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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?
