Brown v. Aetna Casualty and Surety Company

366 S.W.2d 673, 1963 Tex. App. LEXIS 2006

• Court: Court of Appeals of Texas
• Decided: March 8, 1963
• Docket: 16114
• Status: Published

Opinions

BATEMAN, Justice.

In this workmen’s compensation case the employee appeals from a summary judgment rendered in favor of the insurer on its contention that, the employee having been injured while repairing his own automobile, as a matter of law he was not in the scope of his employment at the time of the injury. By his two points of error on appeal the appellant presents (1) that affidavits before the court raised a fact issue as to whether he was repairing his automobile so he could use it in his work for his employer, and (2) that since affidavits, depositions and pleadings showed that his contract of employment required him to be at the place where the accident occurred, and the accident occurred during working hours, the court erred in holding as a matter of law that appellant was not in the scope of his employment.

Appellant was employed as the caretaker of a cemetery near Greenville, Texas. His duties consisted of digging graves, mowing and trimming the lawn and general care of the property, including watch over the premises at night to keep unauthorized persons away. Appellant testified by deposition that he and his family lived in a house on the cemetery grounds furnished by his employer, and that his “duties called for twenty-four hours a day” and that quite often people would drive on the premises in the middle of the night and “he would get up and drive them out, ask them to leave.” He also testified that his employer furnished him a pick-up truck, but that he furnished the oil and gas for it; that it frequently would not run and after he had been there about three months he bought a second-hand car, for which he also furnished the oil and gas.

Appellee attached to its motion for summary judgment the affidavits of the president and the manager of the corporate owner of the cemetery to the effect that the corporation furnished appellant a pickup truck to be used whenever his duties required it, and that he was not required to use his own car in performing his duties.

On the day of the hearing appellant filed his answer to the motion for summary judgment and attached thereto his and other affidavits to the effect that his work on his own automobile was done in the furtherance of his employer’s business in that it was necessary to run an errand for the employer and the pick-up truck was not in operating condition and could not be repaired by appellant, that appellant’s car could be shortly repaired and used to run the errand; that he was repairing his own automobile at about 9:45 o’clock on the morning of a week day when he was injured ; that since about 7:00 o’clock A.M. of that date he had been at work raising markers and needed some tools which had to be moved in his car, which it was necessary for him to use because the pick-up truck which had been furnished to him would not run; that he found the clutch on his own car to be “out” and he and his brother were in the process of repairing it when he was injured; that Mr. Young-blood, the president of the corporate owner of the cemetery, was aware of the fact that the pick-up truck would not run and had said he would soon have it hauled into town for the necessary repairs, as they were unable to repair the truck at the cemetery.

It seems clear to us that if it was proper for the trial court to consider appellant’s said affidavits, they demonstrated a substantial controversy as to material facts, making the summary judgment improper. Appellee contends that the trial court should not have considered appellant’s said affidavits because they were not filed “prior to the date of hearing” as required by subdivision (c) of Rule 166-A, Vernon’s Texas R.C.P. Appellee with leave of court filed a motion to strike appellant’s answer and opposing affidavits on that ground, and on that ground alone. The court overruled this motion, and the order sustaining the motion for summary judgment recites that the answer and opposing affidavits were considered by the court in passing upon the motion.

The record before us indicates that the hearing on the motion for summary judgment was set for February 23, 1962, that on that date appellant’s answer to the motion and the opposing affidavits were filed, and upon being served with copies thereof appellee’s counsel stated in the presence of appellant’s attorneys and the court that he would file a motion to strike the answer and opposing affidavits “because there had been no compliance with the provisions of Rule 166-A”; that on February 27, 1962 appellee filed its motion that the court enter an order nunc pro tunc allowing appellee’s counsel to file its motion to strike the answer and opposing affidavits as of the date they were filed, February 23, 1962; that on February 27, 1962 appellant filed a written opposition to appellee’s said motion; that on March 8, 1962 the court entered an order granting appellee’s motion for leave to file its motion to strike the answer and opposing affidavits and for the court to enter an order wunc pro tunc and to allow said motion to be filed as of February 23, 1962, but on the same 8th day of March, 1962 the court also entered an order overruling appellee’s motion to strike the answer and opposing affidavits; and that on the same 8th day of March, 1962 the court entered the order sustaining appellee’s motion for summary judgment and rendered judgment that the appellant take nothing. This order recites that after hearing the motion for summary judgment on February 23, 1962 the matter was taken under advisement until the 8th day of March, 1962.

We overrule appellee’s contention that the court below erred in overruling its motion to strike and considering appellant’s affidavits opposing the motion for summary judgment. We hold that this was a matter within the court’s discretion, and that no abuse of that discretion is shown. King v. Rubinsky, Tex.Civ.App., 241 S.W.2d 220, no wr. hist.

Appellee also contends that the affidavits filed by appellant in opposition to the summary judgment are deficient and fail to comply with the requirements of Rule 166-A, in that they do not show that they were made on personal knowledge, nor that the affiants were competent to testify to the facts stated therein. Appellee made no such criticism of these affidavits in the trial court; its motion to strike them was bottomed wholly on their late filing. The complaint, being now made for the first time, in this court, comes too late and must therefore be overruled. Lobit v. Crouch, Tex.Civ.App., 293 S.W.2d 110, err. ref. n. r. e.; Farmers & Merchants Compress & Warehouse Co. v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854, err. ref. n. r. e.

We hold, therefore, that the trial court did not err in permitting appellant’s opposing affidavits to be filed, or in refusing to sustain appellee’s motion to strike the same, but that the trial court did err in granting the summary judgment in the face of the controversy raised by such affidavits as to material facts.

For this error, the judgment must be reversed.

In view of our disposition of appellant’s first contention, the case must be remanded for trial. It is therefore unnecessary for us to pass upon the second point.

Reversed and remanded.