Fender v. St. Louis Southwestern Ry. Co., 18340

• Decision Date: 06 June 1974
• Docket Number: No. 18340,18340
• Citation: 513 S.W.2d 131
• Parties: Donald G. FENDER, Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 131

513 S.W.2d 131

Donald G. FENDER, Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.

No. 18340.

Court of Civil Appeals of Texas Dallas.

June 6, 1974.

Rehearing Denied July 8, 1974.

Alfred W. Ellis, Woodruff & Smith, Dallas, for appellant.

Robert A. Wooldridge, Worsham, Forsythe & Samples, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

Donald G. Fender appeals from a takenothing summary judgment against him in his action against St. Louis Southwestern Railway Company based upon the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51--60 (1972). Two questions are presented: (1) Did the trial court err in sustaining the motion for summary judgment filed by the railway company on the ground that Fender's cause of action was barred by the statute of limitations, and (2) Should the trial court have taken judicial notice of court proceedings in the state of Illinois which may have tolled the statute of limitations? We answer each of these questions in the negative and affirm the judgment.

On December 7, 1967, Donald G. Fender was injured while acting within the scope of his employment for St. Louis Southwestern Railway Company at Dallas, Texas. The present action was filed by Fender in the 101st Judicial District Court of Dallas County, Texas on October 12, 1971. The Federal Employers Liability Act under which this action was brought provides that such action must be instituted within three years from the date of accident. 45 U.S.C. § 56 (1972). Appellee railway company filed its motion for summary judgment, as well as its amended motion for summary judgment, based upon the ground that the cause of action was barred by the statute of limitations and also that certain material representations made by Fender in his application for employment precluded him from recovery under the FELA. Fender did not file an answer to the motion for summary judgment nor did he present any summary-judgment evidence to oppose the motion. The court sustained the motion and entered judgment denying Fender any recovery.

The action of the trial court was based solely upon Rule 166--A of the Texas Rules of Civil Procedure dealing with summary judgments. The rule provides, in part, that judgment.

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Our Supreme Court in Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961), stated that summary judgment is possible in this state only by virtue of the provisions of Rule 166--A and therefore a party, to recover summary judgment, must strictly comply with the provisions of the rule. Thus it is elementary that the trial court, in considering a motion for summary judgment, is charged with the duty and obligation of considering only the record at it appears before the court at the time of the hearing. Richman Trusts v. Kutner, 504 S.W.2d 539 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.); Whitney Properties Corp. v. Moran, 494 S.W.2d 587 (Tex.Civ.App.--Dallas 1973, no writ); Womack v. I. & H. Dev. Co., 433 S.W.2d 937 (Tex.Civ.App.--Amarillo 1968, not writ); McCormick v. Stowe Lumber Co., 356 S.W.2d 450 (Tex.Civ.App.--Austin 1962, writ ref'd n.r.e.), and Dipp v. Rio Grande Produce, Inc., 330 S.W.2d 700 (Tex.Civ.App.--El Paso 1959, writ ref'd n.r.e.).

The summary-judgment record before the trial court consisted of pleadings filed by appellant Fender, which affirmatively reveraled that his suit to recover under the FELA had been filed more than three years after the date of injury and was therefore barred by the express provisions of the Federal Employers Liability Act, and appellee's pleading and motion for summary judgment, which raised the limitation defense. In this posture of the case it was incumbent upon appellant Fender the opponent to the motion for summary judgment, to come forward with appropriate summary-judgment evidence to show that the affirmative defense of limitations would not apply. Nichols v. Smith, 507 S.W.2d 518 (Tex.1974); 'Moore' Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex.1972); Kuper v. Schmidt, 161 Tex 189, 338 S.W.2d 948 (1960), and Gulf C. & S.F. R.R. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958). In Nichols v. Smith, Supra, the supreme court dealt with a very similar situation and held:

(T)he defense of the statute of limitations is established by the record as a matter of law, and petitioners are relying on fraudulent concealment to avoid that defense. It was their burden, therefore, to come forward with proof raising an issue of fact with respect to fraudulent concealment. Since they failed to do so, the allegations of fraudulent concealment do not defeat respondent's right to a summary judgment.

Appellant made no effort to introduce affidavits, certified copies of official records and judgments evidencing the existence of any proceeding in another state, or any other form of summary-judgment evidence that would serve to create an issue of fact relating to the limitations plea presented by appellee. In the absence of said summary judgment evidence as provided by the rule the trial court was justified in sustaining the motion for summary judgment.

We turn now to the second question presented, that is, whether the trial court should have taken judicial notice of certain judicial proceedings in the state of Illinois which appellant contends would have established the fact that the statute of limitations was tolled . In his Brief, appellant States that in May 1968, following his injury of December 7, 1967, he filed suit against the St. Louis Southwestern Railway Company in the circuit court of St. Clair County, Illinois, seeking recovery under the provisions of the Federal Employers Liability Act. He argues that pursuant to such act he had the right to file this action in the state of Illinois where the railway company carried on its business. Appellant further States in his brief that in response to the petition filed in Illinois the railway company filed a motion to dismiss the case based upon the doctrine of Forum non conveniens. Appellant then Says that the...