author: WARD, Justice.

text:
    MOBILE COUNTY MUTUAL INSURANCE COMPANY, Appellant/Appellee, v. Frank L. JEWELL, Jr., et ux., Appellees/Appellants.
    No. 6480.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 24, 1977.
    Appellant/Appellee’s Motion and Appellees/Appellants’ Motion for Rehearing Denied Sept. 21, 1977.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., W. 0. Shafer, Tryon D. Lewis, Odessa, for appellant/appellee.
    A. R. Archer, Jr., Monahans, Max E. Ramsey, Odessa, for appellees/appellants.
   OPINION

WARD, Justice.

Mr. and Mrs. Frank L. Jewell, Jr., sued their insurer, Mobile County Mutual Insurance Company, on a policy of insurance which covered the fire damage to their mobile home and contents and also sought additional recoveries under the provisions of the Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Comm.Code Ann. Secs. 17.41-63, and Article 21.21, Sec. 16 of the Texas Insurance Code. Trial was to a jury and judgment was entered for the Plaintiffs based on the verdict of the jury, and the Plaintiffs recovered their damages caused by the fire and trebled under the terms of the Consumer Protection Act, exemplary damages and attorney’s fees. We affirm in part and reverse and render the balance.

On December 21, 1972, the Plaintiffs bought a mobile home in Odessa for a price of $16,530.00, the purchase being financed through First Savings and Loan Association of San Angelo by a loan in excess of $13,-600.00. In accordance with the terms of the retail installment contract executed at the time by the Plaintiffs, they purchased and paid for a policy of insurance which was issued by the Defendant, Mobile County Mutual Insurance Company. The Plaintiffs then moved the mobile home to Monahans where it was occupied by the Plaintiffs’ daughter and her family. On September 12, 1973, the mobile home and its contents were seriously damaged by fire.

The loss was immediately reported to the Defendant’s home officer where it was referred to the Defendant’s office in Lubbock. The claim was then sent to adjusters in Odessa for handling who soon investigated the damage. These adjusters determined that the mobile home was reparable and prepared a proof of loss in the amount of $6,280.72, which, though objected to by the Plaintiffs, was signed by them and submitted to the Defendant’s office in November where it was in turn rejected. After considerable delay, a second proof of loss in the amount of $6,072.04 was submitted by the end of January, 1974, and was finally accepted by the insurer in February. However, by that time the mobile home had been repossessed by First Savings of San Angelo as no payments had been made on the indebtedness by the Plaintiffs since the fire loss. In February, a check in the amount of $6,072.04 was issued by the Defendant insurer and was sent to the lien-holder who applied it to the loan. Eventually, the mobile home was repaired and was in turn sold by the lienholder for $5,000.00. Thereafter, the Plaintiffs were sued by Mission Insurance Company, a guarantor of the loan, for the deficiency which then exceeded $10,000.00.

The Plaintiffs instituted the present suit against their insurer and, as far as material to this appeal, alleged that they were entitled to recover under the policy the full stated value of the mobile home of $16,-729.60 as the fire caused a total loss of the home; the loss of personal effects to the policy limit of $2,000.00; the loss of adjacent structures to the policy limit of $400.00; and living expenses incurred while the home was uninhabitable to the policy limit of $100.00 a month. In addition, the Plaintiffs alleged that the delaying tactics and certain false and misleading statements made by the Defendant that the proofs of loss were not binding and were merely to initiate the processing of the claim constituted false, misleading, and deceptive business practices as condemned by Art. 21.21, Sec. 16, Tex.Ins.Code Ann., and by Sec. 17.46, Tex.Bus. & Comm.Code Ann.; that the acts of the Defendant and the refusal to pay the claim violated Sections 17.46(b)(2), 17.46(b)(5), and 17.46(b)(12) of the Consumer Protection Act; that the acts were “unconscionable actions and breaches of warranty as condemned by Article 21.21, Section 16 of the Insurance Code of the State of Texas, and Article [Sec.] 17.46 of the Business and Commerce Code of the State of Texas;” and that in the handling of the claim, the Defendant acted fraudulently, wilfully, maliciously, and was grossly negligent, and thereby became liable for exemplary damages.

As to the special issues submitted, the jury determined that the fire to the mobile home caused a total loss; that the fair market value of the Plaintiffs’ personal effects that were destroyed was $3,420.00; that the fair market value of the adjacent structures that were destroyed was $550.00; that the Plaintiffs’ daughter and her husband were a part of the Plaintiffs’ mobile home household; and that the home after the fire was uninhabitable for 183 days. To Special Issue No. 8, which inquired if “the failure of Defendant to pay Plaintiffs’ claims under the policy in question constituted false, misleading or deceptive trade practices,” the jury answered “Yes.” To Special Issue No. 9, which inquired if “the failure of Defendant to pay Plaintiffs’ claims under the policy was an unconscionable action,” the jury answered “Yes.” To Special Issue No. 10, which inquired if the “failure of Defendant to pay Plaintiffs’ claims under the policy constituted a breach of warranty,” the jury answered “It constituted a breach of warranty.” To Special Issue No. 11, which inquired if “the manner in which Defendant handled Plaintiffs’ claims under the policy caused confusion or misunderstanding to Plaintiffs as to the approval or certification of the services to which Plaintiffs were entitled to under the policy,” the jury answered “It did cause confusion and misunderstanding.” To Special Issue No. 12, which inquired if the “Defendant represented to Plaintiffs that the policy in question had uses and benefits which it did not in fact have,” the jury answered “The Defendant did not so represent.” To Special Issue No. 13, which inquired if “Defendant represented to Plaintiff that the insurance policy conferred or involved rights, remedies or obligations which it did not have or involve,” the jury answered “Defendant did not so represent.” Regarding the question of exemplary damages, the jury determined that the Defendant acted with malice in failing to pay the Plaintiffs’ claims under the policy. To Special Issue No. 15, asking if the Defendant’s failure to pay Plaintiffs’ claims under the policy was for the purpose of defrauding the Plaintiffs, the jury answered “No.”

The jury then found that the Defendant’s failure to pay the Plaintiffs’ claims under the policy amounted to gross negligence; that the Plaintiffs were entitled to exemplary damages against the Defendant; and that the amount of such exemplary damages was $50,508.04. As to attorney’s fees, the jury determined that the Plaintiffs were entitled to such attorney’s fees and reasonable expenses incident to preparing the case for trial and for trying the case in the sum of $9,009.80; reasonable attorney’s fees for work in the event the cause should be appealed to the Court of Civil Appeals in the sum of $2,500.00; and reasonable attorney’s fees in the event the case should be further appealed to the Supreme Court in the sum of $1,500.00.

Based upon the jury verdict, judgment was entered that the Plaintiffs recover of the Defendant the following: (1) the sum of $10,657.56 for physical damage to the mobile home, said sum being the stated value of the policy less $6,072.04 paid by the Defendant to First Savings of San Angelo, one of the loss payees under the policy; (2) the sum of $923.70 as interest at the rate of 6% on the sum of $10,657.56 from December 12, 1973, until date of judgment; (3) the sum of $2,000.00 for physical damage to the Plaintiffs’ personal effects which were destroyed by fire; (4) the sum of $400.00 for physical damage to adjacent structures destroyed by fire; (5) the sum of $600.00 for additional living expenses for a period of 6 months; (6) the sum of $27,315.12 by virtue of the provisions of Art. 21.21, Sec. 16, Tex.Ins.Code Ann., which sum when added to those awarded under numbers (1), (3), (4) and (5) above would be three times the amount of actual damages awarded to the Plaintiffs; (7) the sum of $50,508.04 for exemplary damages; and (8) the sum of $13,009.80 for attorney’s fees provided that if Defendant did not appeal this cause, the judgment would be credited with $4,000.00, and that if the cause be appealed to the Court of Civil Appeals but then not carried to the Supreme Court, the judgment would be credited with only the sum of $1,500.00.

While the Appellant presents some 50 points on this appeal, our consideration is limited to those which adequately dispose of the case.

We first consider the Appellant’s point regarding a release wherein it is asserted that the trial Court should have granted its motion for instructed verdict as to the damages to the mobile home based upon its pleaded defense of release. The items of evidence relating to this claim were undisputed. The retail installment contract executed at the time of the purchase of the mobile home by the Plaintiff, Frank L. Jewell, Jr., provided that comprehensive coverage insurance was to be purchased and would be payable to the buyer and to the seller or seller’s assigns as their interests might appear. The buyer warranted, covenanted, and agreed to the following terms:

“7. Insurance — On all insurance poli-r cies required under this Contract as provided on front side hereon, BUYER hereby agrees as follows:
“c. All proceeds from required physical damage insurance, by whomsoever procured, shall be applied toward replacement or repair of MOBILE HOME or repayment of Total of Payments, at the option of SELLER.
⅜ * ⅜ ⅝ * *
“8. BUYER hereby directs any insurance company or any other person liable for loss or damage to MOBILE HOME to make payments directly to SELLER and BUYER hereby appoints SELLER as attorney in fact to endorse any draft or to execute any proofs or releases in the name of BUYER in connection with any insurance loss or claim. All payments so received by SELLER shall be applied on the indebtedness secured by this Contract until same is fully paid and the balance, if any, shall be delivered to BUYER.”

The contract provided that the words SELLER and BUYER, as used in the contract, include the heirs, executors and administrators, successors or assigns of those parties. This contract was assigned from the original seller to First Savings of San Angelo. Paragraph (8) thus grants to the seller or its assign the power to receive all money paid for any loss or damage to the mobile home, the power to execute drafts and releases, and the authority to apply said money to the indebtedness. (This contract is identical to the one discussed in Boyle, “Preservation of Claims and Defenses,” 8 St. Mary’s L.J. 679 (1976), where it is argued that it is not a negotiable instrument under the terms of the Texas Business and Commerce Code. See pages 694 and 695 where the retail installment contract is reproduced.)

The Mobile County Mutual Insurance Company policy insures Frank L. Jewell, Jr., as named insured and First Savings as lienholder, and provides that any loss under the policy shall be payable to them as their interests may appear at the time of loss. As pled and proven by the Appellant, the release was on the draft in the amount of $6,072.04, which was presented to and negotiated by mortgagee, First Savings of San Angelo. The face of the draft shows it to be a final settlement for physical damage sustained to the mortgaged property on September 12, 1973. The name of the insured is shown to be Frank Jewell and the policy number in question is set out. The following language is contained on the face of the draft:

“The endorsement of the Draft constitutes a release and receipt in full payment of the following claim or account.”
“In full and final satisfaction of Comp. & PE-37 & 32.”

On the reverse side of the draft, the following information is found:

“ENDORSEMENT
“The undersigned by the endorsement of this draft, acknowledges receipt and accepts same in full satisfaction and final discharge of any and all claims or demands against the insurance company herein named by reason of any damage, loss or bodily injury which has been or which hereafter may be claimed by the undersigned in consequence of any occurrence or loss on or about the Date of Loss recorded on the face of the draft.
“All rights of recovery from salvage or against those responsible for the said loss or damage are hereby assigned to the said company by the endorser, and the endorser hereby appoints the said company, or its attorney or representative, as its true and lawful attorney to execute or endorse any document required by the company in the prosecution of said rights.”

The draft was based on the proof of loss in the amount of $6,072.04, which was submitted at the end of January, 1974. The insurer pled the above facts fully and asserted that the endorsement constituted a release of all claims to the mobile home. No responsive pleadings to this defense were asserted by the Appellees.

In its motion for instructed verdict, the Appellant urged that the evidence was undisputed that First Savings of San Angelo had the power, right, and authority under the contract of sale to release the Appellant from further liability under the policy, at least insofar as damage to the mobile home was concerned; that the evidence was undisputed that the mortgagee did in fact so release this Defendant by executing the draft in question; and that the Defendant had no further liability to the Plaintiffs for such damages. The motion was overruled.

The execution and cashing of the draft constituted a valid release. The draft identified the type of coverage, the date of loss, the insured, the policy number, and the amount of settlement. It stated that it was in final settlement and that the endorsement of the draft constituted the full release of the claim. Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591 (1938); Fort Worth & D. C. Ry. Co. v. Larson, 169 S.W.2d 260 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w.o.m.); Aetna Casualty & Surety Company v. Carter, 373 S.W.2d 809 (Tex.Civ.App.—Eastland 1963, no writ).

As noted, First Savings of San Angelo was given the right to determine whether to repair or replace the mobile home, was made payee under the terms of the policy, and was appointed as attorney in fact to endorse any draft and execute releases in connection with any insurance loss or claim. Such provisions have been held to be valid and determinative of the rights of parties. Minniefield v. Consolidated Lloyds, 316 S.W.2d 428 (Tex.Civ.App.—Beaumont 1958, no writ). The validity of a similar power of attorney allowing the mortgagee to settle any and all insurance claims was recognized in a case where the insurance policy provided that the loss was payable to both mortgagor and mortgagee as their interests might appear. The Court held that the mortgagee acted within its rights in receiving the proceeds and that the insurance company was relieved of any further obligation to the mortgagor-owner by the payment to the mortgagee, even though the mortgagor had made a claim for itself and filed suit prior to the insurer’s settlement with the mortgagee. Nelson v. Consumers County Mutual Insurance Company, 326 S.W.2d 535 (Tex.Civ.App.—San Antonio 1959, writ dism’d).

Paraphrasing a statement made in Aetna Casualty & Surety Company v. Carter, supra at 810, this release and the authority to execute it in a manner binding on the Plaintiffs was pointed out by pleadings and evidence made at the trial, by motion for instructed verdict, and by motion for new trial, and despite all of this was wholly ignored. It was then and is now asserted as a bar to recovery for the damage to the mobile home and it now requires a reversal and rendition of the judgment to that extent. See Ellis v. Woods, 453 S.W.2d 509 (Tex.Civ.App.—El Paso 1970, no writ); 50 Tex.Jur.2d Release, Sec. 39, p. 57 (1969).

As seen, the Plaintiffs recovered for items over and beyond their mobile home loss, and the release covered only the mobile home loss. Thus, the Plaintiffs recovered $2,000.00 for loss of their personal effects, $400.00 for physical damage to the air conditioner and adjacent structures, and $600.00 for additional living expenses. The trial Court, reciting in its judgment that it was acting under the provisions of Art. 21.21, Sec. 16, Tex.Ins.Code Ann., trebled these damages in favor of the Plaintiffs and used them also as a partial basis for the award of the attorney’s fees.

By appropriate point, the Appellant states that Art. 21.21, Sec. 16, Tex.Ins.Code Ann., is not applicable to this insurer. The insurer is a county mutual insurance company and as such is controlled by Chapter 17 of the Insurance Code. Article 17.22 of the Insurance Code provides:

“County mutual insurance companies shall be exempt from the operation of all insurance laws of this State, except as in this Chapter specifically provided. In addition to such Articles as may be made to apply by other Articles of this Chapter, county mutual insurance companies shall not be exempt from and shall be subject to all the provisions of Article 2.04 and of Article 2.05 and of Article 2.08 and of Article 2.10 and of Article 5.12 and of Article 5.37 and of Article 5.38 and of Article 5.39 and of Article 5.40 and of Article 5.49 and of Article 21.28B and of Article 21.49 of this Code, and the provisions of Article 7064 of the Revised Civil Statutes of Texas.”

Neither Article 17.22, nor the other sections of Chapter 17 mentions Article 21.21 of the Insurance Code.

Section 16 of Article 21.21 of the Texas Insurance Code, upon which Appellees predicated the insurer’s liability for treble damages and attorney’s fees, was added to the Insurance Code as a part of House Bill No. 417 passed by the 1973 Legislature and effective May 21, 1973. The bulk of that particular bill added Chapter 17 to the Business and Commerce Code; that is, added to the Business and Commerce Code the Deceptive Trade Practices — Consumer Protection Act.

Thereafter, Article 17.22 of the Insurance Code, as amended and as reenacted, became effective August 27, 1973, some three months after Section 16 of Article 21.21 of the Insurance Code was added. Not only was it passed after Section 16, but the Legislature reenacted the exemption of Article 17.22. The import is clear that the Legislature did not intend to subject county mutual insurance companies to the provision of the Deceptive Trade Practices — Consumer Protection Act through the insurance laws. 53 Tex.Jur.2d Statutes, Secs. 180,183 (1964). The point is sustained and we hold that the provision of Art. 21.21, Sec. 16, Tex.Ins.Code Ann., was not applicable to a county mutual insurance company at the times in question.

Even if Art. 21.21, Sec. 16, Tex.Ins.Code Ann., applies to this Defendant, that Section would not afford the Plaintiffs a basis for the award of triple damages and attorney’s fees under the special issues submitted and answered. The special issues with which we are now concerned are numbered 8 through 13 inclusive, as previously set out.

The cause of action asserted by these Plaintiffs has its foundation in the peculiar cross-references made by the Consumer Protection Act and the Insurance Code. Section 17.50 of the Consumer Protection Act provides that:

“(a) A consumer may maintain an action if he has been adversely affected by any of the following:
“(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subchapter;
“(2) a failure by any person to comply with an express or implied warranty;
“(3) any unconscionable action or course of action by any person; or
“(4) the use or employment by any person of an act or practice in violation of Article 21.21, Texas Insurance Code, as amended, or rules or regulations issued by the State Board of Insurance under Article 21.21, Texas Insurance Code, as amended.”

In turn, Art. 21.21, Sec. 16, Tex.Ins.Code Ann., provides:

“Sec. 16. Relief Available to Injured Parties. — (a) Any person who has been injured by another’s engaging in any of the practices declared in Section 4 of this Article or in rules or regulations lawfully adopted by the Board under this Article to be unfair methods of competition and unfair and deceptive acts or practices in the business of insurance or in any practice defined by Section 17.46 of the Business & Commerce Code, as amended, as an unlawful deceptive trade practice may maintain an action against the company or companies engaging in such acts or practices.
“(b) In a suit filed under this section, any plaintiff who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended; * *

The Plaintiffs have not attempted to proceed under Section 4 of the last Article, or by any rule or regulation of the Insurance Board. They are thus proceeding under the protection afforded by that part which refers to “any practice defined by Section 17.46 of the Business & Commerce Code, as amended, as an unlawful deceptive trade practice.” From the wording of Section 16, the proscribed practice is one which is defined by Section 17.46 of the Consumer Protection Act. The cause of action is expressly limited to those practices so defined. Section 17.46(a) declares “false, misleading, or deceptive acts or practices” unlawful. But nowhere in either Section 17.46(a) or (b) is there a general or catch-all definition of false, misleading, or deceptive trade practices. It is only in Section 17.46(b) where any definition can be determined when it declares and defines that “false, misleading, or deceptive acts or practices” are deemed to include the 20 specific items on the laundry list. Although the laundry list is not all inclusive, it is the only list of definitions set out in Section 17.46.

In attempting to ascertain the intent of the Legislature as expressed in a statute, the words used in the statute must be read according to their natural and ordinary meaning. National Life Co. v. Stegall, 140 Tex. 554, 169 S.W.2d 155 (1943). The word “defined” means: “to state precisely the meaning of; to fix or determine with precision; to limit; to express with precision the essential ingredients of a term; to determine or set down the precise outlines of.” Webster’s New 20th Century Dictionary of the English Language, Unabridged, 2nd ed. (1967). The expressed intent of Section 16 then is to limit the cause of action to those acts and practices which are precisely fixed or outlined in Section 17.46 of the Consumer Protection Act, and only those 20 acts or practices set out in Section (b) thereof are so precisely fixed or outlined. The only reasonable explanation that therefore can be made is that it is only the 20 acts of the laundry list that are proscribed. Thus, there is no cause of action conferred by Section 16 of Article 21.21 for general “false, misleading, or deceptive trade practices,” nor for “unconscionable action” nor for a general “breach of warranty,” since none of those acts are defined. Additionally, as to “an unconscionable action” and a “breach of warranty,” those items are entirely foreign to Section 17.46. Those causes of action, while created by Sections 17.50(a)(2) and 17.50(a)(3) are determined by laws separate and apart from anything in the Consumer Protection Act. See Maxwell, “Public and Private Rights and Remedies,” 8 St. Mary’s L.J. 617 at 657-664 (1976). Therefore, Special Issues Nos. 8, 9, and 10 cannot form the basis of the judgment. They involve matters not “defined” as required by Section 16.

Special Issue No. 11 was an attempt to submit Section 17.46(b)(2) of the laundry list. Again, the manner in which the Defendant handled the Plaintiffs’ claim under the policy is entirely foreign to anything that has ever been related to the “confusion doctrine.” It has no application and is therefore valueless. See the discussions of the “confusion doctrine,” “Public and Private Rights and Remedies,” supra at 625, and Bragg, “Caveat Vendor: The Texas Deceptive Trade Practices and Consumer Protection Act,” 25 Baylor L.Rev. 425 at 428 (1973). This Section simply does not apply to the present situation which concerns the payment of a claim under a policy of insurance.

Special Issue No. 12, which purported to submit an inquiry under Section 17.46(b)(5), and Special Issue No. 13, which purported to submit an inquiry under Section 17.-46(b)(12), were both answered in favor of the Defendant. Thus, there was no basis for the award of triple damages and attorney’s fees under the Insurance Code and under its cross-reference back to the Consumer Protection Act.

We next consider the Defendant’s general point complaining of the award of exemplary damages, as there were neither pleadings, findings, nor evidence of any independent tort accompanying the breach of the contract. Both Acts previously discussed provide that the successful plaintiff may recover three times the amount of actual damages, court costs, and reasonable attorney’s fees. Exemplary damages are not mentioned, and their recovery can only be permitted if allowed under the general common law. This was a suit on an insurance policy — a contract, and generally, punitive damages are alien to the law of contracts. De Leon v. Aldrete, 398 S.W.2d 160 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r.e.). For this reason, the general rule is that punitive damages are not recoverable in actions for breach of ordinary contracts, even though the breach is brought about capriciously, intentionally, and with malice. Generally, it is only where the breach is accompanied by a distinct tort independent of the contract that punitive damages can be recovered. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629 (1943). A more in depth discussion is made in McDonough v. Zamora, 338 S.W.2d 507 (Tex.Civ.App.—San Antonio 1960, writ ref’d n.r.e.). Without elaborating further, the point is sustained and this suit upon the contract of insurance furnishes no basis for the punitive damages.

By its fifth point of error, the Defendant complains that an incorrect measure of damages was submitted in the issue inquiring as to the value of the Plaintiffs’ personal effects destroyed in the fire. The Court inquired as to the fair market value of the personal effects and this was objected to, the correct measure of damages being the value to the Plaintiffs. Policy provisions somewhat similar to the instant case were involved in Crisp v. Security National Insurance Company, 369 S.W.2d 326 (Tex.1963). There, the Court pointed out that the policy did not provide a contractual measure of damages of fair market value, and that the proper measure of damages that should be applied in the case of destruction of personal effects was the actual worth or value of the articles to the owner in the condition they were at the time of the fire, excluding any fanciful or sentimental consideration. Here, the jury found the sum of $3,420.00 damages, but the $2,000.00 policy ceiling applied. However, after reviewing the evidence, we are of the opinion that the error failed to cause the rendition of an improper judgment in the matter. Tex.R.Civ.P. 434. The point is overruled.

By its Point of Error No. VI, the Defendant complains that the definition of fair market value should have been submitted in connection with Special Issue No. 4 and not inserted under another issue not answered by the jury because it was conditionally submitted. The error, if any, was harmless. The point is overruled.

Finally, the Defendant attacks the finding of the jury that the Plaintiffs’ daughter and her husband were a part of the Plaintiffs’ mobile home household. The policy provided, to the extent of $100.00 a month, that in the event the mobile home was damaged or destroyed and was thereby rendered uninhabitable, the company would reimburse the insured for living “expenses incurred by the Named Insured for himself and members of his mobile home household while the home remains uninhabitable.” The Plaintiffs owned the mobile home; they allowed their son-in-law and daughter and children to live there rent-free; the Plaintiffs had their furniture in the mobile home and some of their clothes. Mrs. Jewell spent considerable time there, especially when the children were sick as well as on weekends when Mr. Jewell was there doing work around the premises. While it was their property, the Plaintiffs resided in another home in Midland. After the fire, the Plaintiffs incurred certain expenses in resettling their daughter and her husband into other living quarters.

The Insurance Company argues that the Jewells lived in Midland, had a home there, worked there, stayed there, and they still do; that the daughter and her family lived in Monahans, had the use of a mobile home there, worked there, stayed there, and they still do; and that there were two separate and distinct households. Reference is then made to automobile coverage policies which construe “household” to cover only those persons who dwell together as a family and who habitually reside under one roof and form one domestic circle as being within the term “household.” State Farm Mutual Automobile Insurance Company v. Walker, 334 S.W.2d 458 (Tex.Civ.App. — Fort Worth 1960, writ ref’d n.r.e.); Travelers Indemnity Company v. American Indemnity Company, 315 S.W.2d 677 (Tex.Civ.App.—Fort Worth 1958, no writ); 7 Blashfield, Auto Law 3rd Ed., Sec. 315.4 (1966). Those cases do not apply to the coverage under discussion.

The facts are undisputed, and to us the terms of the policy are clear. But even if there is an ambiguity, the construction will then be against the Company and liberally in favor of the policyholder and the result is the same. The mobile home belonged to the Plaintiffs — they were the insured. The mobile home was rendered uninhabitable and the coverage was for members of their “mobile home household.” Regardless of who the members of the household were, they were still members of their “mobile home household.” The facts being undisputed and coverage being afforded, the submission of the special issues regarding coverage became immaterial and all points regarding them are overruled.

We have sustained the Defendant’s points Nos. IV, XIA, XID, XIII, XIV, XVIII, XXII, XXIII, XXVII, and XXXIII. We overruled the Defendant’s points Nos. V. through X inclusive and the balance of the Defendant’s points are not reached.

That part of the judgment awarding to the Plaintiffs the sum of $2,000.00 for physical damage to Plaintiffs’ personal effects, the sum of $400.00 for physical damage to the air conditioner and adjacent structures, and the sum of $600.00 for additional living expenses with interest thereon from date of judgment is affirmed. In all other respects, the judgment for the Plaintiffs is reversed and judgment is here rendered that the Plaintiffs take nothing.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    Paige B. BAYOUD, Appellant, v. Howard Y. SIGLER, Appellee.
    No. 7994.
    Court of Civil Appeals of Texas.
    Aug. 29, 1977.
    Rehearing Denied Sept. 29, 1977.

      Lewis R. Sifford, L. W. Anderson, Ralph E. Hartman, Dallas, for appellant.
    Ronald R. Waldie, Dallas, for appellee.
   STEPHENSON, Justice.

This is a suit brought by Dr. Howard Sigler against Dr. Paige Bayoud for damages because of slander. Trial was by jury and judgment rendered for plaintiff on the verdict.

The jury findings, in essence, are: On two occasions defendant made the statement that plaintiff was an incompetent physician. That defendant also made these statements — that plaintiff was a liar, that plaintiff came to the hospital in a state of intoxication, that plaintiff was of low moral character. That such statements were not substantially true, were slanderous and were motivated by malice. That plaintiff’s actual damages were in the amount of $75,-000, and exemplary damages, $150,000.

Plaintiff remitted $100,000 of the exemplary damages which were in excess of his pleadings, and judgment was rendered in the amount of $125,000.

Defendant has twenty-three points of error attacking each of the jury findings that there is no evidence and insufficient evidence, and that such findings are contrary to the great weight and preponderance of the evidence. We pass upon the no evidence points by considering only the favorable evidence and we consider the entire record in passing upon the remaining points.

There are 654 pages in this statement of facts containing the testimony of 22 witnesses. As it occurs too frequently in sharply contested cases, the two versions of the episodes described by the witnesses are alarmingly dissimilar. Passing upon the credibility of the witnesses in order to determine the true facts must have been an exceedingly difficult task for the jury in this case. The animosity between the two medical doctors who were parties to this litigation is clearly shown throughout this record.

The testimony in the record supports plaintiff’s version as to the incidents which transpired. Plaintiff is a medical doctor specializing in orthopedic surgery and was associated with the Medical Center Hospital of Garland from 1959 until January, 1973. Defendant was chief of staff and co-owner of that hospital at all times material to this cause of action. Plaintiff treated defendant for five different injuries or illnesses. According to plaintiff, his troubles with defendant began when he refused to falsify a claim and perjure himself regarding an injury for which he treated defendant. They engaged in a confrontation in a hall in the hospital during the course of which defendant made one of the statements about plaintiff’s incompetence and about plaintiff being a liar. Such statements were made in the presence of one of plaintiff’s patients, ' her mother, and a friend. The second incident occurred during a dinner preceding a staff meeting in the hospital. In the presence of the several attending doctors, defendant made the second statement about plaintiff’s incompetence and also reflecting upon plaintiff’s honesty and integrity.

Defendant’s version, which was supported by witnesses called by him, was entirely different and would have supported jury findings to the contrary. However, there is evidence to support the findings as outlined above, and such findings are not clearly wrong or manifestly unjust. All of the evidentiary points of error are overruled.

Defendant has points of error that both the actual and exemplary damage findings are excessive and that plaintiff’s evidence shows no financial damage. The actual damage issue informed the jury it could consider mental anguish, humiliation and embarrassment together with damage to reputation and character as the elements of damages. The definition of “exemplary damages” in the charge was as follows:

“‘EXEMPLARY DAMAGES’ means an amount which may, in your discretion, award as an example to others and as a penalty or by way of punishment in addition to any amount which may have been found by you as actual damages.”

The law governing these points is well settled in this state. The term “slander” is applied to oral defamation only. Defamatory language may be actionable per se, that is, in itself, or it may be actionable per quod, that is, only an allegation and proof of special damages. In general, oral words are not actionable without proof of ’special damages, unless they impute the commission of a crime or affect a person injuriously in his office, profession or occupation. Bell Pub. Co. v. Garrett Engineering Co., 141 Tex. 51, 170 S.W.2d 197 (1943); Gulf Construction Company v. Mott, 442 S.W.2d 778 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ); Butler v. Central Bank & Trust Company, 458 S.W.2d 510 (Tex.Civ.App.—Dallas 1970, writ dism’d); Glenn v. Gidel, 496 S.W.2d 692 (Tex.Civ.App.—Amarillo 1973, no writ).

The statements by defendant relating to the incompetency of plaintiff as a physician were actionable per se. It is not necessary to prove actual damages where the words used are libelous per se. The law presumes actual damages. Hornby v. Hunter, 385 S.W.2d 473 (Tex.Civ.App.—Corpus Christi 1964, no writ); Davila v. Caller Times Publishing Company, 311 S.W.2d 945 (Tex.Civ.App.—San Antonio 1958, no writ); and Whalen v. Weaver, 464 S.W.2d 176 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n.r.e.).

This court is well aware that the amount of damages is peculiarly within the province of the jury and that such amount cannot be measured by any fixed rule or standard. This is especially true in the type of case we have before us with the elements of damages involved as set out above, such elements were mental anguish, humiliation and embarrassment, together with damage to reputation and character. We have carefully considered the evidence and exercised sound judicial judgment and discretion, as we are required to do under Tex.R.Civ.P. 439. We have come to the conclusion that $25,000 is reasonable compensation for plaintiff to recover for his actual damages, and $10,000 for exemplary damages.

We have carefully considered the remaining points of error and, finding no reversible error, they are overruled.

From our review of the record and the controlling authorities, we are of the opinion that the amount adjudged in favor of plaintiff as actual damages is excessive to the amount of $50,000, and that the amount adjudged in his favor as exemplary damages is excessive to the extent of $40,-000. Plaintiff is granted ten days from the date of this opinion within which to file remittitur of these amounts. If such remit-titur is filed, the judgment of the trial court will be reformed and affirmed. Otherwise, it will be reversed and the cause remanded.

Costs in the trial court are adjudged against defendant; costs on appeal are divided equally between the parties.

Affirmed on condition.


author: SHANNON, Justice.

text:
    George MacDONALD et al., Appellants, v. Joseph R. MOBLEY et ux., Appellees.
    No. 12554.
    Court of Civil Appeals of Texas, Austin.
    Sept. 7, 1977.
    Rehearing Denied Oct. 5, 1977.

      Ted Hollen, Austin, for appellants.
    Stephen D. Ramsey, Coffee, Goldston & Bradshaw, Austin, for appellees.
   SHANNON, Justice.

Appellees, Joseph R. Mobley and wife, Patricia Mobley, sued appellants, George MacDonald and Glyn Durham, in the district court of Travis County. Appellees sought damages for appellants’ alleged faulty construction of a house. After trial to a jury, the district court entered judgment for appellees for $11,400, and for $7,200 as attorney’s fees. We will affirm the judgment.

In their trial petition, appellees pleaded that appellants built a house on Foster Street in Austin and sold the house to ap-pellees on April 25,1973. Appellees alleged that appellants failed to provide the agreed quality and color of carpet in the house. Appellees also alleged that appellants failed to construct the house in a good and work- . manlike manner in some forty-seven respects, thereby breaching the implied warranty to construct the house in a good and workmanlike manner. Appellees claimed further that appellants breached their express warranty “of fitness, general condition and habitability of the house.”

Appellees averred that the express and implied warranties were “continuing” and that appellants had “repeatedly” breached the warranties. In this connection appel-lees claimed that appellants acknowledged many of the defects in construction and in the color and quality of the carpeting between May 21,1973, and November of 1973. Appellants continuously represented that the carpet defects and other defects would be corrected, but the corrections were never made. Appellees claimed that appellants’ repeated failures to comply with their “warranties, promises and representations” constituted a deceptive trade practice within the meaning of Tex.Bus. & Comm. Code Ann. § 17.41, et seq., and that appellees, as “consumers,” were entitled to maintain an action to recover damages pursuant to Tex. Bus. & Comm. Code Ann. § 17.50(a)(1), § 17.50(a)(2), and § 17.50(a)(3).

’ The charge contained twenty-seven special issues. The jury answered that appellants agreed to change the carpet and to install other carpet of one color and quality throughout the house, and that because of appellants’ failure to carry out the agreement, appellees were damaged in the sum of $1,500. The jury responded further that appellants after May 21, 1973, represented that the carpet would be changed and that carpet of one color and quality would be installed throughout the house and those representations were a deceptive trade practice which adversely affected appellees. The jury found that appellants failed to construct the house in a good and workmanlike manner in some thirty items and that the reasonable cost of remedying those defects was $2,300. Likewise, the jury answered that appellants after May 21, 1973, had represented that they would repair the defects and that their failure to carry through with their representations was a deceptive trade practice which adversely affected appellees.

The jury answered also that appellants expressly warranted that they would repair defects in materials and workmanship in the house for two years after the purchase and that appellants breached that express warranty. The jury failed to find that appellants committed fraud in connection with the sale of the house to appellees.

Appellants attack the judgment by many points of error, and no effort will be made in this opinion to discuss appellants’ points in the order of their appearance in appellants’ brief. It should also be observed, in the beginning, that the Supreme Court in Woods v. Littleton, 554 S.W.2d 662, Tex.Sup. 1977, recently announced principles of law adverse to many of appellants’ points concerning the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm. Code Ann. § 17.41, et seq.

Appellants maintain that there was no evidence, or alternatively insufficient evidence, to support the jury’s answers with respect to the agreement to change the carpet and to install other carpet of one color and quality throughout the house. We will overrule this contention inasmuch as there was evidence to support the jury’s answers.

Joseph Mobley testified that appellants agreed to change the carpeting in the living room and dining room to a carpeting of Mobley’s own choice which he could select from any store in Austin. Appellants were to pay for the carpeting which the Mobleys chose. The Mobleys testified further that appellant MacDonald later agreed with them that if the Mobleys would use carpeting already owned by appellants, then appellants would carpet the entire house. As it happened, appellants had an insufficient quantity of the same color and quality carpeting to carpet appellees’ entire house. As a result, when the Mobleys returned from the closing of the transaction on April 10, 1973, there was one color and quality of carpet in the living and dining room area; another color and quality carpeting in the master bedroom and hallway; and still another color and quality of carpeting in the two other bedrooms.

Appellants also complain that there was no evidence, or alternatively insufficient evidence, to support the jury’s answers that appellants had represented that the carpet would be changed and that carpet of one color and quality would be installed throughout the house, and that those representations were deceptive trade practices. Mrs. Mobley testified that she called appellant MacDonald many times in an effort to remedy the carpet imbroglio. Mob-ley swore that MacDonald, after May 21, 1973, continued to represent that the carpeting would be changed to conform to the parties’ agreement, but that MacDonald never did anything about it.

By several points appellants argue that there existed no implied warranty that the house was constructed in a good workmanlike manner and suitable for human habitation. This is so, appellants urge, by virtue of a printed disclaimer provision in the escrow sales contract. The escrow sales contract provided that appellant MacDonald agreed to convey to appellees the lot,

“Together with all rights pertaining thereto, including all improvements, fixtures, Venetian blinds, curtain and drapery rods, wall to wall carpeting, awnings, screens, shrubbery, mirrors affixed in place, attic fans, heating, lighting and plumbing fixtures, permanent air conditioning equipment, mail boxes, articles of personal property attached to the property, and owned by the seller, in the same condition as it is on this date, reasonable wear and tear excepted." (Emphasis supplied)

Appellants say that the phrase, “in the same condition as it is on this date,” excludes the existence of an express or an implied warranty. In this connection appellants observe, correctly, that for a decade principles of implied warranty have been applied in Texas to real estate sales involving new houses. Humber v. Morton, 426 S.W.2d 554 (Tex.1968), Moore v. Werner, 418 S.W.2d 918 (Tex.Civ.App.1967, no writ). It follows, appellants argue, that the provisions in the Texas Business and Commerce Code for exclusions or modifications of warranties should be applicable to real estate sales involving new houses. More specifically, appellants claim § 2.316(c)(1) authorizes the kind of disclaimer contained in the escrow sales contract entered into between them and appellees.

The applicable provisions of § 2.316 are set out below:

“(b) Subject to Subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’
“(c) Notwithstanding Subsection (b)
(1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty . . . ”

We believe § 2.316(c)(1) is applicable to the transaction between the parties. See Tibbits v. Openshaw, 18 Utah 2d 442, 425 P.2d 160 (1967).

We are also of the view that § 2.316(b) is equally applicable to the transaction. See the cases collected at 73 A.L.R.Srd 248 (1976). By the terms of § 2.316(b) in order to exclude or modify the implied warranty of fitness the exclusion or disclaimer must be in writing and must be conspicuous. A term is “conspicuous” when it is written so that a reasonable person against whom it is to operate should notice it. Tex.Bus. <& Comm. Code Ann. § 1.201(10). The disclaimer provision in the escrow sales contract in the case at bar was not conspicuous. The disclaimer was not printed in large or contrasting type or in any other manner to draw appellees’ attention to it.

Appellants claim that the court erred in submitting the special issues inquiring into appellants’ alleged violations of the Deceptive Trade Practices Act, because those violations occurred before the effective date of the Act. Appellants overlook the fact that the special issues in question limit the jury’s consideration to appellants’ acts that occurred after May 21, 1973, the effective date of the Deceptive Trade Practices Act. Although the sale which initiated the chain of events which led to the act complained of occurred prior to the effective date of the Deceptive Trade Practices Act, that fact does not preclude recovery under that Act for a deceptive practice occurring after the effective date of the Act, May 21, 1973. Woods v. Littleton, supra. There was much evidence that appellants, after May 21, 1973, represented to appellees that they would repair defects in the house and that appellants failed to do so.

By another point of error, appellants urge that the court erred in submitting the deceptive trade practices issues for the reason that the transaction between the Mob-leys and appellants was the sale of real estate, and the sale of real estate was not included as “goods” in the Deceptive Trade Practices Act until September 1,1975. The deceptive trade practices committed by appellants consisted of representations that appellants would change the carpet in the house and install carpet of one color and quality throughout the house and that appellants would repair the defects in the house. Appellants’ representations were no more a “sale of real estate” than were the efforts of the builder in Woods v. Littleton, supra, to repair the defective sewer system. The point is overruled.

We have discussed the important points in the case. The balance of the points of error and the cross-points have been considered, and as they have no merit, those points are overruled.

The judgment is affirmed.

Affirmed.


author: SPURLOCK, Justice.

text:
    CITY OF WICHITA FALLS, Appellant, v. Roger FOWLER, Appellee.
    No. 17696.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 8, 1977.

      H. P. Hodge, Jr., City Atty., Fillmore, Lambert, Farabee, Purtle & Lee, and Glynn R. Purtle, Wichita Falls, for appellant.
    Thomas A. Neely, Wichita Falls, for ap-pellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a judgment rendered by the trial court which set aside an order of the Wichita Falls Firemen’s and Policemen’s Civil Service Commission suspending a fireman from the fire department for a period of ninety days. The trial court held that (1) the fireman did not say the words or engage in the conduct which was the basis of his suspension; (2) that the order of the Civil Service Commission was not reasonably supported by substantial evidence; and (3) that Rule XIV, Section 45, Sub-paragraph (H), “conduct unbecoming to a gentleman and/or prejudicial to good order”, as contained in the Civil Service Rules of the City of Wichita Falls is so vague, general and indefinite as to be viola-tive of the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article 1, Section 19 of the Texas Constitution.

We reverse and render.

Roger Fowler was a fireman with the Wichita Falls Fire Department. While at work on or about September 19, 1974, he was given a letter from Fire Chief Hurshel Johnson notifying him that he was being indefinitely suspended from the fire department The suspension was the result of an incident that occurred at the fire station on September 16, 1974. Fowler timely requested a hearing before the Civil Service Commission. At that hearing, testimony was received from several witnesses. Later at the trial, all testimony presented at the hearing was accepted into evidence; no additional testimony was presented at the trial.

There were two versions of the September 16th incident presented to the Civil Service Commission for its consideration. In order to determine whether the order of the commission is supported by substantial evidence, we will relate both versions.

Durhl Caussey, a training specialist with the fire department, testified that about 5:15 p. m. on September 16,1974, he left his office at the Central Fire Station and proceeded toward his pickup truck. Upon approaching his truck, he saw Fireman Jerry Harris squat down behind the tailgate of the truck. He saw Harris taking his hand from the tailgate. There was a vile, four-letter word inscribed in the accumulated dirt on the truck’s tailgate. Then, Fowler walked up and uttered vile and abusive language to Caussey in a hostile tone of voice.

The other version of the incident was given by Fowler, Harris, and two other firemen. Fowler’s testimony is indicative of this second version. He testified that Harris, while going to his car, stopped behind Caussey’s pickup and called him (Fowler) to look at a four-letter word that had been inscribed in the accumulated dirt on the tailgate. Caussey approached and Fowler said: “Yeah, and you don’t know who did it, do you?” He denied making any vile and abusive statement to Caussey.

The record before this court indicates that there had been tremendous dissension between the civil service and noncivil service members of the fire department. For the details on this, see City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.).

The Civil Service Commission received the testimony, and it had the opportunity to observe the demeanor of the witnesses who testified. Thereupon, the commission suspended Fowler from the fire department for ninety days. Pursuant to art. 1269m § 18, Fowler sought review in the district court, which set aside the order of the Civil Service Commission.

In its first assigned point of error, the appellant City of Wichita Falls contends that “[t]he trial court erred in failing to find that there was substantial evidence in support of the order of the Wichita Falls Fireman’s (sic) and Policeman’s (sic) Civil Service Commission.”

We sustain this point of error.

In hearing this case, the trial judge was governed by the substantial evidence rule. In applying the substantial evidence rule, the trial court must consider all the evidence presented before it, but it does not pass upon the preponderance of the evidence. Firemen’s and Policemen’s Civil Serv. Com’n. v. Shaw, 306 S.W.2d 160, 163 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.). In determining whether the order of the commission is supported by substantial evidence,

[T]he court will not undertake to put itself in the position of the agency, and determine the wisdom or advisability of the particular ruling or order in question, but will sustain the action of the agency so long as its conclusions are reasonably supported by substantial evidence. This is so because, since the Legislature has seen fit to vest the authority to exercise sound judgment and discretion in the particular matter in the administrative agency, courts will not undertake to usurp the powers committed to the agency, and to exercise the agency’s judgment and discretion for it. . In such a case the issue is not whether or not the agency came to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. . . . The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside. (Emphasis added.) Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029-30 (1942).

Pursuant to the above standard, the trial court can set aside the order of the commission only if the evidence as a whole shows that reasonable minds could not have reached the conclusion that the commission must have reached. Applying this rule to the present case, this court holds that the evidence presented at the trial does not show that reasonable minds could not have reached the conclusion that the commission reached. Accordingly, we hold that the trial court erred in failing to find that there was substantial evidence in support of the order of the Civil Service Commission.

In its second point of error, the appellant City of Wichita Falls contends that “[t]he trial court erred in finding as a fact that the Plaintiff Roger Fowler did not say the words nor engage in the conduct stated as grounds for his indefinite suspension by the Fire Chief.”

We sustain appellant’s second point of error.

In an appeal from an order of a commission, the district judge is to determine whether the order is reasonably supported by substantial evidence, which is a question of law. State v. County Board of School Trustees, 334 S.W.2d 588, 590 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.). The role of the trial judge in this instance is not that of a factfinder, and we hold that the trial judge erred in casting himself in that role.

The City’s third point is that the trial court erred in holding that Civil Service Rule XIV, Section 45, Sub-Paragraph (H), which Fowler was found to have violated, is so vague, general and indefinite as to be violative of constitutional due process. The City argues that we have already resolved this issue in its favor in City of Wichita Falls v. Harris, supra.

Fowler’s counterpoint asserts that the trial court was correct in holding that the rule was so vague as to be violative of constitutional due process. Yet his argument is also based on the premise that this court has already disposed of the constitutionality of the rule itself. Fowler’s argument is that the Harris case reaffirmed the principle that civil service employees are entitled to due process and that the application of the rule in question, in light of the arbitrary and capricious action of Chief Johnson, was unconstitutional.

In the Harris case we sustained the City’s contention that Section 5 of Art. 1269m was not “unconstitutionally vague and general and invalid under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution.” Harris at 662. (Section 5 of Art. 1269m, in giving the Civil Service Commission the power to make rules prescribing what constitutes cause for removal or suspension, lists as one of the permissible grounds conduct “prejudicial to good order.”) In sustaining the City’s point in Harris, however, we held that under the facts of that case “the grounds for suspension given by the Fire Chief” were not unconstitutionally vague under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution. Id. at 663. We did not rule on the issue raised by the City in the instant case: whether the Civil Service Rule is so vague, general and indefinite as to be violative of constitutional due process.

In two recent opinions the United States Supreme Court has set forth the requirements of constitutional due process which must be met in order to defeat a challenge that a statute or administrative rule is “void for vagueness”: Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (military court-martial) and Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (removal of nonprobation-ary federal employee).

The language of the Civil Service Rule here in question (“conduct unbecoming to a gentlemen [sic] and/or prejudicial to good order”) is substantially similar to that of Articles 133 and 134 of the Uniform Code of Military Justice (“conduct unbecoming an officer and a gentleman” and “disorders and neglects to the prejudice of good order and discipline in the armed forces,” 10 U.S.C. Sections 933, 934). The United States Supreme Court upheld that language in Levy against a challenge that it was void for vagueness under the Due Process Clause of the Fifth Amendment. That case involved an Army physician who was convicted by a general court-martial as a result of public statements in which he said that he would refuse to serve in Viet Nam if ordered to do so and that others should do likewise.

The Court of Appeals held that Articles 133 and 134 were void for vagueness “as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians.” Sub nom. Levy v. Parker, 478 F.2d 772, 793 (3d Cir. 1973). The Supreme Court, reversing the Court of Appeals, quoted from Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974) concerning the “void-for-vagueness” challenge under the Due Process Clause of the Fifth Amendment:

The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement.’ Where a statute’s literal scope, unaided by a narrowing statute court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.

The court noted that Articles 133 and 134 have been construed by the United States Court of Military Appeals and other military authorities in a manner which partially narrowed their “otherwise broad scope” (417 U.S. at 754, 94 S.Ct. 2547) and that Levy’s conduct “fell within one of the examples of Art. 134 violations contained in the Manual for Courts-Martial” (417 U.S. at 741, 94 S.Ct. at 2554). After emphasizing the differences between military law and civilian law and between the customs of the communities, the court applied the same standard of review for a vagueness challenge as is applied to criminal statutes regulating economic affairs: that criminal responsibility should not attach “where one could not reasonably understand that his contemplated conduct is proscribed.” 417 U.S. at 757, 94 S.Ct. at 2562.

In Arnett a nonprobationary federal employee who had made certain public statements about his supervisor was removed for “such cause as will promote the efficiency of the service.” The court upheld the language of the statute involved “[b]ecause of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for ‘cause.’ ” 416 U.S. at 161, 94 S.Ct. at 1648. The court concluded that this standard was “essentially fair” and that requiring greater specificity was not practicable.

In another case involving the suspension of police officers, the court held similar language unconstitutionally vague. Bence v. Breir, 501 F.2d 1185 (7th Cir. 1974), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 821 (1975). The court attempted to distinguish Levy and Arnett on the grounds that there are no overriding military considerations which would justify the relaxation of the test for vagueness as there were in Levy, and because the statute in Arnett prescribed “an admittedly general standard ‘in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection.’ ” 501 F.2d at 1190. The court in Bence distinguished these two cases because “[d]ue process demands that each challenged rule be examined in its context to determine whether in fact further specificity would be feasible or practicable” and because in Bence there were no “concretiz-ing warnings (or limiting interpretation provided by an administrative manual)” to save a catch-all provision from a charge of vagueness. 501 F.2d at 1189, n. 2.

We find the rationales of Levy and Ar-nett compelling and decline to distinguish them on these grounds from the case at bar.

Firefighting is a profession “which demands a state of readiness, strict discipline, and a measure of obedience and valor not expected in ordinary callings.” Bolieu v. Firemen’s and Policemen’s Civil Service Com’n., 330 S.W.2d 234, 236 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.). This requires “the establishment of a broad range of proscribed conduct, without detailing every possible offense.” Milani v. Miller, 515 S.W.2d 412, 417 (Mo.1974). Moreover, we do not think it reasonable to conclude that Fowler did not understand that the use of abusive language in this instance was prohibited. It is well recognized that the use of abusive language may be prohibited under Civil Service Rules. Bryant v. City of San Antonio, 464 S.W.2d 888 (Tex.Civ.App.—San Antonio 1971, no writ) (use of abusive language toward fellow officer); Harless v. Bichsel, 327 S.W.2d 791 (Tex.Civ.App.—San Antonio 1959, no writ) (physical and verbal abuse of prisoner as “conduct prejudicial to good order” of police department); Reagan v. Bichsel, 284 S.W.2d 935 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.) (racial slurs as “conduct prejudicial to good order”).

Accordingly, we hold that under the facts of this case the rule is not unconstitutionally vague under the Due Process Clauses of the Fifth and Fourteenth Amendments and Art. 1, Section 19, of the Texas Constitution.

Nor do we think that the rule is unconstitutional as applied. The conduct in which the commission found Fowler engaged might well be punishable under Tex. Penal Code Ann. § 42.01(a)(1) which prohibits as “disorderly conduct” the use of “abusive, indecent, profane, or vulgar language in a public place [where] the language by its very utterance tends to incite an immediate ‘breach of the peace.’ ”

All the City’s points having been sustained, we reverse the judgment of the trial court and render judgment that the order of the Wichita Falls Firemen’s and Policemen’s Civil Service Commission be sustained.

      . All statutory references are to Tex.Rev.Civ.Stat.Ann.


text:
    Lucille C. KING et al., Appellants, v. BOARD OF TRUSTEES, MONAHANS-WICKETT-PYOTE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 6593.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 14, 1977.
    Rehearing Denied Oct. 5, 1977.

      Warren Burnett, Associated, Richard J. Clarkson, Odessa, for appellants.
    Kerr, Fitz-Gerald & Kerr, Ted M. Kerr, Midland, for appellee.
   OPINION

WARD, Justice.

Three school teachers, each under the age of 65 and each employed as non-tenured teachers, sued their School District because their annual employment contracts were not renewed. They sought damages and declaratory judgment on their allegations that the School District’s action was contrary to the provisions of Article 6252-14, Tex.Rev.Civ.Stat.Ann., which provided for their right to work until age 65, and contrary to the equal protection clauses of the State Constitution. The School District defended on the basis that it had adopted a uniform retirement policy which set a compulsory retirement age at less then 65 years and was authorized in its actions under Section 13.903 of the Texas Education Code. Trial was to the Court sitting without a jury and judgment was entered denying the school teachers any relief. We affirm.

The Monahans-Wickett-Pyote Independent School District had never adopted the optional continuing contract or tenure system for its teachers as provided by Section 13.101, et seq., Tex.Educ.Code Ann., but continued to employ its teachers by annual term contracts. On February 13, 1973, the Board of Trustees of the School District at a regular meeting of the Board duly adopted the retirement policy which became the subject of this controversy. The policy, according to the minutes of the meeting, is to the following effect:

“Retirement Age for all school employees of the Monahans-Wickett-Pyote Independent School District will be that employees are to retire at the end of the school term during which they reach or pass the age 64 for the 1972-73 term, 63 for the 1973-74 term, and 62 for the 1974-75 school term. August 1 of each year shall be the cut off date in determining the beginning and closing of a school term for retirement age.”

The retirement policy was adopted under the provisions of Section 13.903 of the Education Code which had been passed in 1969. That Section is to the following effect:

“The board of trustees of each public school district in Texas shall have full authority to establish a uniform retirement age for its professional and supportive personnel and notwithstanding any provision to the contrary. No district shall be required to retain any person in its employment after he reaches such prescribed age.”

The Defendant also relies upon Sections 23.26(b) and (d), Tex.Educ.Code Ann., which provide that the trustees shall have the exclusive power to manage and govern the public free schools of the district and that they may adopt such rules, regulations and by-laws as they may deem proper.

Various factors were considered by the Board of Trustees in their discussions leading to the adoption of the retirement policy. Increasing sick leave was found in teachers over the age of 62 with a consequent disruption of classroom progress even though substitute teachers might be used. There was a decline in. enrollment which necessitated the reduction of the number of staff, and this was a way to alleviate the situation. There was a problem present with continuing education among teachers as many things in education were changing and it was found that older teachers resisted these changes. Age 62 as a basis for retirement was taken from Social Security, and it was also considered that a teacher could be retired after the age of 60 without any penalty under the teachers’ retirement system.

Prior to the Superintendent’s recommendation to reemploy or not to reemploy any teacher, it was the policy of the District to have an evaluation of the teacher’s performance at least once annually. Certain remedial actions were sometimes suggested and sometimes termination was recommended on the basis of the evaluation. In regard to the Plaintiffs, there was no evidence of any evaluation made of them prior to the year that they were retired.

Each of the Plaintiffs knew of the policy in the Spring of 1973 and before they signed their contracts for the 1973-74 school year. These contracts were for one year and they provided that the teachers would be governed by the school laws of Texas and “such policies and regulations as may be determined by” the District. Each of the Plaintiffs had taught in the School District for more than 28 years and were competent teachers. They had never had any problems with their contract renewal before August of 1974. The Plaintiffs and representatives of the Texas State Teachers Association appeared before the School Board at a regular meeting on August 13, 1974; they protested the policy, requested new contracts, but they were afforded no relief. Each of the teachers had applied in May of 1974 for the statutory teachers’ retirement benefits and since June of 1974 each had received her respective retirement benefits in an amount set out in a stipulation of the parties made at the trial.

The issue in this case concerns Section 13.903 of the Education Code and whether or not it authorizes the retirement policy adopted by the School District. The Plaintiffs’ primary point is that Section 13.-903 and the retirement policy are in fatal conflict with Article 6252-14, Tex.Rev.Civ. Stat.Ann. That Statute was adopted in 1963 and it provides as follows:

“Section 1. It is hereby declared to be the policy of the State of Texas that no person shall be denied the right to work, to earn a living, and to support himself and his family solely because of age.
“Sec. 2. No agency, board, commission, department, or institution of the government of the State of Texas, nor any political subdivision of the State of Texas, shall establish a maximum age under sixty-five (65) years nor a minimum age over twenty-one (21) years for employment, nor shall any person who is a citizen of this State be denied employment by any such agency, board, commission, department or institution or any political subdivision of the State of Texas solely because of age * *

The Statute then specifically provides that the imposition of maximum age shall not apply to law enforcement peace officers, firefighters, or to institutions of higher education with established retirement programs.

The parties agree that school districts are creatures of the Legislature with only those powers and responsibilities which have been granted to them by that body. The legislative control is absolute and any degree of autonomy or local control is by grace of legislative direction and policy. The determination of employment practices of school districts is one area which has traditionally been left to local control. This has been modified in certain areas such as where the Legislature has established minimum qualifications for school teachers. See for instance cf. 13.034, Tex.Educ.Code Ann. Again, the Legislature has made provision for the optional adoption of the continuing contract or tenure system for teachers. Section 13.101 et seq., Tex.Educ.Code Ann.

Article 6252-14 expressed the public policy of the State when it became effective in 1963, although it expressly exempted the three groups mentioned from its coverage. The position of the Defendant is that another exemption was created v/hen Section 13.-903 was adopted in 1969. We agree as the intent of the Legislature seems clear from the face of the Statute where it gives the Board of Trustees full authority to establish a uniform retirement age “notwithstanding any provision to the contrary.” This is emphasized by the concluding sentence of the Statute that states that:

“ * * * No district shall be required to retain any person in its employment after he reaches such prescribed age.”

The plain meaning of the words should control. Section 2.01, Code Construction Act; State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 at 281 (1958).

Although we feel the plain meaning settled the matter, the School District does point out an additional reason for our holding. Article 6252-14 is a general Statute applicable to many State agencies, while Section 13.903 is a special Statute applicable only to retirement in school districts. If the two Statutes conflict, then Section 3.06 of the Code Construction Act would govern the decision. It provides that if a general provision conflicts with a special or local provision, they shall be construed if possible so that effect is given to both; and if the conflict is irreconcilable, the special Statute prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail. See 53 Tex.Jur.2d Statutes, See. 110 (1964). Here, the last Statute is the special one and prevails as an exception to the general provision and both continue to stand. Regardless of the approach taken, the end is the same. We hold that the mandatory retirement policy adopted by the Defendant/School District is valid and enforceable under the laws of this State.

Somewhat incidental to the above, the Plaintiffs attack the constitutionality of Article 13.908 claiming that there was nothing in the caption of the Act when it was originally passed as Article 2922-Ij in 1969 that suggested that it was limiting or creating an exception to Article 6252-14, and hence the Act was in violation of Article 3, Sec. 35, of the Texas Constitution. Regardless of any merit in this criticism as to the original caption, the same has been put to rest when the predecessor Statute to Section 13.903 was codified and reenacted as a part of the Education Code in 1971. See Tex.Const. art. 3, Sec. 43. The point is overruled.

Finally, the Plaintiffs say that both Section 13.903 and the school’s retirement policy are unconstitutional under Article 1, Sec. 3, of the Texas Constitution as these elderly Plaintiffs have become subjects of discriminatory legislation. They urge that any classification based solely on age is inherently suspect and requires a strict review of the classification by the Courts, and that, as a consequence, justification for such a classification is permitted only if the School Board is able to show a compelling interest justifying the classification. Cf. Mercer v. Board of Trustees, North Forest Independent School District, 538 S.W.2d 201 at 204 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.). The Plaintiffs further argue that if the age be a suspect classification, then the School District has failed in its burden of showing the compelling interest justifying the classification. In other words, the Plaintiffs urge that we proceed to test this legislation as legislation is presently tested by the United States Supreme Court when it applies the equal protection clause.

While we are cited to no Texas authority directly in point, we have been referred to Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). There, the United States Supreme Court tested a Massachusetts statute providing for mandatory retirement of uniformed police officers at age 50. It held that the statute did not deny equal protection in violation of the Fourteenth Amendment of the United States Constitution. It further held that the strict scrutiny approach of the legislative classification was not required since the legislative classification interfered with neither fundamental rights nor did it create a “suspect classification.” The Court pointed out that it had consistently applied a standard less than that of strict scrutiny to state legislation restricting the availability of employment opportunities. Further, it held that the classification of uniformed state police officers over 50 did not constitute a suspect class for purposes of equal protection analysis, and that a classification of the aged only required an approach under the rational-basis standard.

We adopt that treatment in this test under the State Constitution and afford the age classification the test under the rational-basis standard. That being the case, the statutory direction and the School Board’s plan are not to be set aside since there are facts and reasons present which reasonably justify their respective adoptions. Texas Woman’s University v. Chayklintaste, 530 S.W.2d 927 (Tex.1975).

We have considered all of the Appellants’ points and they are overruled. The judgment of the trial Court is affirmed.


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    E. R. REECE, Appellant, v. The FIRST STATE BANK OF DENTON, Texas, Appellee.
    No. 17908.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 15, 1977.
    Rehearing Denied Oct. 13, 1977.
    L. Royce Coleman, Jr., Denton, for appellant.
    Kelsey & Wood and D. Michael Gregory, Denton, for appellee.
   OPINION

SPURLOCK, Justice.

This is a case involving a continuing guaranty contract. The First State Bank of Denton, Texas, brought suit against E. R. Reece to enforce a continuing guaranty contract that he had signed to enable Den-ton County Tractor Company, Inc. to obtain needed financing. The trial court rendered judgment for the bank for $1871.81, which was the amount due on a delinquent corporate note, and for $710.41 as attorney’s fees.

We affirm.

Reece was a stockholder and vice-president in the now defunct Denton County Tractor Company, Inc. Shortly after commencing business, the tractor company needed outside financing and sought funds from the bank for that purpose. The bank agreed to extend a line of credit to the tractor company in the amount of $25,-000.00, if Reece would execute a continuing guaranty contract. There is no dispute that Reece executed this contract. Pursuant to the terms of this document, the bank advanced funds to the tractor company which were repaid.

The board of directors of the tractor company passed a corporate resolution authorizing three of its corporate officers including Reece, its vice-president, to secure loans from the bank on its behalf. A promissory note for $8680.32, purportedly signed by Reece on behalf of the tractor company, was made payable to the bank for the purchase of the two corporate automobiles. The bank did supply the $8680.32 and the tractor company received the benefit thereof. Reece denies signing the note. This promissory note became delinquent. The bank foreclosed on the two automobiles, sold them, and credited the proceeds of the sale to the balance due on the promissory note. A deficiency on the note resulted from this foreclosure and sale.

By his first point of error, Reece contends that the trial court erred in rendering judgment for the bank, because the phrase “at my request,” which is contained in the guaranty, allegedly means that additional funds must be requested by the guarantor. By his second point of error, he contends that the trial court erred in rendering judgment for the bank because the evidence shows that both parties allegedly intended that Reece was to request additional funds pursuant to the guaranty.

The controversy centers around the meaning of the phrase “at my request” contained in the guaranty contract; the disputed phrase appears in the first sentence of that document. It reads as follows:

“In Consideration of the First State Bank of Denton, Texas at my request, giving or extending terms of credit to Denton County Tractor Co. of Denton, Texas, hereinafter called ‘debtor,’ I hereby give this continuing guaranty to the First State Bank, Denton, Texas, hereinafter called ‘Bank,’ its transferees or assigns, for the payment in full, together with all interest, attorney fees, other fees, and charges of whatsoever nature and kind, of any indebtedness, direct or contingent whether secured or unsecured, of said debtor to said Bank up to the amount of Twenty-five thousand and no/100 Dollars ($25,000.00), whether due or to become due, and whether now existing or hereafter arising. . . . ” (Emphasis added.)

The bank contends that the guaranty contract signed by Reece is absolute and unconditional and places the primary obligation for payment upon Reece for any indebtedness of the tractor company to the bank, up to $25,000.00. In response to Reece’s contention that he had to approve each advance of funds, the bank points out that the continuing guaranty contract expressly provides to the contrary. On this point, the contract provides:

“I do furthermore bind and obligate myself, my heirs and assigns, in solido with said debtor, for payment of the said indebtedness precisely as if the same had been contracted and was due or owing by me in person, hereby agreeing to and binding myself, my heirs and assigns, by all terms and conditions contained in any note or notes signed or to be signed by said debtor, making myself a party thereto; hereby waiving all notice including notice of any such indebtedness and of demand, presentment, protest or notice of demand or non-payment and of notice of any act to establish the liability of any party or any commercial or other paper, indebtedness or obligation covered by this guaranty; I do further waive all notice and all pleas of discussion and division and I agree upon demand at any time, to pay to said Bank, its transferees, or assigns, the full amount of said indebtedness and the other items set forth above, up to the amount of this guaranty, . (Emphasis added.)

In addition to this waiver of notice contained in the guaranty contract itself, there is case law which rebuts Reece’s contention that his obligation under the continuing guaranty contract arose only if he requested a particular advance of funds. In fact, the accepted legal meaning of “continuing guaranty” is contrary to Reece’s contention. In Blount v. Westinghouse Credit Corporation, 432 S.W.2d 549, 553 (Tex.Civ.App.—Dallas 1968, no writ), the court quoted with approval the following C.J.S. definition of continuing guaranty:

“A continuing guaranty is one which is not limited to a single transaction, but which contemplates a future course of dealing, covering a series of transactions, generally for an indefinite time or until revoked. It is prospective in its operation and is generally intended to provide security with respect to future transactions, within certain limits, and contemplates a succession of liabilities, for which, as they accrue, the guarantor becomes liable.” 38 C.J.S. Guaranty § 7 at 1142. (Emphasis added.)

Also see McGhee v. Wynnewood State Bank, 297 S.W.2d 876 (Tex.Civ.App.—Dallas 1956, writ ref’d n.r.e.) and Pittinger v. Southwestern Paper Co., 151 S.W.2d 922 (Tex.Civ.App.—Fort Worth 1941, no writ) for other cases dealing with a continuing guaranty.

In the present case, Reece has denied that he signed the note on behalf of the corporation, but he has admitted that he signed the continuing guaranty. For purposes of this appeal, the bank’s counsel has conceded that Reece’s signature on the corporate note is a forgery; however, the proceeds of the note were used to purchase two automobiles, and title to these automobiles was taken in the name of the corporation. This taking of title in the name of the tractor company increased the assets of the corporation. What effect, if any, does the forgery of the maker’s signature on a corporate note have on the liability of the guarantor? This precise question has been carefully considered and answered by the Texas Supreme Court in Universal Metals & Machinery, Inc. v. Bohart, 539 S.W.2d 874 (Tex.1976). On this point, the court wrote:

“The guarantor, who contracted as a primary, absolute, unconditional obligor, is not freed from liability because of the forged signature of the maker.” Id. at 877.

It is apparent to the court that Reece’s liability on the guaranty contract in no way depends upon whether the signature on the promissory note was a forgery. We emphasize that in this case, Reece is not being held liable because of his alleged signature on the note, but on the guaranty contract that he signed.

We have carefully considered Reece’s points of error, and each is overruled.

The judgment of the trial court is affirmed.


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    Ralph Wayne THEIS, Appellant, v. CITY OF SAN ANTONIO, acting by and through its Water Works Board of Trustees of San Antonio, Appellee.
    No. 6634.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 21, 1977.

      James G. Murry, San Antonio, for appellant.
    James M. Parker, City Atty., San Antonio, Sawtelle, Goode, Davidson & Troilo, Robert Sawtelle, John W. Davidson, Arthur C. Troilo, Jr., Richard A. Flume, Jr., San Antonio, for appellee.
   OPINION

WARD, Justice.

This appeal complains of a judgment granting the Defendant’s Plea in Abatement and dismissing the cause of action because a prior suit between the same parties had been tried' and was still pending upon appeal. We affirm.

The facts are not in dispute. Ralph Wayne Theis was employed as Supervisor of the Construction and Inspection Division of the Water Works of the City of San Antonio. He was suspended from that position without pay or other benefits on November 19, 1975, and in January, 1976, he filed suit against the City of San Antonio in the 57th District Court, Cause No. 76CI-678, seeking reinstatement, injunctive relief, and damages because of alleged wrongful suspension by his employer. The Plaintiff sought a temporary injunction and at that hearing the City agreed to reinstate him as an employee but to continue him on a suspension basis until the trial of that cause on its merits. In addition, they would pay him his salary and benefits from the date of his suspension in November, 1975. The offer of the City was accepted and, pursuant thereto, an agreed order granting a temporary injunction was entered. The temporary injunction order included the following:

“ * * * both Plaintiff and Defendant, announced to the Court that an agreement had been reached by and between the parties that an order be entered herein whereby the Plaintiff, Ralph Wayne Theis, shall be reinstated as an employee of Defendant but continued on suspension until a trial of this cause on its merits * * *

At that time, the case was specially set for trial on its merits for March 1, 1976. That case proceeded to trial and, on April 2,1976, a final judgment was entered for Mr. Theis for damages and for a permanent injunction whereunder he was restored to his position at the Water Works. Appeal was duly perfected by the City and that case is now on appeal pending in the Court of Civil Appeals at Tyler, the case having been transferred from San Antonio to Tyler under an order for equalization of dockets. On May 27, 1976, writ of supersedeas was issued by the District Clerk’s Office of Be-xar County and the District Court judgment was suspended and superseded pending the outcome of that appeal.

Following the issuance of the writ of supersedeas, the City of San Antonio suspended all pay and other benefits of employment to Mr. Theis and, on August 27, 1976, he filed his second suit against the City of San Antonio in the 150th District Court, Cause- No. 76CI-11245, alleging the facts concerning his employment and discharge, and alleging that at the January, 1976, hearing on the temporary injunction he had entered into a contract with the City whereby he would be reinstated as an employee, remain on a suspension basis, and receive his back pay and allowances up to the final disposition of that cause on its merits. A copy of the order of January 29th was incorporated in these pleadings, and he alleged that the subsequent refusal to pay constituted a breach of his contract and a wrongful refusal to obey the temporary injunction which had issued and which would be in effect until “a final disposition of this cause on its merits.” He asked for a declaratory judgment that the Court order the City to comply with the contract agreement regarding the temporary injunction, and that the City continue to pay him all wages and other benefits until the final disposition of that original cause on its merits.

Thereafter, in this second suit, the City of San Antonio filed a Plea in Abatement setting out the facts surrounding the first suit, the prior judgment, and the pendency of that suit upon appeal. The 150th District Court granted the Plea in Abatement and dismissed the second suit. The Plaintiff has duly perfected his appeal from the order of dismissal, and that case has been transferred from the Court of Civil Appeals sitting in San Antonio to this Court by order of the Supreme Court in equalizing dockets.

It is Mr. Theis’ position as Appellant that there was an oral contract made between the parties at the time of the temporary injunction hearing in January, 1976, whereby he would be continued as a suspended employee with pay and benefits until the final disposition of the first suit; and that it is the maintenance of that status quo as a suspended employee that is now involved, which is a distinct and separate cause of action. We do not agree.

In the first place, the agreement made was an agreement for issuance of the temporary injunction. That agreement was carried out and the temporary injunction was issued. The order granting the temporary injunction was dissolved when the trial Court in the first suit entered its final judgment which included all the permanent injunctive relief sought by the Appellant. The weight of authority in this State is to the effect that a temporary injunction ceases to exist by operation of law when a final judgment is entered granting the permanent injunctive relief. Even the attempt by a trial judge to extend the interlocutory injunction past the final judgment is void and of no force and effect. Upon the granting of a permanent injunction, the appealing party then has the statutory right to supersede the judgment, if he prosecutes an appeal. Texas Liquor Control Board v. Jones, 378 S.W.2d 898 (Tex.Civ.App.—Austin 1964, no writ); City of Corpus Christi v. Cartwright, 281 S.W.2d 343 (Tex.Civ.App.—San Antonio 1955, no writ). The final judgment dissolves the temporary injunction, but the filing of a supersedeas does not revive the temporary injunction.

Of more importance is that there has been filed a second suit between the same parties on the same subject matter and an attempt made to relitigate identical matters, while an appeal of the first suit was still pending. The Plaintiff in the second suit is merely attempting to invoke the jurisdiction of the trial Court to determine issues that were then before the 12th Court of Civil Appeals of Tyler. When the Appellee, through its Plea in Abatement, called the trial Court’s attention to the pendency of the prior suit, the trial Court had no other alternative but to dismiss the suit. Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974). The doctrine of res judicata controlled. South Padre Development Company v. Texas Commerce Bank National Association, 538 S.W.2d 475 (Tex.Civ.App.—Corpus Christi 1976, no writ). The fact that the Appellant is seeking a declaratory judgment does not aid him in his attempt to maintain the second suit. Texas Liquor Control Board v. Canyon Creek Land Corporation, 456 S.W.2d 891 (Tex.1970); Eisenhauer v. Williams, 537 S.W.2d 336 (Tex.Civ.App.—San Antonio 1976, no writ); Pickens v. Hidalgo County Water Control and Improvement District Number Sixteen, 284 S.W.2d 784 (Tex.Civ.App.—San Antonio 1955, no writ).

The judgment of the trial Court is affirmed.