Morrow v. Port Arthur Independent School District

575 S.W.2d 339, 1978 Tex. App. LEXIS 4152

• Court: Court of Appeals of Texas
• Decided: November 30, 1978
• Docket: No. 8208
• Status: Published

Opinions

DIES, Chief Justice.

Plaintiff below, Mrs. Dempsey Morrow on behalf of her son, Walter Morrow, sued the Port Arthur Independent School District, defendant below, for the negligence of an employee, the principal of DeQueen School, in failing to instruct the school bus driver to let her son off on Sixth Street rather than Seventh Street. Plaintiff alleged Seventh Street was “very busy” and created a “dangerous situation.”

Defendant filed a general denial, and in its prayer asked “that this action be dismissed by the court; that the court find that no cause of action whatsoever exists in favor of Plaintiff.”

Defendant later filed a Motion to Dismiss on the grounds that it was protected by the doctrine of governmental immunity, and the court dismissed the case. From this order of dismissal, plaintiff brings this appeal.

The Motion to Dismiss amounted to a general demurrer, which Tex.R.Civ.P. 90 directs “shall not be used.”

See Ragsdale v. Ragsdale, 520 S.W.2d 839, 842 (Tex.Civ.App.—Fort Worth 1975, no writ); Pugh v. Borst, 237 S.W.2d 1021 (Tex.Civ.App.—San Antonio 1951, no writ); McClain v. State, 235 S.W.2d 947 (Tex.Civ.App.—Eastland 1951, writ ref’d n. r. e.); Texas Employers Ins. Ass’n v. Tyler, 224 S.W.2d 783 (Tex.Civ.App.—Galveston 1949, writ ref’d).

The proper manner for defendant below to raise its contention would be to seek a Summary Judgment as provided in Tex.R.Civ.P. 166-A, or it could proceed in the manner outlined by Judge Keith in McCamey v. Kinnear, 484 S.W.2d 150, 152-153 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

In the posture the cause reaches us we cannot consider the merits. The order of the trial court granting Port Arthur Independent School District a dismissal is reversed, and the cause is remanded to that court.

REVERSED and REMANDED.