Employers Mut. Cas. Co. v. Lee
| Decision Date | 30 November 1961 |
| Docket Number | No. 13785,13785 |
| Citation | 352 S.W.2d 155 |
| Parties | EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant, v. Rennie C. LEE et ux., Appellees. |
| Court | Texas Court of Appeals |
Fulbright, Crooker, Freeman, Bates & Jaworski, Gibson Gayle, Jr., James B. Sales, Houston, for appellant.
Stein, Bennett & Shepley, Albert Stein, Houston, for appellees.
This appeal is from a summary judgment granted to appellees, Rennie C. Lee and wife, June Lee, against appellant in Cause No. 545,349, in the 11th District Court of Harris County, Texas.
Previously, in Cause No. 504,915 in the same court appellees had recovered a judgment against Albert E. Hildebrand. This suit had been instituted by appellees against Hildebrand and Walter N. Bagwell, driver and owner respectively, of the truck involved in a collision in which appellees sustained personal injuries. Appellant, as insurer, assumed the defense for Bagwell, but declined to defend Hildebrand because, it contended, he was not driving the truck with Bagwell's permission so as to extend the policy's coverage to him.
Appellees contended in Cause No. 504,915 that Bagwell was liable for their damage under the negligent entrustment doctrine. The jury found that Hildebrand had committed acts of negligence proximately causing appellees' damages and found that Walter N. Bagwell, on the occasion of the collision in question, 'caused or knowingly permitted' Albert E. Hildebrand to drive his truck, but that Bagwell did not know that Hildebrand had no proper driver's license and was not negligent in failing to determine whether he had such a license before permitting him to drive the truck. Because of these findings the trial court rendered judgment that appellees take nothing as against Bagwell.
Appellees' unsworn motion for summary judgment was not supported by affidavits. Appellant filed no reply to the motion. The judgment rendered recites that 'the motion is accompanied by the pleadings, the verdict of the jury and the judgment in Cause No. 504,915, in the 11th Judicial District Court of Harris County, Texas together with admissions filed in this cause,' and that after considering these matters the court found that there was no genuine issue of any material fact.
Appellant contends that this case must be reversed because certified copies of the proceedings in Cause No. 504,915, on which the trial court relied, were not attached to the motion for summary judgment. Our Supreme Court in Gardner v. Martin, 345 S.W.2d 274, held that Rule 166-A(e), Texas Rules of Civil Procedure, requires that certified copies of court records referred to in a motion for summary judgment be attached to the motion, and that an unsworn motion for summary judgment which referred to a previous judgment by the same court without certified copies being attached violated that provision of the rule. The court further held that since a summary judgment is possible only by virtue of Rule 166-A, a proponent who fails to comply with its provisions is not entitled to a summary judgment and reversed the trial court and the Court of Civil Appeals and remanded the case to the trial court for further proceedings consistent with the opinion.
It will be presumed that the original pleadings and judgment in Cause No. 504,915 were introduced into evidence and considered by the court in view of the recitations in the judgment and the fact that these documents are included in the transcript filed in this Court. Since appellant failed to point out the defect in pleading by motion or exception in writing as required by Rule 90, T.R.C.P., the matter not being jurisdictional, the defect is waived. Hamilton v. Jenkins, Tex.Civ.App., 235 S.W.2d 195 (mand. overruled); McKee v. City of Mt. Pleasant, Tex.Civ.App., 328 S.W.2d 224; Woodall v. Schmudlach, Tex.Civ.App., 299 S.W.2d 780; Thompson v. State, Tex.Civ.App., 319 S.W.2d 368. The failure to comply with Rule 166-A(e), as construed by the Supreme Court, in the respect pointed out, would not affect the jurisdiction of the court to render a summary judgment. Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508; Womble v. Atkins, Tex.Civ.App., 314 S.W.2d 150, aff'd 160 Tex. 363, 331 S.W.2d 294; Maxwell v. Campbell, Tex.Civ.App., 282 S.W.2d 957, ref.
Appellant contends that the trial court erred in granting the summary judgment because there was a genuine issue as to whether Hildebrand was using the truck with Bagwell's...
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