Simpson v. City of Abilene

• Citation: 388 S.W.2d 760
• Decision Date: 19 March 1965
• Docket Number: No. 3947,3947
• Parties: Buel Gene SIMPSON et al., Appellants, v. CITY OF ABILENE et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 760

388 S.W.2d 760

Buel Gene SIMPSON et al., Appellants, v. CITY OF ABILENE et al., Appellees.

No. 3947.

Court of Civil Appeals of Texas, Eastland.

March 19, 1965.

Rehearing Denied April 9, 1965.

Warren Burnett, Robert E. Hoblit, Odessa, for appellants.

Les Cochran, Abilene, for appellees.

WALTER, Justice.

Buel Gene Simpson, individually and as next friend for his seven year old son Michael, filed suit against the City of Abilene and Herman Benjamin Smith to recover damages for personal injuries sustained by the minor on or about October 31, 1958, as a result of being run over by a pickup truck owned by the city while being driven by Smith.

The city answered that the plaintiffs' claims were barred by the two year statute of limitation. It also answered that plaintiffs had failed to comply with the city's ordinances requiring the injured person or someone in his behalf to give the Mayor or Board of Commissioners notice in writing of such injury within thirty days after the injury. It pleaded that the ordinance provided that said notice should be a condition precedent to the right to sue the city and required plaintiffs to affirmatively allege and prove a compliance with the ordinance before suit could be maintained. The city's answer was verified.

Smith answered that plaintiffs' claims were barred by the two year statute of limitation.

The City of Abilene and Smith filed a joint motion for a summary judgment and asserted that as a matter of law they were entitled to a judgment because plaintiffs' claims were barred by the two year statute of limitations and because plaintiffs had failed to comply with the city ordinance requiring thirty days notice. The court granted defendants' motion for summary judgment. The plaintiffs have appealed.

Appellants contend the court erred in holding that their cause of action was barred by the two year statute of limitation; in holding that they were required to comply with the city's ordinance requiring thirty days notice of their claim; in holding that they were barred from suing Smith in his individual capacity because of failure to comply with the city's ordinance on notice and in holding that they were required to oppose the motion for summary judgment with controverting affidavits.

Appellants were not required to file counter affidavits. In Freeberg v. Securities Investment Company of St. Louis, Tex.Civ.App., 331 S.W.2d 825, (Writ Ref.), the court said:

'Summary judgments are not granted by default, but upon the movant's discharge of his burden to show the absence of fact issues. If movant's showing poses only a question of law, there is no need to file counter-affidavits. Couey v. Arrow Coach Lines, Tex.Civ.App., 288 S.W.2d 192. When movant's own showing develops a fact dispute, he defeats his own summary judgment, though there are no counter-affidavits. Jindra v. Jindra, Tex.Civ.App., 267 S.W.2d 287; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236; 4 McDonald Texas Civil Practice, Sec. 17.26.3. A respondent is entitled to rely upon admissions, depositions and exhibits in the record, though he has not filed counter-affidavits. Regsdale v. McLaughlin, Tex.Civ.App., 285 S.W.2d 467. On the basis of either of these rules, Freeberg had standing before the court at the summary judgment hearing, and the inference that he lost because he did not have a sworn answer or opposing affidavits is not correct.'

The appellees alleged that their grounds for a summary judgment were supported by the pleadings of the parties and by a certified copy of the ordinance requiring thirty days notice, which was attached as an exhibit. 'It is obvious that a motion for summary judgment on the pleadings, by the defendant, is equivalent in effect to our old general demurrer.' Summary Judgment Procedure, by Suggs and Stumberg, Vol. XXII, No. 4 Texas, Law Review, pages 433, 438. Their motion was not supported by affidavits, depositions or other proof permitted in a summary judgment proceeding on the issues made by the pleadings. The appellee's motion for summary judgment therefore challenged the sufficiency of the appellants' pleadings to raise issues of fact. Appellees were asking for a summary judgment on the pleadings. They were, in effect, saying to the court, we admit that all the facts set forth in the petition are true, but the petition is fatally deficient in substance. The operation of a motion for summary judgment on the pleadings 'is closely analogous to a special exception challenging the sufficiency of the opponent's pleadings as a matter of law. Summary Judgments by Ray W. Mc.Donald, 30 Texas Law Review 285, at page 297.

Appellants pleaded that the accident occurred on or about October 31, 1958, at which time Michael was seven years of age. Their petition was filed on March 7, 1961. Appellees' contention that the two year statute of limitation is applicable against the minor cannot be sustained. We hold that the minor's cause of action against the City and Smith was not barred by the two year statute of limitation. Article 5535, Vernon's Ann.Civ.St., provides that if a person is a minor at the time his cause of action accrues, 'the time of such disability shall not be deemed a portion of the time limited for the...