 568); Smith v. Bd. of Ed. of Washington County, 153 Ga. 758 (2) (113 S. E. 147); Burke v. Wheeler County, 54 Ga. App. 81, 86 (187 S. E. 246). In enacting the 1955 law, the general assembly must be presumed to have been familiar with the 1949 act relating to school boards and with the last stated and well recognized rule of law. Webb v. Alexander, 202 Ga. 436, 439 (1) (43 S. E. 2d 668). Had it been the intent of the General Assembly to make the 1955 act applicable to school boards, it would have been a simple matter for it to have done so by expressly so providing therein. Not having so provided, reasonable construction of the 1955 act leads to the conclusion that the legislature intended that the 1949 act would continue to apply to school boards, and that the 1955 act would merely be supplementary thereto in that it would extend the provisions of the law granting permission to municipalities, counties, and other political subdivisions to provide public liability insurance on motor vehicles operated by those units of government.

Since the 1955 act does not apply to school boards, the sole remaining question is whether or not an action may be maintained on an insurance policy issued to a school board directly against the insurance company without first suing the school board. This question, however, presents no problem, since it was decided by this court in Krasner v. Harper, 90 Ga. App. 128 (2), 136 (82 S. E. 2d 267), that such an action would lie. This is true in this case notwithstanding the terms of the policy requiring as a prerequisite to a suit against the company the determination of the school board’s liability either by suit or by agreement between the board, the company and the third party claimant. The policy also contains the provision that the terms of the policy in conflict with the statutes of the State wherein the policies issued are amended to conform to such statutes. The policy in this case was procured under the provisions of Section 3 of the 1949 act. As construed by this court in the Kramer case, that act authorizes suit by a third party claimant directly against the insurance carrier. That construction must prevail over any contrary provision of the policy. Great American Indemnity Co. v. Durham, 54 Ga. App. 353 (2) (187 S. E. 891). It follows that the suit in this case was maintainable against the insurance earner, and that the trial court did not err in overruling the general demurrers thereto.

This case was considered by the whole court pursuant to the provisions of the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed.

Gardner, P. J., Townsend, Quillian and Nichols, JJ., concur. Felton, C. J., dissents.