Harbison v. Jeffreys

• Decision Date: 06 December 1961
• Docket Number: No. 5488,5488
• Citation: 353 S.W.2d 65
• Parties: Mittie HARBISON et vir, Appellants, v. Vin L. JEFFREYS, Appellee.
• Court: Texas Court of Appeals

Page 65

353 S.W.2d 65

Mittie HARBISON et vir, Appellants, v. Vin L. JEFFREYS, Appellee.

No. 5488.

Court of Civil Appeals of Texas, El Paso.

Dec. 6, 1961.

Warren Burnett, Odessa, Ed Keys, Monahans, for appellants.

McDonald, Shafer & Gilliland, Lucius D. Bunton, Odessa, for appellee.

LANGDON, Chief Justice.

This is an appeal from a summary judgment in favor of defendant growing out of a common law suit for damages brought by tenant (appellant herein) against her landlord (appellee herein), for personal injuries to, and the death of, the tenant's minor son, which allegedly resulted when a swing set, located on premises owned by appellee, collapsed and fell. The premises involved in this litigation consisted of four 60-foot lots making a rectangular tract of land 120 by 240 feet in size, on which were located eight small (1 and 2 bedroom) rental units, all of which were leased to various tenants, of whom appellant was one. The swing in question had been constructed and placed on the premises by another tenant for the use of such tenant's own children.

Appellant alleged that appellee owned and had under his control a number of rental units, which enclosed a common area for the use of the tenants of the various units, and that appellee was negligent in placing a defective swing on the play area or common area, or permitting it to remain on the common area, the swing constituting a latent danger; that, in the alternative, appellee was negligent in leasing a portion of the common area which, at the time of leasing, contrained a latent, hidden danger, and that such negligence was a proximate cause of appellant's damages.

On September 23, 1959, appellee filed his original answer in which he specially denied the allegations in appellant's petition and alleged that the swing belonged to and was the property of persons other than himself; that the swing was located upon property which had been leased to other tenants, and that the swing was the property of and belonged to the tenants occupying the premises upon which the swing was located. Appellee denied that he kept or maintained any swing, or any other equipment, as alleged by appellant, and that such swing was being used by appellant's deceased son without appellee's knowledge.

On January 15, 1960, depositions of appellant and appellee were taken. Thereafter, after, on March 24, 1960, appellee filed his motion for summary judgment and attached thereto (in addition to the depositions that were made a part of such motion by reference) the affidavit of one Annie M. Smith. On August 5, 1960, after due notice, and at a time more than four months subsequent to the filing of appellee's motion for summary judgment, a hearing was had thereon. Appellant filed no answer to appellee's motion prior to such hearing, nor did she file any controverting affidavits at any time. The court continued the hearing until August 22, 1960, at which time appellant filed an answer to appellee's motion, but filed no counter-affidavits. The court, having considered the pleadings on file, the depositions, and the affidavit, granted the motion for summary judgment, and it is from this order that an appeal has been taken.

Appellant has based her appeal on four points, the first two of which are contentions that the trial court erred in granting appellee's motion for summary judgment because a genuine issue as to a material fact, other than the amount of damages, is presented, and because the trial court failed to resolve all doubts as to the existence of a genuine issue of a material fact against the movant appellee. Points 3 and 4 are based, first, on the contention that appellant's son was injured by hidden danger located on appellee's yard area which was under appellee's control; and, secondly, that a genuine issue as to a material fact is presented by the question, 'If appellant's son was injured by a hidden danger located on appellee's yard area which was under the control of one of appellee's tenants, was said hidden danger thereon when said tenancy commenced, or when that portion of the premises was re-let?' It was appellant's contention that the depositions of the parties and the affidavit tendered by appellee in support of appellee's own motion are sufficient in and of themselves to raise the fact issues, and thus render it unnecessary for appellant to controvert the motion by filing opposing affidavits.

Appellant admittedly has filed no counter-affidavits or other sworn pleadings in opposition to appellee's motion. It is well settled, however, that if formal pleadings of the parties at the time of the determination of the motion fail to embrace all the material issues of fact, a summary judgment will not be justified; or, when the affidavits or other summary judgment evidence disclose facts which render the position of the moving party untenable, summary judgment should be denied, regardless of defects which may exist in the pleadings of the opposite party. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233; 36 Texas Law Review 102; Kirk v. United States, 9 Cir., 232 F.2d 763. It is also equally clear that one opposing a motion for summary judgment may not rely solely on the issues raised by the pleadings of the parties, for such issues, when raised only by the pleadings, generally are not sufficient to present a genuine issue as to a material fact such as would bar the rendition of a summary judgment when the only extrinsic evidence demonstrates the absense of any issue as to a material fact. The object of Rule 166-A, Texas Rules of Civil Procedure, is to permit the prompt disposition of just such cases, and to hold otherwise would effectually nullify the summary judgment practice.

The only extrinsic evidence before us here is that which was tendered by appellee in support of his motion. Therefore, if a genuine issue as to a material fact is presented in this case, it must be looked for in the depositions of the parties and in the affidavit of Mrs. Annie M. Smith.

Appellee testified by deposition, and his testimony is corroborated by the affidavit of Mrs. Annie M. Smith, that the swing in question was not the property of appellee and had not been placed on the premises by him, but that it belonged to the Smiths; that it had been made by Alvy Raymond Smith, the former husband of Annie M. Smith, for their two small daughters, out of pipe which Mr. Smith had brought in from the oil fields, and that it had been installed by Mr. Smith in their back yard on property which they rented. The Smiths had occupied the premises since 1952. Appellee did not acquire the property until 1953 or 1954; in any event, the Smiths were in possession when the property was purchased by appellee. The Smiths installed the swing some time after the property was acquired by appellee, and it had been on the premises three or four years when the accident occurred. Before the accident, Mr. and Mrs. Smith were separated; Mr. Smith moved away, but Mrs. Smith and her two daughters continued to live on the premises and were living there on the date appellant's son was injured.

Appellant contends that the entire area back of the several rental units was a common area for use of all the tenants and was not for the exclusive use of any tenant. The record reflects that none of to so-called 'common area' was separately fenced; that part of the area was devoted to three clotheslines each of which was used in common by the tenants of two or more of the eight rental units. It also appears that appellee personally managed the rental...