author: MASSEY, Chief Justice.

text:
    TOWN OF COLLEYVILLE, Appellant, v. The STATE of Texas ex rel. CITY OF HURST, Texas, Appellee.
    No. 17781.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 6, 1977.
    Rehearing Denied Feb. 18, 1977.
    Second Rehearing Denied March 18, 1977.

      Wilbur T. Knape, Bedford, for appellant.
    George A. Staples, Jr., Hurst, Tim Curry, Dist. Atty., Tarrant County, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

By quo warranto action the State of Texas, on relation of the City of Hurst, Texas, attacked certain annexation ordinances of the Town of Colleyville.

Following trial several of the ordinances were invalidated and declared void by the judgment. Several other ordinances were declared to be valid.

In respect to the judgment invalidating its ordinances Colleyville appealed. In respect to those which the trial court refused to declare void and which were “validated” the State, Ex Rel. City of Hurst, appealed.

We affirm.

To have all the facts and circumstances perfectly clear would necessitate review of previous opinions of this court, as follows:

State ex rel. Ratcliff v. City of Hurst, 458 S.W.2d 696 (Tex.Civ.App., Ft. Worth, 1970, writ ref., n. r. e.);
City of Hurst v. City of Colleyville, 501 S.W.2d 140 (Tex.Civ.App., Ft. Worth, 1973, writ ref., n. r. e.);
State ex rel. Colleyville v. City of Hurst, 519 S.W.2d 698 (Tex.Civ.App., Ft. Worth, 1975, writ ref., n. r. e.);
State ex rel. City of Colleyville v. City of Hurst, 521 S.W.2d 727 (Tex.Civ.App., Ft. Worth, 1975, writ ref., n. r. e.)
(That Colleyville has been referred to at different times as “town” and as “city” may be disregarded.)

The Colleyville Appeal

Pertinent circumstances are these: Col-leyville and Hurst were involved in dispute concerning their conflicting extraterritorial rights. April 8, 1971, Hurst filed suit in District Court to have the court declare its exclusive extraterritorial rights within the disputed area by provisions of pertinent portion of Vernon’s Ann.Tex.Civ.St., Art. 970a, Texas Municipal Annexation Act. Colleyville filed similar suit to have its rights adjudicated. The cases were consolidated. In resolution of the questions posed there was trial resulting in judgment which this Court reversed and remanded for limited action in retrial (501 S.W.2d 140), and there was such retrial, with judgment anew which apportioned to each city its exclusive extraterritorial jurisdiction. This second judgment was affirmed on appeal (521 S.W.2d 727).

In the style of the cases by the Southwestern Reporter one of them appears to have been a quo warranto suit and the other a suit in which the State was not a party. However, it was the identical case upon which we wrote in both instances and the reader may forget the fact that there ever had been any presence of the State of Texas.

On June 4,1973, the instant quo warranto action was filed, on the relation of Hurst, to invalidate annexations by Colleyville of territory within that part of the disputed area apportioned by the trial court in the judgment which was affirmed at 521 S.W.2d 727. The State, Ex Rel. Hurst, prevailed as to all annexations of Colleyville lying within the area apportioned to Hurst, and rendered judgment invalidating these annexations.

Colleyville presents vigorous argument to the effect that the judgment of apportionment was utterly void and subject to collateral attack, and that it should be so held by this Court.

The general rule is that a judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except for fraud in its procurement. National Surety Co. v. Hemphill, 18 S.W.2d 921 (Tex.Civ.App., El Paso, 1929, error refused). Bee also 24A Tex.D. “Judgment”, XI(A) “Judgments Impeachable Collaterally”, Key No. 470, “Judgments presumed valid in general”. There is nothing presented justifying departure from the general rule. The rule requires that we affirm the judgment of the trial court where it has invalidated annexation ordinances of Colleyville.

The State Ex Rel. Hurst Appeal

The annexation ordinances of Colleyville which the trial court refused to set aside permitted annexations by which Colleyville took land within the area of its extraterritorial jurisdiction conflicting or “overlapping” with that of the City of North Rich-land Hills. The State alleged that such was the case in its quo warranto proceeding.

The land claimed by Colleyville under its ordinances was the lesser portion of a greater area, as to the whole of which it could have proceeded to settle any apportionment question with the City of North Richland Hills. Sec. 3 of V.A.T.S. Art. 970a, the Municipal Annexation Act. Therein is provided accomplishment of settlement by having the respective governing bodies of the two interested municipalities provide in writing the agreed apportionment for exclusive extraterritorial jurisdiction, with approval thereof by ordinance or resolution adopted by both. Further provision of the section is that where agreement cannot be reached there may be judicial apportionment by an appropriate district court; an example being the suit occasioning our prior opinions at 501 S.W.2d 140 and 521 S.W.2d 727. A part of the contention by the State that the Colleyville ordinances are void is based upon Colleyville’s failure to comply with Art. 970a.

We consider provisions whereby there may be apportionment by agreement directory rather than mandatory under the circumstances. Where (as actually occurred in this case prior to judgment) a municipality presents itself as an intervenor in a judicial proceeding, by an appearance for the purpose of filing disclaimer of its right of extraterritorial jurisdiction, the other municipality’s claim to exclusive extraterritorial jurisdiction over land (which might have been the subject of apportionment by Sec. 3 of Art. 970a) is admitted and conceded along with representation necessarily implied that there had been agreement upon apportionment- — whether or not form and procedure be strictly in accord with statutory requirements.

By such action there is showing that there had been substantial compliance, appropriate under the circumstances, with the requirements of law for accomplishing apportionment. To honor the disclaimer of North Richland Hills would show Colleyville the only municipality claiming exclusive extraterritorial jurisdiction over that upon which a dispute could exist. Surely there should not be impediment to a Colleyville proceeding in annexation of territory within the area agreed to be apportioned if to do so would not constitute legal impropriety for some other reason. Here there would be no other reason.

Furthermore, and of greater consequence, we hold that where such a municipality has theretofore annexed the land as of time of the disclaimer the impediment is similarly removed, as though it had never existed, and that judgment rendered in validation of the annexation would not constitute such impropriety as to amount of reversible error. No possible prejudice to an interested party would result from judicial validation. The invalidity, if any, would in ' such a case be cured by judicial validation. In the instant case remedy, if required, was supplied by the judgment rendered in the case.

We recognize that in so holding we have embarked upon statutory construction. To do so is warranted, we believe, when we regard the intent rather than the strict letter of the provisions of Sec. 3 B of Art. 970a. It could hardly have been the intent of the legislature that a new annexation should be required merely because a former ordinance of annexation had not been preceded by an agreement of apportionment in writing by the municipalities (after which the ordinances were passed in ratification) when they are proven to be in agreement thereupon as of the time of rendition of judgment in a quo warranto case which could “validate” those same annexations. 53 Tex.Jur.2d, pages 198 and 199, “Statutes”, Sec. 136, “Ambiguous statutes”, and Sec. 137, “Enlarging and restricting effect of language”.

We take judicial notice of our own records. Of interest is that there was in 1972 a disclaimer (of extraterritorial jurisdiction to that entire area of which the Colleyville annexations would be part only) by North Richland Hills. In our records of the case, written upon in 501 S.W.2d 140 and in 521 S.W.2d 727, appears this earlier disclaimer of extraterritorial jurisdiction. Its operation was in favor of Colleyville and in extinguishment of North Richland Hills’ claim to extraterritorial jurisdiction.

As a result of the 1972 disclaimer by North Richland Hills its extraterritorial rights ceased to exist within that extraterritorial area of Colleyville’s jurisdiction where there would be “overlap”. Under this factual situation there would be an additional justification for affirmance of the judgment. At time of the judgment on appeal any supposed jurisdictional right of North Richland Hills in the entire area of “overlap” and, necessarily, inclusive of the portions thereof annexed by Colleyville, would be properly treated as non-existent.

All points of error of both the Town of Colleyville and the State, Ex Rel. City of Hurst, Texas, have been severally examined. Each is overruled.

The judgment is affirmed.

ON MOTION FOR REHEARING

State, ex rel. City of Hurst, has taken us to task because of our construction of the law in manner so as to accord validity to Colleyville’s 1971 annexation ordinances by the 1976 “waiver” of the City of North Richland Hills.

On this it says our holding is in conflict with our own prior holding in State v. City of Fort Worth, 363 S.W.2d 500 (Tex.Civ. App.—Fort Worth 1962, writ ref’d n. r. e.) in which Judge Boyd of this Court wrote: “Besides, if Everman’s annexation ordinances were void on the dates they were enacted, the release of the territory by Fort Worth (extraterritorial jurisdiction overlap), had that happened, would not operate to revive such ordinances.”

The statement by Judge Boyd was an observation which was not necessary to the ' holding of the case. Also, it antedated August 23,1963, the effective date of V.A.T.S., Art. 970a, “Municipal Annexation Act”, in which there was provision for judicial apportionment.

On this State ex rel. Hurst also says there is conflict with City of Duncanville v. City of Woodland Hills, 484 S.W.2d 111 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.). We do not perceive conflict. Therein had been an ordinance waiving complaint and consenting to an annexation of territory by the other municipality, which ordinance was revoked by a subsequent ordinance enacted prior to annexation by the other municipality-

On the Colleyville motion for rehearing that municipality again insists that long prior to the litigation Colleyville had its one-half mile exclusive extraterritorial jurisdiction established, as its says — by legislative grant of August 23, 1963, by V.A.T.S., Art. 970a. Using the premise as a “springboard” Colleyville contends that the apportionment proceeding and judgments, constituting the subject matter of our prior opinions (501 S.W.2d 140 and 521 S.W.2d 727), were all void ab initio for want of power of the trial court to make the adjudication of apportionment; that the judgment ultimately affirmed was nevertheless proper for collateral attack at any time and in any proceeding.

We cannot agree with the contention of Colleyville. Furthermore, the opinions of this Court having received the stamp of the Supreme Court “writ refused, no reversible error”, we consider it the duty of this Court to accord validity to the prior apportionment judgment. If not it would be the province of the Supreme Court, and not this intermediate court, to so declare.

Both parties’ motions for rehearing are overruled.


source: Caselaw Access Project

author: ELLIS, Chief Justice.

license: Public Domain

text:
    Rubye HENDERSON, Appellant, v. FORD MOTOR COMPANY and Pollard Friendly Ford, Appellees.
    No. 8679.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 17, 1977.

      Smith & Smith, Mark Smith, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Brock, Waters & Galey, Ralph Brock, Lubbock, for appellees.
   ELLIS, Chief Justice.

In response to a suit by Citizens National Bank of Lubbock, Texas, for a deficiency judgment on a note executed by Rubye Henderson in connection with the purchase of an automobile, Mrs. Henderson filed a cross-action against the Bank, Pollard Friendly Ford and Ford Motor Company. She alleged breach of express warranty for alleged defects in the automobile against Ford and breach of warranty and fraud against Pollard Friendly Ford, the dealer. She sought recovery of actual and exemplary damages against Pollard and Ford. The court rendered an interlocutory judgment in favor of the Bank, and at the conclusion of all the evidence the trial court sustained the respective motions of Pollard and Ford for instructed verdict and rendered a final take nothing judgment against Mrs. Henderson. By this appeal Mrs. Henderson challenges such action of the trial court. The judgment of the trial court is affirmed.

On December 29, 1970, Mrs. Henderson purchased a Falcon (Torino) from Pollard Friendly Ford, an independent Ford dealer, Lubbock, Texas. The only warranty she received from Pollard, the selling dealer, was a new car limited warranty given by Ford, the manufacturer, which provided:

FORD AND DEALER BASIC WARRANTY AND LIMITATION OF LIABILITY: 1970 MODEL PASSENGER CARS (EXCEPT MAVERICKS AND CORTINAS) AND LIGHT TRUCKS
Ford * * * and its Selling Dealer warrant, with respect to each 1970 model passenger car * * * built by Ford, that the Selling Dealer will repair or replace, at his place of business, any part (except tires and tubes which are warranted separately by their manufacturers) that is found to be defective in factory materials or workmanship in normal use * * * within 12 months from the date of original retail delivery * * *.
******
Except for responsibility for personal injuries shown to have resulted from a defect, this warranty is expressly IN LIEU OF any other express or implied warranty, condition or guarantee with respect to the vehicle or any part thereof, including any implied WARRANTY OF MERCHANTABILITY OR FITNESS.

On the face of the Motor Vehicle Contract between Buyer and the Seller, wherein terms and conditions are set out, there appears the following provision:

(1) Buyer understands and agrees that the described vehicle is purchased AS IS, without warranty of merchantability or fitness, except as follows:_Any repair under warranty must be authorized by Seller and must be done in Seller’s shop or at a shop designated by Seller.

Mrs. Henderson testified that shortly after the purchase she began having problems with the car. Her testimony and that of her witnesses, John Walker, a mechanic who inspected the ear at her request, and Fulton Berry, Jr., a police officer who had driven the car, was primarily to the effect that there was improper fitting or insulation around the windshield and vent glasses, some holes and flaws in the fire wall, improper fitting of the door on the driver’s side and imperfections in the exterior paint on the car. The mechanic also expressed to her the opinion that the car had some structural defects. However, Walker did not know how long Mrs. Henderson had owned the car when he first examined it and he did not check the mileage shown on the car. He thought he first saw the car in January or February of 1971.

Mrs. Henderson’s testimony and the repair orders introduced in evidence clearly show that between December 29, 1970, the date she purchased the car, and March 31, 1971, the date she finally returned the ear and left it at Pollard Friendly Ford, she had taken the car to Pollard for warranty work on three occasions: January 11, February 1 and February 9, 1971. She contends that the defects about which she complained were not corrected by the warranty work done prior to her return of the car on March 31. The evidence further shows that she had written a letter to Ford Motor Company complaining about the car. In response to her letter Ford sent its representative, Howard Paullus, to meet with her and seek to determine her complaints about the car and to see that all existing defects were remedied. On March 11,1971, Ford’s representative, Mrs. Henderson, Marvin Rogers, her lawyer at that time, and the service manager for Pollard, Arvil Walser, met with her at Pollard Ford’s place of business. On this occasion the car was test driven for about ten miles, and Mrs. Henderson testified that she pointed out everything she thought was wrong with the car. Paullus assured her that all of the defects and problems she pointed out would be repaired. Also, Walser, Pollard’s service manager, testified that Paullus told Mr. Rogers, her lawyer, in Mrs. Henderson’s presence, that he would be happy to see if “we could do whatever was necessary to make that car acceptable for her,” and Rogers responded that he didn’t believe anyone could ask for more.

The record indicates that she did not leave the car at Pollard Ford on March 11. A letter dated March 12,1971 (the day after the above mentioned conference on March 11) addressed to and purportedly mailed to Mrs. Henderson, written by Glen R. Pollard in behalf of Pollard Friendly Ford, was introduced into evidence. The letter reads:

We wish to again invite you back to our dealership to enable us to repair the items you discussed with Mr. Paullus, Ford Service Representative, in your conversation with him, Mr. Rogers, and our service manager, Mr. Walser, on March 11, 1971. We stand ready, willing and able to perform any necessary repairs that may be needed under Ford’s new vehicle warranty •

The letter indicates that copies were sent to Marvin Rogers, her attorney, Howard Paullus, the Ford representative and Don Castleberry, a loan officer of Citizens National Bank. Also, the record reflects that Mrs. Henderson had sent a complaint to Better Business Bureau dated 3-13-71. A copy of the complaint was sent to Pollard, and on March 16, 1971, Pollard responded on the Better Business Bureau form to the effect that Pollard was willing to do all necessary repair work. Also, a copy of his letter to Mrs. Henderson was attached to the response to Better Business Bureau.

She brought the car to Pollard Ford on either March 31 or April 1. The work order was dated April 1. Walser, the service manager, testified that he talked with Mrs. Henderson on this occasion when she brought the car in. He stated that Mrs. Henderson was present when the entries on the work order were made; that he went over each thing in detail, “just what she wanted fixed on the automobile,” and “told the service adviser who was standing right there with his pad just exactly what to write down.” The record reflects the following testimony by Walser:

Q Did she ask that anything be put on there that was not put on there?
A No, sir.
Q Did you put everything on the repair orders that she requested?
A Yes, I did. I had it put on the repair orders.

Mrs. Henderson testified on cross examination that she took the car back on March 31, and asked Pollard to fix the car under the warranty. Although she agreed to have the work done, she expressed doubt that they could do it. Also, she stated that she didn’t know whether she would be satisfied if they did repair all of the things about which she had complained. She testified that she did not go back after March 31 to see whether the repairs had been made. Moreover, she further testified that on March 31, the day she returned the car to Pollard Ford, she went out and purchased another car. Neither she nor any other witness presented any testimony whatsoever that the car she purchased from Pollard was not repaired after she returned it on March 31.

The service manager for Pollard Ford, Mr. Walser, testified that between April 1, 1971, and about April 12, 1971, the car was completely repainted, the doors removed and adjusted and all of the various complaints and requests made by Mrs. Henderson were remedied. The Ford representative, Mr. Paullus, testified that after all of the requested work was completed he returned to Lubbock on April 17, 1971, to check all of the work done on the car. He found, after complete inspection and road testing, that all of the requested work had been done. Subsequently, the Bank repossessed the car. Mr. Castleberry, loan officer for the Citizens National Bank, testified that whenever a car is repossessed, the car is checked to determine whether there is work that needs to be done. The Bank’s repossession sheet introduced into evidence showed repossession on June 10, 1971, and that the condition of each of the various essential items pertaining to the car was good.

The foregoing is a review of the material evidence. All of the evidence is that, after the Ford representative assured Mrs. Henderson all the defects would be repaired, every defect was repaired. There is no evidence whatsoever that every defect complained of by Mrs. Henderson was not completely corrected by April 12, 1971, which was less than three and one-half months after she had purchased the car.

Mrs. Henderson predicates her appeal on two points of error. In brief, these points include and relate to her contentions that the instructed verdict was erroneous because factual issues were raised as to: whether Pollard and Ford had breached the warranty; whether the limited warranty had failed in its essential purpose; and whether the expressed and implied representations by Pollard constituted fraud.

Initially, it is undisputed that Mrs. Henderson purchased the car from Pollard and there is no evidence of any privity of contract between Mrs. Henderson and Ford. In this case the claim of Mrs. Henderson is strictly for alleged economic loss, and there is no pleading or evidence that the product was unreasonably dangerous or that physical harm was caused to Mrs. Henderson. Under these circumstances it is well established that strict liability does not apply, and that Mrs. Henderson, as plaintiff, cannot recover against Ford in the absence of privity of contract. Eli Lilly and Company v. Casey, 472 S.W.2d 598 (Tex.Civ.App.—Eastland 1971, writ dism’d); Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App.—Austin 1971, no writ). Thus, on the basis of lack of privity, it is our opinion that the instructed verdict as to Ford was proper.

Additionally, it is clear that the warranty was a limited warranty, and that the warranty in the instant case limited the obligation to repair or replace defective parts within a twelve month period. Further, under the provisions of § 2.316, Texas Business and Commerce Code, a warranty may expressly exclude any implied warranties. The only warranty given by Pollard was the same written limited warranty given by Ford. Under the terms of the Motor Vehicle Contract between the Buyer and Seller, it was expressly provided that the above described vehicle is purchased AS IS, without warranty of merchantability or fitness, and “any repair under warranty must be authorized by Seller and must be done in Seller’s shop. . . .’’In this case, the “AS IS” language effectively excludes implied warranties under the express provisions of § 2.316, supra. In the light of the warranty given, the question is not whether defects existed in the automobile at the time it was purchased, but whether or not Ford and Pollard breached the warranty that Pollard would repair or replace any part found to be defective in factory materials or workmanship within twelve months from the date of the original retail sale and delivery.

Mrs. Henderson contends that there were fact issues as to the breach of warranty by Pollard and Ford. She argues that the evidence shows that all of the defects were not repaired or, alternatively, were not remedied within a reasonable time, and cites in support of such position the cases of Ford Motor Company v. Gunn, 123 Ga.App. 550, 181 S.E.2d 694 (1971), and General Motors Corporation v. Earnest, 279 Ala. 299, 184 So.2d 811 (1966). It is noted that in Gunn, the court stated that all efforts by Ford dealers to correct the problems had not been successful. In the instant case, the testimony is undisputed that between April 1 and April 13, 1971, all of the defects complained of by Mrs. Henderson were completely remedied and there is no evidence to the contrary. In Earnest, it is noted that the case was reversed and judgment rendered for the manufacturer on the ground that the claimant was not seeking recovery for breach of an express warranty but was seeking recission of the contract of sale against the dealer, and thus it was not an action against the manufacturer. Further, the court specifically stated that it was not deciding whether there was a fact issue for the jury as to the breach of express warranty. In view of the above mentioned significant factual distinctions and the vital differences in the pleadings, proof and remedies sought, we do not agree that the Gunn and Earnest cases are controlling here.

In the case of Lankford v. Rogers Ford Sales, 478 S.W.2d 248 (Tex.Civ.App.—El Paso 1972, writ ref’d n.r.e.), the court affirmed the action of the trial court in rendering summary judgment for Rogers Ford Sales, the dealer, and Ford Motor Company, the manufacturer, in a suit for damages for breach of warranty of merchantability of an automobile. The basic question involved in Lankford relates to the existence of genuine issues of material fact as to whether the warranty failed in its essential purpose whereby the plaintiff would be entitled to recover on a warranty of fitness and merchantability. During a period of eighteen months, the car was in the shop for repairs some 45 days for about 50 different defects. Although in each instance of breakdown repairs were admittedly made to rectify the defects, at times it would take one to five attempts to make the repairs. The pertinent language of the warranty is quite similar to that involved in the instant case with regard to repairing or replacing defective parts within a limited period of time (24 months in Lankford and 12 months in the instant case). In Lankford the plaintiff complained that the limited written warranty had failed in its essential purpose, alleging that after repeated repairs, the automobile was still not of merchantable quality and as such breached the defendant’s implied warranty of merchantability and fitness.

Although the evidence in Lankford disclosed that there were numerous defects appearing over an extensive period of time, some of which required several attempts to correct and others rendering the vehicle unsuitable for use (power steering defect), the court of civil appeals concluded that as a matter of law, the limited warranty (whereunder Ford, through implementation by the dealer, hád made the needed repairs to rectify the defects) had not failed in its essential purpose. Thus, the court of civil appeals affirmed summary judgment for the manufacturer and the repairing dealer in the purchaser’s action for breach of warranty of fitness and merchantability, thereby effectively demonstrating that such evidence did not raise a fact issue of breach of the limited warranty with which the defendants had complied, and upon which they relied to prevail in this summary judgment action.

It is argued that in Lankford the plaintiff admitted the repairs had been made on each occasion that the car was returned for such repairs, while in the instant case Pollard did not repair the defects complained of and Mrs. Henderson was told by Pollard that nothing could be done about the car. There is some contention between the parties as to whether this conversation between Pollard and Mrs. Henderson related to the repairing of the car she had purchased or to her request for the return of the car she had “traded-in” (which had been sold for several weeks). In any event, in the instant case the evidence is undisputed that all of the complaints made by Mrs. Henderson were in fact repaired and remedied in four trips and within three and one-half months from the date of purchase. In Lankford, it sometimes took five trips to repair defects. In this case, Mrs. Henderson never returned after March 31, 1971, the fourth trip, to see if the defects were remedied. In Lankford and the instant case, the evidence is undisputed that the repairs of all defects complained of were in fact made (in Lankford within 15 months; in this case within 3½ months) and performance was had by the warrantors well within the provisions in limitation of the remedies and liabilities expressed in the limited warranty.

Mrs. Henderson contends that the evidence raised a fact issue as to whether the warranty failed to its essential purpose. However, there is no pleading by the plaintiff that she was entitled to recover because the warranty failed to its essential purpose, and, therefore, no jury issue was raised or could be submitted. Travelers Insurance Company v. Marmolejo, 383 S.W.2d 380 (Tex.1964). Further, there was no evidence that the warranty failed of its essential purpose, and thus no issue could have been submitted. In this case, a limited warranty to repair defects within the limitation prescribed without expense to the purchaser was given in lieu of any implied warranty of merchantability or fitness. Since this performance was within the provisions of the limited warranty, the warranty did not fail of its essential purposes. See Lankford v. Rogers Ford Sales, supra; §§ 2.316 and 2.719, Texas Business and Commerce Code.

In the instant case no evidence was presented as to the value of the automobile having the defects which Mrs. Henderson claimed it to have, and there was no evidence to support a finding of damages even if it is assumed that such claimed defects were never remedied. In any event judgment should have been rendered for the defendants because the plaintiff presented no proof as to the value of the automobile in its delivered or subsequent condition. Bill McDavid Oldsmobile, Inc. v. Mulcahy, 533 S.W.2d 160 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). Although plaintiff has alleged exemplary damages, such damages cannot be recovered in a contract action (breach of warranty) such as this. See Graham v. Turner, 472 S.W.2d 831 (Tex.Civ.App.—Waco 1971, no writ) and cases cited therein. Thus, there is no evidence of damages that could be recoverable by the plaintiff in the suit for breach of warranty and this situation would justify the instructed verdict.

We have concluded that there is no evidence that Ford or Pollard refused to attempt to repair or replace the alleged defective parts in the automobile and that the evidence is uncontroverted that between April 1 and April 13, 1971, all defects complained of by Mrs. Henderson were replaced or repaired in accordance with the written limited warranty. Thus, the warrantors’ performance was within the limitations of the warranty and there was no evidence of probative force to support a finding of breach of warranty against Ford or Pollard.

It is Mrs. Henderson’s further contention that the court erred in directing a verdict in favor of Pollard on the grounds that the pleadings supported by the evidence established a fact question as to whether the express and implied representations made to her by Pollard constituted a fraud. We disagree.

According to the record, the basic representations made by Pollard were that the vehicle in question was a “new” car. The record does not reflect that Pollard represented the car to be free of defect. In this regard, Pollard furnished the warranty of Ford and the selling dealer to remedy whatever defects may appear. The plaintiff accepted the car “as is” and received the warranty to repair or replace defective parts, subject to the limitations therein contained. The evidence discloses the title documents and other records which clearly show that this sale was the first sale and that this car was a new car as defined in Tex.Rev.Civ.Stat.Ann. art. 6687-1 § 9, i. e., an automobile which has not been subject to a first sale in this state or elsewhere. Also, during the trial, the attorney for Mrs. Henderson stipulated that “those titles show that it’s a new car.” Although an employee in Pollard’s office by mistake typed the word “used” on the invoice, this entry does not effectively dispute the evidence of the new status of the car as shown by the various title papers and other documents and the stipulation of counsel. Moreover, the testimony of the mechanic, John Walker, who expressed some doubt as to whether the car was new does not serve to dispute the record which shows that the vehicle when delivered was “new” and further that all defects complained of were repaired. He did not see the car when it was new. At the time he saw the car it had been used. It is our opinion that there is no evidence of probative force that the car was not new when it was delivered to Mrs. Henderson. Further, there is no evidence to support the claim made by the appellant that the car was represented to be free of damage and defects.

The appellant admits that there was no proof of intentional fraud but relies on constructive fraud which is the breach of some legal or equitable duty that the law declares because of its tendency to deceive others or violate a confidential relationship or injure public interests, such as that referred to in the cases cited by appellant: Archer v. Griffith, 890 S.W.2d 735 (Tex.1964) (attorney and client); and Land v. Marshall, 426 S.W.2d 841 (Tex.1968) (husband and wife).

Mrs. Henderson testified that she had dealt with Pollard’s company on a prior occasion and that she trusted Pollard’s personnel. However, we do not believe that such testimony and the events surrounding this transaction prove the existence of that close and confidential relationship of such nature as to form the basis of constructive fraud liability. The limited warranty and the contract of purchase signed by Mrs. Henderson whereby she purchased the car on an “as is” basis, the title papers and documents, together with the repair work and remedial action taken pursuant to the warranty, all demonstrate that there is no basis for a fraud action. In a fraud action the misrepresentation must be concerning a material fact. There is no evidence of probative force that the car was not in fact a “new” car. Even if there were evidence of elements of constructive fraud, and we hold there is none of probative force, the plaintiff could not prevail because of failure to present any evidence as to damage. There was no evidence as to the market value of the automobile as delivered, or that such market value was any less than the price paid. In the absence of proof of a misrepresentation and with no evidence of injury or damage, we hold that the fraud claim is without merit.

From a review of the entire record, we have concluded: there is no evidence of probative force of a breach of warranty; the warrantors’ performance was within the terms of the limited warranty given and accepted; there is no pleading or evidence to support the contention asserted in this appeal that the warranty failed in its essential purpose; there was no showing of actual or constructive fraud; and no damages were proven, either for breach of warranty or fraud.

For the reasons above stated no factual issues were raised as to whether Ford and Pollard breached the warranty and as to whether the representations made by Pollard constituted fraud. Accordingly, the instructed verdict in favor of Ford and Pollard was proper, and Mrs. Henderson’s points of error are overruled.

The judgment of the trial court is affirmed.

      . Falcons were redesignated as Tormos by Ford Motor Company in June, 1970.

      . Even the service personnel of the repairing dealer advised the purchaser that this automobile developed more defects than would normally be expected for an automobile of this quality.


author: BARROW, Chief Justice.

text:
    Nick PENA, Appellant, v. Oliver B. WILLIAMS et ux., Appellees.
    No. 15686.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 26, 1977.
    Rehearing Denied March 2, 1977.

      Jose F. Olivares, San Antonio, for appellant.
    Jack B. Sims, Sims & Sims, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellees brought this suit to cancel a written lease agreement executed on October 10, 1972, whereby appellees leased to appellant, Nick Pena, and Gilbert Benavides a 105.2-acre tract of land in Bexar County for a primary term of five years. Judgment was entered on a jury verdict terminating the lease and awarding appellees judgment against Pena and Benavides jointly for unpaid rents of $1,700.00 plus the sum of $99.56 for insurance premiums paid by lessors on behalf of lessees. Only Pena has perfected an appeal.

Appellant urges six points of error; however, most are multifarious and complain of several matters. Under his first point, appellant asserts that the judgment is fundamentally erroneous for several reasons. He states at the outset that the judgment does not- dispose of all parties in that Ted Moczygemba, who was joined as a party defendant in appellees’ original petition, was not disposed of by the final judgment. This was not necessary since Moczy-gemba was dropped from the suit by appel-lees’ amended petition and this had the effect of dismissing him from the suit. Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833 (1942); Valdez v. Gill, 537 S.W.2d 477 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.). The judgment properly recites that Benavides appeared by his attorney of record in that an answer was filed on behalf of Benavides and Pena by Jose Olivares, Esq., and he vigorously protected both their interests. In any event, Benavides has not appealed. The uncontradicted evidence established the amount of rental owned by lessors and supports the finding by the trial court. The other matters complained of by appellant under his first point were not urged in appellant’s amended motion for new trial and were thereby waived. Rule 374.

Appellant asserts by his second point of error that the trial court abused its discretion in striking appellant’s answer and cross-action because of appellant’s failure to respond to interrogatories propounded by appellees. When a party refuses to answer any question after being directed to do so, the trial court is authorized by Rule 215a to consider the refusal as a contempt, or to make such orders as are just, including those penalties permitted by Rule 170. Rule 170(c) permits an order striking pleadings or parts thereof.

We recognize that this is a harsh penalty and should be sparingly used. Here it was used to enable the case to proceed to timely trial. The interrogatories filed by appellees sought information material to the case and appellant was given reasonable opportunity to produce same. Two separate hearings were held on appellees’ motion to compel appellant to answer and appellant was given an opportunity after each hearing to complete his answers to the interrogatories. The answer and cross-action were not ordered stricken until shortly before the case was set for trial before a jury. Although all pleadings of appellant were ordered stricken, the appellant was permitted to appeal, cross-examine the witness of appellees, and call witnesses in his own behalf. The trial court did not abuse its discretion in striking the pleadings of appellant upon his refusal to answer the interrogatories. Rainwater v. Haddox, 544 S.W.2d 729 (Tex.Civ.App.—Amarillo, 1976, no writ history); Ramsay v. Santa Rosa Medical Center, 498 S.W.2d 741 (Tex.Civ.App.—San Antonio 1973), cert. denied, 417 U.S. 938, 94 S.Ct. 3062, 41 L.Ed.2d 661 (1974); Thomas v. Thomas, 446 S.W.2d 590 (Tex.Civ.App.—Eastland 1969, writ ref’d n. r. e.).

Appellant urges by his third point that the trial court erred in entering judgment on the jury findings that the appellant had committed material and substantial breaches of the lease because a trial judge had stated to the attorneys that as a matter of law the breaches were not material and substantial. A careful examination of the record establishes that the trial judge did not render judgment to this effect, but that his remark was made during a discussion with counsel outside the presence of the jury in an unsuccessful attempt by the trial judge to settle the case. The judge stated at that time that he would render judgment for appellees in the sum of $1,800.00 plus the unpaid insurance premiums if there was no objection by appellees. It is obvious that a settlement was not agreed to by the parties in that the jury was shortly recalled and appellant proceeded, without objection, to call another witness. Error is not shown by appellant’s third point of error.

Appellant asserts by his fourth point that the issue inquiring as to whether he had sublet the premises was erroneous in that such issue was “a global issue.” Any error in the form of the jury issue has been waived by appellant in that there are no objections to the court’s charge brought forward in the transcript or even in the amended motion for new trial. Rule 324; Sterling v. Tarvin, 456 S.W.2d 529 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.).

Appellant’s fifth point, which complains of the money judgment against him, is based on his erroneous assumption that damages were awarded appellees for breach of the lease. The undisputed testimony establishes that appellant remained in possession of the premises during the pendency of the suit although no rent was paid. The trial court properly awarded appellees judgment for the unpaid rental value of the premises while lessees were in possession of the premises. No error is shown by this award.

Appellant’s final point urges that there is no evidence or insufficient evidence to support the verdict of the jury. While we have serious doubts as to whether this point has been preserved by a proper assignment in appellant’s amended motion for new trial, there is sufficient evidence to support the jury findings that appellant had sublet the premises without the permission of appellees and that this breach was a material and substantial breach of the written lease. Appellant admitted that he had rented the premises to Ted Moczygemba for nearly a year at a rental of $60.00 per month. Paragraph three of the lease agreement provides: “That Lessee will not sub-let said premises, or any part thereof, to any person or persons whatsoever, without the consent of said Lessor, IN WRITING, thereto first obtained.” These findings of a material breach support the judgment of the trial court terminating the lease and it is unnecessary to consider the jury findings of other breaches of the lease agreement. Appellant’s sixth point is therefore without merit and is overruled.

The judgment is affirmed.

      . All cites to rules are Texas Rules of Civil Procedure.

      . See Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).


author: REYNOLDS, Justice.

text:
    CITY OF AMARILLO, Appellant, v. Herbert BYTHEWAY, Jr., Appellee.
    No. 8744.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 31, 1977.
    Rehearing Denied Feb. 28, 1977.
    Robert D. Cheatham, City Atty., Mallory G. Holloway, Asst. City Atty., Amarillo, for appellant.
    James D. Durham, Jr., Amarillo, for ap-pellee.
   REYNOLDS, Justice.

In obedience to a subpoena, Amarillo policeman Herbert Bytheway, Jr., testified, and under the record truthfully, that the reputation of a convicted defendant for truth and veracity was good. As a result, Bytheway was charged by the Amarillo Chief of Police, L. W. Spradlin, with testifying contrary to the facts of the defendant’s criminal record in violation of five personnel and police department rules and regulations and indefinitely suspended without pay. The Amarillo Civil Service Commission upheld the indefinite suspension and ordered Bytheway dismissed from the department. The 108th Judicial District Court of Potter County summarily annulled the order.

The overriding question is whether a policeman’s truthful testimony compelled by a subpoena is conduct for which he may be suspended and dismissed from the police force. We hold that it is not and affirm the judgment of the district court.

Through an investigation conducted by Detective Bert Collins and other members of the Amarillo Police Department, one Lyndal Martin Stephenson was indicted in Randall County for the offense of aggravated robbery, a first degree felony. Following the guilt-innocence phase of the bifurcated trial, a jury found Stephenson guilty of the offense of robbery, a second degree felony.

Amarillo policeman Herbert Bytheway, Jr., was subpoenaed by Stephenson to testify at the punishment stage of the trial. Bytheway knew Stephenson from previous employment and as an attendant at the church where Bytheway preached. He had heard Stephenson’s reputation for truth and veracity discussed in the community.

Upon being served with the subpoena, Bytheway, who neither was requested nor had volunteered to testify, informed his sergeant and asked for the correct procedure. He was instructed to, and he did, appear and testify in uniform as prescribed by the City’s law enforcement code of ethics. The district attorney agreed that if Bytheway had not appeared, he would have been subject to the penalties imposed by Article 24.05, Vernon’s Ann.C.C.P., for disobedience of the subpoena.

Prior to giving his testimony, Bytheway was asked by District Attorney Randall L. Sherrod if he had heard that Stephenson had been arrested for auto theft and for illegal possession of an M-16 weapon, the charges for which were dismissed, and for the robbery. Bytheway had not heard of the former arrest, but he had heard of the latter two arrests.

Thereafter, Bytheway and several other witnesses, perhaps as many as six, one of whom was the owner of the premises where the robbery had occurred, testified that they knew Stephenson’s reputation for truth and veracity in the community in which he resides, and that it was good. The specific introductory question asked Bythe-way was:

Are you acquainted with his general reputation for truth and veracity of a peaceful nature in the community in which he resides?

District Attorney Sherrod conceded that the question concerned only Stephenson’s reputation for truth and veracity, and he declared that Bytheway testified truthfully to what he thought was the truth. Bytheway was not asked if he knew Stephenson’s reputation in the community for being a peaceable, law-abiding citizen; however, he testified in the hearing before the civil service commission that if he had been asked that question, he would have replied that it was not so good. The State presented no evidence of bad reputation. The jury assessed Stephenson’s punishment at five years adult probation.

Upon being informed of Bytheway’s appearance and receiving a copy of his testimony, Amarillo Police Chief L. W. Spradlin indefinitely suspended Bytheway without pay for violating certain personnel and police department rules and regulations. The written charges of the rules and regulations violated and the acts constituting the violations, copied verbatim, are:

I.
“Conduct prejudicial to good order” which is a violation of Article XX, Section 115, of the Personnel Rules of the City of Amarillo adopted by the Civil Service Commission of the City of Amarillo pursuant to Section 5, Article 1269m, V.A.T.S.

Your Acts constituting a violation of the above referenced Civil Service Rule are as follows:

That on April 10 and 11, 1975, you responded to a subpoena to Randall County District Court to testify as a character witness in the sentencing hearing of Lyndol Martin Stevenson, Cause No. 2292-B, who had been convicted on April 9, 1975 for armed robbery. You were told prior to your testimony by Randall County District Attorney, R. L. Sherrod, that the Defendant had been arrested in 1970 for automobile theft; also that the Defendant had a pistol and an M-16 rifle in his possession when he was arrested; and that the Defendant had been convicted of armed robbery the day before your testimony. With all of this information you testified that Lyndol Martin Stevenson had a good reputation for truth and veracity of a peaceful nature in the community within which he resides.
Your action caused a morale factor within the department, especially among the officers who arrested and prepared a case on Mr. Stevenson. The lowering of morale among members of the Police Department is prejudicial to good order. Also prejudicial to good order is the fact that by so testifying contrary to the facts given you by the District Attorney Sherrod, that you have created a situation whereby you would be ineffective as a police officer witness in the prosecution of future armed robbery defendants.
II.
“Violation of any of the rules and regulations of the department” which is a violation of Article XX, Section 115 of the Personnel Rules of the City of Amarillo adopted by the Civil Service Commission of the City of Amarillo pursuant to Section 5, Article 1269m, V.A.T.S. The Amarillo Police Department Rules and Regulations which you violated are: paragraph 3 of the Law Enforcement Code of Ethics, page 1; paragraphs 3 and 4 of the Introductory Section, pages 2 and 3; and Chapter 8, Section 142, page 115.

A. Page 1, Paragraph 3, Law Enforcement Code of Ethics. I will never act officiously or permit personal feelings, prejudices, animosities or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities.

Your acts constituting a violation of paragraph 3, page 1 of the Law Enforcement Code of Ethics, are as follows:

That you let your personal feelings and friendship influence your decision to testify that Lyndol Martin Stevenson had a good reputation when your intelligence, training, and common sense would indicate to you that a person convicted of a felony in a crime of violence does not have a good reputation. Your testimony was contrary to the facts that had been given you regarding the character and reputation of Mr. Stevenson.
Your testimony was demoralizing to fellow members of the Amarillo Police Department to the extent that some have given affidavits protesting your actions.
Your testimony in this case has to a degree, created a situation whereby you would be ineffective as a police officer witness in the prosecution of future armed robbery defendants.

B. Paragraph 3, Introduction Section, page 2. Efficiency is the first rule of an officer’s conduct. A police officer should remember that in the execution of his duties, he acts not for himself, but for the public, and that his appointment is in no sense for his own advantage. The entire law regulating his function hinges upon this principle. He is required to be governed by no feeling, save zeal to do what the law commands, and should never allow passion to urge him to brutality, nor fear, favoritism or sympathy to induce him to illegal leniency nor neglect of duty. The officer must bear in mind that he represents the dignity and authority of the state and is a representative of the law to those lawful demands all must submit, and such submission can be compelled when necessary. He should use no unnecessary force nor hesitate to use necessary force when circumstances require. The rules and regulations hereinafter set forth are compiled, adopted, and published by the Chief of Police for the information, guidance, government, discipline and administration of the police department of the City of Amarillo, Texas, and the members and employees thereto. They are prepared to present to all members and employees of the department, the duties and obligations required of them in the proper performance of their duties. Any violations of these rules and regulations shall be made the subject of disciplinary charges against all persons responsible for such violations, unless otherwise directed by the Chief of Police.

Your acts constituting a violation of the above portion of the Introduction Section of the Rules and Regulations are as follows:

That you allowed your personal feelings and sympathy to induce you to give opinion testimony contrary to the facts that were given you by the District Attorney prior to your testimony. In so doing, you embarrassed the Police Department, you strained the relationship between the Randall County District Attorney and the Amarillo Police Department and you contributed toward the awarding of a probated sentence for a crime of violence that might otherwise have been a sentence to a corrective institution.

C. Paragraph 2, Introduction Section, page 3. Since it is not possible to anticipate every situation which may arise or to prescribe the specific action requisite for each case, something therefore, must necessarily be left to the intelligence and discretion of the members of the department. Those entrusted with law enforcement must be relied upon to exercise good judgment and apply sound common sense at all times, to make police service equitable and effective.

Your acts constituting a violation of the above referenced portion of the Introduction Section of the Rules and Regulations are as follows:

That you failed to exercise good judgment and apply common sense when you testified that Mr. Stevenson had a good reputation in the community after you were told of Mr. Stevenson’s arrest and conviction record.
The rules and regulations do not specifically state that an officer cannot testify to the good character and reputation of a convicted felon, convicted of a crime of violence, and in possession of two illegal weapons at the time of arrest, plus a record of arrest prior to this case, but the rules do point out that something must be left to the intelligence and discretion of the members of the department. The rules further point out that those entrusted with law enforcement must be relied upon to exercise good judgment and apply common sense at all times. You failed to exercise good judgment and to apply common sense when you gave the contradictory testimony in this case.

D. Chapter 8, Section 142. All members concerned in cases for the court are to be punctual in attendance, and shall appear in uniform except Detectives and those who are not required to wear uniform. They shall have the cases in which they are interested properly prepared, the witnesses properly subpoenaed, and all property which is to be used as evidence suitably arranged for the presentation in court. Members shall at all times be attentive and respectful towards magistrates. When giving testimony, they shall speak calmly and explicitly, distinct, and in an audible tone of voice in order to be easily heard by the court and jury, and shall not smoke, chew gum or tobacco. They shall testify with the strictest accuracy, confining themselves to the case before the court, and neither suppress nor over-state the slightest circumstance with a view of favoring or discrediting any person. When cross-examined, they shall answer with the same readiness and stability as when testifying in support of the charge, remembering that the ends of justice shall be so served by showing a desire of simply to tell the whole truth, whether or not it be in favor or against the prisoner.

Your acts constituting a violation of Chapter 8, Section 142 of the Rules and Regulations are as follows:

That your testimony in this case was obviously designed to favor the defendant and was given after you had been advised by a reputable person, the Randall County District Attorney, that the defendant was not of good character and not a person who a police officer would reasonably believe to have a good reputation in the community.

Bytheway appealed to the Amarillo Civil Service Commission. In addition to hearing the testimony of Bytheway, Stephenson and District Attorney Sherrod, from which the foregoing recitation was taken, the commission heard the testimony of Detective Bert Collins and Police Chief L. W. Spradlin.

Detective Collins, the officer who investigated the robbery with which Stephenson was charged and convicted, was present and available to testify at Stephenson’s trial that Stephenson’s reputation was bad, but he was not called to testify. He told the commission that he was acquainted with Stephenson’s reputation in the community in which he resides both for being a peaceful, law-abiding citizen and for truth and veracity, and that it was bad; however, Collins stated that any reputation testimony he would have would be confined to Stephenson’s criminal acts. It was his opinion that Bytheway’s testimony affected his and his fellow officers’ morale because Bytheway used bad judgment which caused Collins to doubt his word.

Police Chief Spradlin informed the commission that Bytheway’s suspension “was taken based upon his testimony in that trial, not as his being a witness,” and that his action was right in this case “(e)ven if it (Bytheway’s testimony) was the truth in his opinion.” Chief Spradlin’s rationale for his view was that: if Bytheway had the information given him as to the arrest record of Stephenson and then gave the testimony he did, the Chief did not need him as a police officer; as a result of Bytheway’s testimony, he did not think Bytheway could testify as effectively as a witness for the State in another case, especially so in an armed robbery case; if an officer thinks that a convicted robber who has been arrested with a machine gun, even though the charge was dismissed, is of good reputation, the Chief did not need him; he doubted that the people with whom one works have more opportunity to observe one for truth and veracity than the arresting officer; what the people in a community think of one might be important for a criminal trial, but for the Chief’s purposes, it does not make any difference; if one is not peaceable and law-abiding, it stands to reason that he is not truthful; and that anybody who is convicted of a felony has a bad reputation regardless of who they are, except Jesus Christ “because he was persecuted.”

Chief Spradlin said that Bytheway’s testimony was detrimental to the morale of the police department because it appeared to most of the people in the detective division “that it was a case of Officer Bytheway being against us in this matter.” Prefacing his statement by remarking that he could not truthfully say he thought Bytheway lied in his testimony, the Chief said:

. I was put in a position where if he was lying when he said that he felt this guy had a good reputation, then I certainly don’t need him on the police department.
And by the same token, if he was telling the truth and he thinks that a convicted armed robber and a guy that’s arrested with a machine gun and a guy that’s been arrested for auto theft has a good reputation, then I don’t need him as a police officer.

Upon this record, the Amarillo Civil Service Commission upheld the indefinite suspension and ordered Bytheway permanently dismissed from the police department. Upon the same record, the district court denied the City’s motion for summary judgment, granted Bytheway’s summary judgment motion, and ordered “the Civil Service Commission ruling ... be held for naught and set aside.”

In appealing, the City submits that this is a situation of balancing Bytheway’s right of freedom of speech with his right to be a policeman where, on balance, the substantial evidence that his judicial statement hurt or imperiled the discipline of the police department justified his suspension and dismissal. The question for decision is not cognizable in those terms, for this is not the situation where an officer spoke from his own volition to the detriment of discipline; rather, it is the situation where the officer was subpoenaed to speak in a judicial proceeding where, so the City conceded on submission, he spoke truthfully. The question, then, is whether truthful testimony compelled by subpoena constituted conduct for which a policeman may be disciplined. A negative answer is compelled.

The City of Amarillo adopted the Firemen’s and Policemen’s Civil Service Act, Vernon’s Ann.Civ.St. art. 1269m, by which the State has pre-empted the field for removal of firemen and policemen for disciplinary reasons. City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.1964). In general, Section 5 of the Act provides that the City may impose any reasonable conditions for occupying an office within its control and may discharge an employee for violating one of those conditions; but the section also provides that no rule for removal or suspension shall be valid unless it involves one or more of the grounds listed there which, insofar as the civil service commission has the power to dismiss, are exclusive. City of Sweetwater v. Geron, supra, at 553. Among the disciplinary grounds listed are “conduct . . . prejudicial to good order” and “violation of any of the rules and regulations of the . . . Police Department”, the two grounds invoked to authorize the action taken against Bytheway.

It is at once apparent from the written charges and the testimony that these grounds were invoked because of a misconception of Bytheway’s testimony. He merely testified to the community’s appraisal of Stephenson’s disposition to speak the truth. Yet, he was charged with ascribing to Stephenson a good general character or a good general reputation which did not agree with his police record. The distinction between what Bytheway did and what he was accused of doing is vital.

Although often confused, actual character is distinct from reputation; character refers to the inherent qualities of a person, while reputation refers to the collective opinion of the community evidencing the qualities of character. 2 C. McCormick and R. Ray, Texas Law of Evidence § 1324 (2d ed. 1956). One of the traits of character is the disposition for truthfulness, 1 C. McCormick and R. Ray, Texas Law of Evidence § 644 (2d ed. 1956), and the reputation for truth and veracity evidences that trait. Long ago in Boon v. Weathered, 23 Tex. 675, 682 (1859), it was noted that a man’s honesty or veracity may be in issue without regard to other aspects of his character. There, it was said at 683-85:

A person, therefore, whose general character is bad, may, notwithstanding, possess such a degree of veracity, as to entitle him to credit upon oath; and whether he does so or not, can only be ascertained by an inquiry into his character for truth.
. (I)n order to ascertain whether a man is credible or not, an inquiry must be made into his character upon that particular point. No one can be so bold as to deny, that if a man be worthy of credit under oath, notwithstanding a general bad character in other respects, then no person to whom his testimony is of value, should be robbed of it upon any ethical theory concerning the kindred nature of vices . . . ,(I)t can be asserted to be, indeed, true, that a man may preserve his veracity, amidst the general wreck of his character.

Moreover, one must speak, as Bytheway spoke, of reputation from general report, and not from his own private opinion. Boon v. Weathered, supra, at 686. Thus, reputation evidence is, of necessity, based upon hearsay, Sanchez v. State, 398 S.W.2d 117, 120 (Tex.Cr.App.1966); that is, on what the witness heard others say. Henry v. State, 433 S.W.2d 430, 433 (Tex.Cr.App.1968). On the other hand, knowledge based only on the accused’s “rap sheet” and the facts of the offense for which the accused is being tried is nothing more than an inadmissible opinion, and that knowledge does not qualify one to testify that the accused has a bad reputation as a peaceable and law-abiding citizen. Mitchell v. State, 524 S.W.2d 510, 513 (Tex.Cr.App.1975).

Applying the legal principles to the facts, it is obvious, and we hold, that compelling truthful testimony is conducive, instead of prejudicial, to good order, and that the giving of such testimony by a policeman complies with, rather than constitutes violations of, the rules quoted in the written charges. As the rules prescribe, a police officer, no less than a private citizen, has a duty to testify fully, frankly and truthfully in judicial proceedings. Accordingly, Bytheway was not subject to discipline under either of the two grounds for giving truthful testimony.

The judgment of the district court is affirmed.

ON MOTION FOR REHEARING

In its motion for rehearing, the City says our holding that Bytheway was indefinitely suspended for testifying truthfully under subpoena demonstrates our misunderstanding of the City’s case. The City now advocates that its complaint, which was not the subject of either of the City’s two points of error, was that Bytheway failed as a police officer to adequately prepare himself as a witness. We are not told in the motion how Bytheway failed; therefore, we must presume that the City is alluding to the mention made in its original brief that Bythe-way testified “(w)ithout checking Stephenson’s criminal record.” Our original opinion seems clear — and we now reiterate — that the reputation testimony elicited from Bytheway was required to be based on what he had heard others say, and that it is not legally permissible for any witness to give reputation testimony based only on the accused’s criminal record.

Next, the City takes us to task for not holding that the officers’ statements to the effect that Bytheway’s testimony hurt or imperiled the discipline of the police department was substantial evidence to support the civil service commission’s order. Again, our original opinion seems clear — and we now reiterate — that giving truthful testimony in a judicial proceeding not only is not substantial evidence, but it is no evidence of conduct which either violates any valid departmental rule or is prejudicial to good order.

The motion for rehearing is overruled.


text:
    HALLMARK BUILDERS, INC., et al., Appellants, v. L. L. ANTHONY dba Anthony Electric, Appellee.
    No. 8698.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 31, 1977.
    Rehearing Denied March 21, 1977.
    Gibson, Ochsner, Adkins, Harlan & Han-kins (Wayne P. Sturdivant) Amarillo, for appellant.
    Billy Britt Jarvis, Spearman, for appellee.
   ELLIS, Chief Justice.

This appeal arose out of a suit in quantum meruit by an electrical subcontractor against a general contractor. The case was tried without a jury and the trial court rendered judgment favorable to the plaintiff subcontractor. The defendant contractor challenges the evidentiary support for the trial court’s findings upon which the judgment was based. Reversed and remanded.

L. L. Anthony dba Anthony Electric, the subcontractor, performed electrical work and furnished electrical materials in the construction of three buildings by Hallmark Builders, Inc., a general contractor, for the owners. These buildings, used for “Dairy Queen” business establishments, are located in Spearman, Stratford and Gruver, Texas. In 1973, Anthony entered into a written contract with Hallmark to perform the electrical work on the Spearman Dairy Queen. This project was finished in July, 1973. The total contract price paid by Hallmark for the electrical work on the Spearman project was $4,600.00.

In the latter part of 1973 and the early part of 1974, Anthony commenced the electrical work on the Stratford and Gruver Dairy Queen buildings without a written contract. The electrical work required for each of the Stratford and Gruver Dairy Queen buildings was substantially the same as that required for the earlier Spearman project.

Upon completion of the Stratford and Gruver Dairy Queen projects, Anthony billed Hallmark for the sum of $6,050.00 on each of the Stratford and Gruver projects for the electrical work and materials furnished. Hallmark paid Anthony $3,000.00 on each project, leaving the sum of $6,100.00 ($3,050.00 on each project) as the amount which Anthony claimed to be due and owing by Hallmark.

The trial court found that the reasonable value of the work done on the Stratford and Gruver Dairy Queens, respectively, was $6,050.00 for each project. After deducting payments already made by Hallmark, the trial court rendered judgment against Hallmark for $6,100.00, plus attorney’s fees. Hallmark predicates its appeal on three points of error, contending that there is (1) no evidence, or (2) factual insufficiency of the evidence to support the trial court’s finding as to the reasonable value of the work performed on the two projects, or (3) such finding is so against the great weight and preponderance of the evidence as to be unjust.

In order to recover in a quantum meruit suit, the plaintiff must establish by competent evidence the reasonable value of the services performed and the materials furnished. See Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771 (1941). In seeking to establish the reasonable value of Anthony’s work in connection with the construction of the two Dairy Queen buildings, Anthony identified five exhibits as the material lists for the Strat-ford and Gruver jobs. These exhibits, said to be “invoices,” were compiled from original records. Anthony testified:

when we work on a job we normally write down all the material we use every day, in a note book. And, then, when the job is completed my secretary, or myself, list it on invoices like this.

It is noted that the respective exhibits (invoices) submitted cover “Stratford & Gru-ver Dairy Queen,” apparently listing all of the items, including materials, total working days of labor and total mileage, for both jobs. The exhibits listing items and charges do not show specific dates as to when each “item” listed was furnished, or when work was performed or when the invoice was compiled. Anthony further testified that the invoices were written up after the two jobs were over in July of 1974 and were made up from pads carried in the trucks. These pads or note books above mentioned were not introduced in evidence. The testimony of Anthony shows that the Stratford job was started in December, 1973 and finished in April of 1974, while the Gruver job was started in January, 1974 and finished in July of 1974.

Hallmark objected to the introduction of these exhibits on the grounds that they were not business records but were summaries of business records and that the business records (note books) were not before the court. The above described five invoices were admitted into evidence over Hallmark’s objections to the effect that such invoices were hearsay and did not properly come within the business records exception to the hearsay rule.

Anthony contends that the evidence supports the trial court’s finding on the basis of the business records exception to the hearsay rule under Article 3737e, Vernon’s Ann.Tex.St., which, in part, provides:

Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.

It is our opinion that the above described five exhibits were not admissible as an exception to the hearsay rule under the Business Records Act (Art. 3737e, supra), and that any testimony predicated on such exhibits was inadmissible as hearsay. See Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972) and cases cited therein. Although Anthony testified that notations were made regarding the materials as the job progressed, such memoranda was not contained in the exhibits (invoices) introduced but instead were kept on notes or pads which were not available because they were usually destroyed after the invoices were prepared. The exhibits introduced were not the records made or at near the time of the act but were summaries of the records and the underlying or supporting records were not introduced into evidence or available at the trial.

In discussing the admissibility of evidence summarizing the contents of voluminous documents in the case of Lewis v. Southmore Savings Association, supra, the Supreme Court stated:

The witness may testify of his extractions or of a net balance of accounts, but the full documents or records must “be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection if desired, or that the material for cross-examination may be available.” 4 Wigmore, Evidence § 1230 (3d ed. 1940). The Texas cases require that the source records be admissible and be produced. Dallas Railway & Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550 (1948); Sherwin-Williams Co. v. Perry Co., 424 S.W.2d 940 (Tex.Civ.App.1968, writ ref’d n. r. e. with per curiam opinion 431 S.W.2d 310); Sam Bloom Advertising Agency v. Brush, 284 S.W.2d 265 (Tex.Civ.App.1955, no writ).

To the same effect see Black Lake Pipe Line Co. v. Union Const. Co., 538 S.W.2d 80 (Tex.1976) and cases cited therein relating to the inadmissibility of summaries because they did not meet the requirements as an exception to the hearsay rule under Art. 3737e, or were not the best evidence of the underlying records. See also, Jackson v. Fontaine’s Clinic, Inc., 499 S.W.2d 87 (Tex.1973).

In support of his contention that the exhibits here introduced comply with the Business Records Act as an exception to the hearsay rule, Anthony cites the case of University Savings & L. Ass’n v. Security Lumber Co., 423 S.W.2d 287 (Tex.1967). This was a suit on a sworn account by a lumber company against a construction company and its guarantors. We note particularly that, as proof of the indebtedness, the lumber company “offered in evidence a large number of invoices and ‘delivery tickets’.” 423 S.W.2d 289.

In describing the method of record keeping and, specifically the manner of preparation of the invoices and delivery tickets, the court’s opinion set out:

. Each invoice contains a list of the materials ordered, the date of the order, the price of the various materials included in the order and the total charge for all included materials.
[The lumber company’s] president testified that the invoices were made in the regular course of business; that in the regular course of business an employee took the orders for the materials and wrote them down on cardboard “loading tickets” which were sent to employees whose duty was to load the materials for delivery; after the listed materials were loaded on trucks, the loading tickets were then returned to the office and from them other employees made up the invoices showing the sale to [the construction company] of the same materials as were listed on the loading tickets and the date of sale and delivery; another employee then checked the materials on the trucks against the invoices to make certain the orders were properly filled, and gave the truck drivers two copies of the invoices, one to be turned over to the purchaser upon delivery and the other to be signed by someone at the construction project and returned to the office as a “delivery ticket”; prices were then entered on the invoices and on fourth copies which were mailed to the construction company. [The lumber company’s] president also testified that the construction company was given a written quotation of prices before any materials were ordered.

It was held that the president of the lumber company was a qualified witness within the meaning of Art. 3737e and that his testimony supported the implied finding of the trial judge that the invoices were made in the regular course of business and were made at or near the time of the recorded act or event or reasonably soon thereafter. Further, it was held that the entries contained in the invoices admitted into evidence under Art. 3737e were competent evidence that the construction company had offered to buy the listed materials and the lumber company had accepted the offer.

The invoices containing the detailed information above described together with the underlying and supporting data provided by the “delivery tickets” which were admitted into evidence, is quite distinguishable from the “invoices” in the instant case. The invoices in the Security case were not summaries made after the whole project was completed, but were records related to and made up as each respective load of materials was delivered to the purchaser. Each delivery ticket (a copy of the invoice) was a supporting document and highly corroborative of the invoice, and both documents showed the detailed items, along with date of sale and delivery of each load of material sold. In Security, invoices and delivery tickets were introduced in evidence. Here, the exhibits denominated as invoices were in fact summaries not made up at the time of delivery of the materials but in some instances compiled several months after the delivery. There was no supporting or corroborative data such as the delivery tickets in the Security case to evidence that the delivery of the materials in the instant case was recorded at or near the time of the act or transaction. We do not believe that the facts and circumstances involved in the Security case are sufficiently analogous for the decision in such case to be controlling here.

After the exhibits summarizing the materials furnished were admitted into evidence, Anthony then testified as to his opinion concerning the fair market value of each item shown on the respective exhibits. He testified that he made a memorandum as to the worth of each item at the time of making the invoice. He stated that in making the pricing entries he used information compiled through his regular National Pricing Service, a publication that was not introduced in evidence or established as a proper predicate for the testimony offered regarding the price of the materials. Also, Anthony was unable to say as to many items exactly how much material was used on the respective jobs, and he could not be specific in many instances concerning the manner in which he applied the information from the pricing publication. Moreover, the plaintiff’s witness, Louis Sehnell, who testified as an expert electrician, was unable to give specific information or unequivocal testimony as to the electrical plans or blueprints for the respective jobs, or as to prices, discounts, and markups concerning the items about which he testified. As to the value of the material furnished and labor performed, Schnell stated that he based his total valuation on the prevailing prices at the particular time of his examination of the invoices, which amount was not shown to be the same as the reasonable value at the time the work was done or the materials were furnished.

In view of our holding that the exhibits were inadmissible as hearsay and not admissible under the Business Records Act as an exception to the hearsay rule, we have carefully considered the remainder of the testimony introduced by the plaintiff concerning his claim for recovery for the materials furnished and work performed. As above indicated, much of the testimony was either based upon inadmissible exhibits or data or was not sufficiently definite as to quantities of materials used or as to prices or values to support the court’s finding.

When we consider the plaintiff’s evidence in the light most favorable to the court’s finding, we cannot say there is no evidence to support the finding; however, after a careful consideration of the entire record, we have concluded that the evidence is factually insufficient to support the trial court’s judgment. We overrule Hallmark’s “no evidence” point and sustain its factual insufficiency point. We do not reach the third point asserting that the court’s finding is against the great weight and preponderance of the evidence.

For the reasons above stated the judgment of the trial court is reversed and the cause is remanded to the trial court for another trial.


author: KLINGEMAN, Justice.

text:
    Milton Johnny BERNHARD et al., Appellants, v. KERRVILLE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 15648.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 9, 1977.
    Rehearing Denied March 9, 1977.

      Bob Gibbins, Gibbins & Spivey, Austin, for appellants.
    Robert B. Summers, Clark, Thornton & Summers, Groce, Locke & Hebdon, Edward P. Fahey, J. Michael Myers, San Antonio, for appellees.
   KLINGEMAN, Justice.

This case arose as a result of personal injuries sustained by Mark William Bern-hard, a student at Tivy High School of the Kerrville Independent School District (School District), on property owned by the school, while Mark was involved in a vocational-agricultural project. Mark and his father, Milton Johnny Bernhard, were plaintiffs in the trial court, and School District; Paul Barr, former superintendent of such School District; L. E. Blanton, principal of Tivy High School; and Barrie Ward and Charles Bierschwale, two agricultural school teachers at Tivy High School (who will sometimes hereafter be referred to as the “individual defendants”), were defendants.

The trial court granted School District’s plea in bar and abatement and the individual defendants’ motion for summary judgment, and plaintiffs’ suit was dismissed.

Mark Bernhard had taken a vocational-agricultural course as a freshman student at Tivy High School and had enrolled to take another such course for his forthcoming senior year. In connection therewith, he had to have an agricultural project, pursuant to which he was raising a calf. The School District had a 73-acre tract known as the Ag Farm; and although a student was not required to keep or raise the animal at the Ag Farm, he could do so by obtaining permission from the teachers who acted in an advisory capacity.

The incident made the basis of this suit occurred on Saturday, July 13, 1974, a non-school day, and none of the teacher personnel were present at the time of the accident. Mark was at the Ag Farm with his parents and some friends at such time where he was weighing and worming calves. During such work the calf owned by Mark, weighing approximately 500 pounds, struck a metal pole which supported a gable roof on a building, an old army barracks on such premises. The impact caused the pole to fall, resulting in the roof giving in and falling on Mark, causing serious injuries to him. At the time of the occurrence, School District had a comprehensive general liability policy.

Plaintiff alleged that the defendants were negligent in failing to properly inspect, maintain, or supervise the premises in question, and that they allowed the premises to be used when they were in a condition of disrepair. Defendants denied liability generally and also plead contributory negligence, unavoidable accident, governmental immunity, the condition was open and obvious, and no legal duty. The individual defendants (school employees) also plead other defenses.

Plaintiffs assert five points of error; three of which complain of error of the trial court in granting the individual defendants’ motion for summary judgment; and two of which complain that the trial court erred in sustaining the School District’s plea in bar and abatement. In this opinion, the points of error pertaining to the School District, and those pertaining to the individual defendants, will be discussed separately.

KERRVILLE INDEPENDENT SCHOOL DISTRICT

By two points of error plaintiffs assert that the trial court erred in granting School District’s plea in bar and abatement because: (1) Section 19A of Art. 6252-19, Tex.Rev.Civ.Stat.Ann. (1971), does not serve as a statutory restriction on the power of the judiciary to abrogate the archaic doctrine of governmental immunity with respect to school districts. (2) The School District waived any immunity it may have had by purchasing a liability insurance policy-

Plaintiffs acknowledge that under both present statutory provisions and case law of this State the judgment of the trial court as to the School District is supportable. They argue, however, that this Court, or some other court of this State, should abrogate the doctrine of governmental immunity. They point out that this is a proper function of the courts; that many jurisdictions have done away with the doctrine; that none of the reasons advanced in support of the school district immunity have any validity today; and that this Court should refuse to follow this archaic doctrine.

In Texas, an independent school district is an agency of the State and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort. Russell v. Edgewood Independent School District, 406 S.W.2d 249 (Tex.Civ.App.—San Antonio 1966. writ ref’d n.r.e.); Coleman v. Beaumont Independent School District, 496 S.W.2d 245 (Tex.Civ.App.—Beaumont 1973, writ ref’d n.r.e.); Calhoun v. Pasadena Independent School District, 496 S.W.2d 131 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n.r.e.); Braun v. Trustees of Victoria Independent School District, 114 S.W.2d 947 (Tex.Civ.App.—San Antonio 1938, writ ref’d).

If this Court was prepared to reform the rule of liability of school districts in this respect, we would be met by the Texas Tort Claims Act, Art. 6252-19, which deals with this problem. In this Act the Texas Legislature thereby provides in Sec. 19A that:

The provisions of this Act shall not apply to school districts or to junior college districts except as to motor vehicles.

This Court does not choose to overrule the previous holdings of the judiciary of this State pertaining to governmental immunity of School District, which overruling would have to be done in face of a contrary legislative determination controlling after adoption of the Texas Tort Claims Act. See City of Houston v. George, 479 S.W.2d 257 (Tex.1972); Torres v. State, 476 S.W.2d 846 (Tex.Civ.App.—Austin 1972).

Plaintiffs also contend that the School District waived any immunity it may have by purchasing a liability insurance policy. Plaintiffs cite no Texas cases in support of this contention, but argue in support thereof:

(1) Several states have adopted the “insurance waiver theory” in order to provide some remedy to the harsh results produced by the doctrine of governmental immunity.

(2) The Supreme Court of this State has not directly addressed this problem insofar as it applies to governmental immunity, and the Supreme Court’s decision in Watkins v. Southcrest Baptist Church, 399 S.W.2d 530 (Tex.1966), involves the doctrine of charitable immunity and is distinguishable.

(3) The Texas cases which have refused to apply the insurance waiver theory as to governmental immunity are not well reasoned and should be overruled.

In Watkins v. Southcrest Baptist Church, supra, the Court said:

We note that most jurisdictions have refused to recognize an exception to the immunity doctrine based upon the existence of liability coverage. . . . This Court by refusal of a writ of error approved the holding that the purchase of insurance under legislative sanction by a state agency to protect state officers and employees from liability growing out of the use of vehicles did not constitute the waiver of governmental immunity. Texas Prison Board v. Cabeen, 159 S.W.2d 523 (Tex.Civ.App.1942). . . . We overrule petitioner’s contention that by procuring indemnity insurance the church waived its charitable immunity.

We have found no Texas cases supporting plaintiffs’ contention and all we have found are to the contrary. In Sears v. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex.Civ.App.—Eastland 1972, writ ref’d n.r.e.), the Court said:

They contend the court erred in rendering a summary judgment because the district waived its defense of governmental immunity and was estopped to assert it because it had entered into a contract of public liability insurance which provided for coverage for damages such as those suffered by these plaintiffs. We find no merit in this point of error.

In Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304 (Tex.Civ.App.—Houston 1965, writ ref’d n.r.e.), the Court said:

It is equally clear that the District did not waive its governmental immunity nor was it estopped to claim the same by reason of having taken out a liability insurance policy. . . . Waiver and estoppel are defensive in nature and operate to prevent the loss of existing rights. They do not operate to create liability where it does not otherwise exist. . While there may be some cases in other jurisdictions which hold that recovery may be had in a tort action within the limits of a comprehensive liability insurance policy taken out by a defendant claiming governmental immunity, the decisions in this State and in the majority of the states of the Union hold to the contrary.

Because of the applicable statutory provisions and existing Texas court decisions, we overrule all of plaintiffs’ points of error pertaining to School District.

THE INDIVIDUAL DEFENDANTS

The individual defendants here involved are Paul Barr, a former superintendent of the School District; L. E. Blanton, a principal of Tivy High School; and Barrie Ward and Charles Bierschwale, agricultural school teachers at Tivy High School.

Plaintiffs contend that the trial court erred in granting the individual defendants’ motion for summary judgment because: (1) These defendants are statutorily liable for their negligence which resulted in personal injury to students. (2) These defendants were responsible for insuring that the Ag Farm building was safe for use by students. (3) These defendants were not entitled to a summary judgment in their favor as a matter of law.

In summary judgment cases the question on appeal, as well as in the trial court, is not whether summary judgment proof raises fact issues with reference to essential elements of a plaintiff’s claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.1972).

The burden of proof that there is no genuine issue of any material fact rests upon the movant and all doubts as to the existence of a general issue of material fact must be resolved against the party moving for summary judgment. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. If a motion for summary judgment involves the credibility of affiants or deponents, or the weight of the showings, or a mere ground of inference, the motion should not be granted. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Campbell v. Avinger, 505 S.W.2d 788 (Tex.1974); Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

We consider first plaintiffs’ contention that these defendants are statutorily liable where their negligence results in personal injury to students, under the provisions of the Tex.Educ.Code. We have heretofore held that the master, Kerrville Independent School District, is protected by the doctrine of governmental immunity, and at first impression it would appear that its servants and employees would also be so protected. This is not necessarily so. The Texas Tort Claims Act, Art. 6252-19, Sec. 19A, protects the school districts, as hereinbefore pointed out. No such statutory protection is given to the servants and employees of the District. To the contrary, § 21.912, Subd. (b), Tex.Educ.Code Ann. (Supp.1976), appears to remove any such protection. At first glance the provisions of Subd. (b) would appear to be designed to protect professional employees from liability for acts done within the scope of their employment; however, Subd. (b) then provides that professional employees are not immune from liability for either (1) the use of excessive force in the discipline of students; or (2) negligence resulting in bodily injury to students.

The individual defendants cite Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425 (1954); Russell v. Edgewood Independent School District, supra; and Dealey v. Dallas County Junior College District, 434 S.W.2d 724 (Tex.Civ.App.—Waco 1968, writ ref’d n.r.e.), in support of their contention that they are protected from liability under the doctrine of governmental immunity. These cases are all prior to the adoption of the provisions of the Tex.Educ.Code, herein-before discussed.

Campbell v. Jones was a suit for breach of contract rather than a tort negligence suit; and Russell and Dealey are not tort suits based on any negligence theory, but involve tort suits against professional employees for decisions made within their discretionary administrative activities.

We have found no cases construing this provision of the Tex.Educ.Code. In fact, the only Texas ease we have found regarding the liability of school professional employees for their negligent acts is Sewell v. London, 371 S.W.2d 426 (Tex.Civ.App.—Texarkana 1963, no writ), which arose prior to the adoption of the Tex.Educ.Code, where the Court held that school professional employees could be held liable for their negligent acts which resulted in personal injury to students. In this case, the injured student alleged various acts of negligence on the part of his teacher, including improper supervision and instruction, and an allegation that the teacher required the pupil to use a defective power saw. The trial court granted the teacher’s motion for summary judgment. The Appellate Court reversed and remanded holding that the evidence raised disputed fact issues in connection with the alleged negligence of the teacher.

Plaintiffs also contend that under the evidence defendants were not entitled to a judgment as a matter of law and that the trial court erred in granting a summary judgment.

The summary judgment evidence before the court consists of admissions, written interrogatories, and depositions. Without setting forth in detail the summary judgment evidence, there are conflicts and disputes in some material areas.

We have concluded that the trial court improperly granted the individual defendants’ motion for summary judgment because: (1) these defendants did not establish as a matter of law that they were immune from liability under the doctrine of governmental immunity; (2) the summary judgment evidence does not establish that they were entitled to a judgment as a matter of law. The summary judgment proof does not establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiffs’ cause of action.

The judgment is affirmed as to Kerrville Independent School District. The judgment granting the individual defendants’ motion for summary judgment is reversed, and plaintiffs’ suit against the individual defendants is remanded to the trial court for a new trial.

      . Many jurisdictions have held that the procurement of liability insurance by a governmental unit has no effect upon its immunity from tort liability.

      . In Watkins v. Southcrest Baptist Church, supra, the Court also said; “However, the all important factor is that the procuring of indemnity insurance cannot create liability where none exists in the absence of such insurance.”

      .See Annot., 68 A.L.R.2d 1437, 1438 (1959), where it is said, “In a majority of jurisdictions it is held that the procurement of liability or indemnity insurance by a governmental unit has no effect upon its immunity from tort liability.”

      . Art. 21.912, Tex.Educ.Code, Subd. (b). “No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.” Sec. 21.912, Duties of Professional Employees; Liability, was adopted in 1973 by the 63rd Legislature; however, it was merely a recodification of the then existing law which was passed in 1971 by the 62nd Legislature, and the provisions herein involved are the same.