La Marque Independent School Dist. v. Thompson

• Decision Date: 25 April 1979
• Docket Number: No. A2004,A2004
• Citation: 580 S.W.2d 670
• Parties: LA MARQUE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Willard THOMPSON, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 670

580 S.W.2d 670

LA MARQUE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Willard THOMPSON, Appellee.

No. A2004.

Court of Civil Appeals of Texas, Houston (14th Dist.).

April 25, 1979.

I. A. Lerner, Carlton A. Getty, LaMarque, for appellant.

John E. Sherman, Houston, for appellee.

Before MILLER, PAUL PRESSLER and SALAZAR, JJ.

MILLER, Justice.

This is an appeal from a suit for the breach of a contract of employment. The trial court rendered judgment in favor of the employee bus driver and the employer school district appeals.

In 1975, Willard Thompson, appellee, entered into a contract with the La Marque Independent School District to drive a school bus. The contract was to last for a term of nine school months beginning on August 20, 1975, and ending May 28, 1976. He had worked under similar contracts for the school district the preceding nine years with a new contract negotiated each school year. Two clauses in the contract, which are pertinent to this appeal, are as follows:

1. The driver agrees to abstain from the use of intoxicating liquors and drugs on days assigned for driving of school bus. . . .

2. It is further agreed that failure to abide by any of the provisions or regulations referred to in this contract may subject the driver to dismissal and termination of this contract by the contracting Board.

On March 4, 1976, appellee was informed by the appellant that he was not to drive a bus any longer due to his being under the influence of alcohol on March 3, 1976, while operating a school bus. Appellee did not drive a school bus after this date. A formal hearing was held on March 16, 1976. He was notified by letter dated April 13, 1976, that he was terminated as a bus driver.

Appellee instituted suit on July 29, 1976, alleging that there was a valid employment contract; that he was discharged by the appellant on April 13, 1976, for allegedly driving a school bus while intoxicated; that appellee had performed all the terms of the contract; that appellant's unreasonable actions constituted a breach of said contract; and that he was deprived of his remaining salary of $1,185.28. Appellant answered by admitting the contract; specifically alleging that plaintiff breached the contract by the use of intoxicating liquor on a day assigned for driving a school bus; and by a general denial of all other material allegations. Trial was to the court. The primary issue which was contested was whether the appellee used intoxicating liquor on a day he was assigned to drive a bus. A secondary issue was the amount of damages, if any.

After hearing the testimony and receiving evidence, the trial court awarded appellee damages for the breach of contract in the amount of $840.00 plus attorney's fees. At appellee's request, the trial judge filed findings of fact and conclusions of law.

In the first point of error appellant asserts that there was insufficient evidence to support the judgment. In reviewing an assignment of evidentiary insufficiency, we must look at all of the evidence, including that which is contrary to the verdict, to determine if it is factually sufficient to support the findings of vital facts. In re Kings' Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Fisher Construction Company v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). The appellee had the burden of proving that he was not intoxicated on an assigned day in order to show wrongful discharge.

On this issue, appellee himself testified that he had nothing to drink that day. He introduced the testimony of other school district employees to the effect that he did not drink on the job nor did he act or smell as if he had been using alcoholic beverages on March 3, 1976. Appellant put on three school district employees who testified that they smelled alcohol on appellee at a bus driver's in-service training program the Evening of March 3, 1976, and one former co-worker who testified that she smelled alcohol on appellee while he was on duty that day.

Appellant further urges that there was insufficient evidence to prove damages. The primary evidence offered on the damages was appellee's testimony that he made $145.00 to $150.00 every two weeks which included some voluntary out of town trips. Dr. M. Y. Johnson was examined on this point. He admitted to supervising the department which handles the payroll but was unable to testify as to when and how much appellee was last paid. In Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458 (Tex.1969), the Texas supreme court said:

"(Generally), evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact. This rule is not without exception however, and conclusive effect may be given to the testimony of an interested witness...