concurring in part and dissenting in part.
I withdraw my prior vote concurring in the principal opinion and file herewith my separate opinion concurring in part and dissenting in part.
I concur in that part of the opinion which holds that the purchase of insurance does not estop the school board from asserting the defense of sovereign immunity. Spearman v. University City Public School District, 617 S.W.2d 68 (Mo. banc 1981).
The balance of the opinion, which would remand the case and invite continuation of the litigation against the school teachers was unnecessary for resolution of the issues before us.
Upon filing of the motion for rehearing, I reviewed the briefs and the tapes of the arguments of counsel made in our Court. In their brief, plaintiffs-appellants stated: “All respondents are being sued for their negligence while they were acting for and in behalf of the said school district.” Plaintiffs-appellants’ counsel, upon questioning by the Court, stated that the original petitions indicate that the school teachers had been sued both individually and as agents and servants of the school board. Counsel then indicated that depositions had been taken and that the teachers’ “involvement was more of that supervisory type activity which was not direct negligence, ...” Counsel’s final statement was that “[I]f you agree with the circuit judge that sovereign immunity is not waived by [the school board’s] purchase of insurance we would say then you would uphold the decision completely.”
Upon this state of the record, plaintiffs-appellants had abandoned their claim against the school teachers as individuals and there was no submissible claim pending against the teachers nor was there any request by plaintiffs-appellants that they be given an opportunity to amend their petition in order to attempt to state a cause of action against the teachers. Under these circumstances, the inclusion of the balance of the opinion, an otherwise accurate and abstract statement of law, could not be deemed other than an invitation to the plaintiffs-appellants to continue the litigation against the teachers.
I therefore dissent against that portion of the opinion which would remand the case thereby inviting further litigation against the school teachers. I would affirm the action of the trial court in dismissing all claims.