I respectfully dissent.
The majority opinion will, I am afraid, create much more confusion as to the status of summary judgment law in this state. The correct rule placing the burden of proof upon the movant is stated in several places throughout the opinion. However, interspersed among correct statements of the law, are, what I consider to be, mistatements which will do the harm I have just mentioned.
In the third paragraph of the majority opinion, a correct statement of the law is made that pleadings are not evidence, and citing the two Supreme Court decisions, Kuper v. Schmidt, supra, and Hidalgo v. Surety Savings Loan Association, supra. But between that correct statement of the *Page 398 law, and the citations, the majority opinion contains this misstatement of the law:
"Further, if the plaintiff Guidry expected to defeat the motion for summary judgment by showing an issue of a material fact, it was incumbent upon him to come forward with 'evidence' sufficient to raise that question.'
It is noted that in both of these Supreme Court cases, the movant for summary judgment was plaintiff. In Hidalgo v. Surety Savings Loan Association, supra, the court merely held the plaintiff must do more than merely allege a cause of action, he also had to prove a cause of action, and allegations in a sworn petition were not proof. Kuper v. Schmidt, supra, is a suit on a note, in which defendant had alleged conditional delivery. Plaintiff (movant) in his motion for summary judgment, had made the proper proof as to his cause of action and would have been entitled to judgment. The Supreme Court held under these circumstances the defendant must do more than allege conditional delivery of the note, that it was necessary to raise a fact issue as to that matter. The quotation of law from this case is as follows:
"When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered.'
Such holding is in accord with the Supreme Court's most recent expression in Gibbs v. General Motors Corporation, supra. The distinct impression is left by the majority opinion that Guidry in our case had to come forward and prove an issue of fact existed in order to defeat defendant's motion for summary judgment. Such a misconception as to the burden of proof is a dangerous statement of law to appear at this late date. The quotation in the majority opinion from Gibbs v. General Motors Corporation, supra, should lay this matter to rest, once and for all.
In the case before us, the plaintiff did not have to prove that Neches would have discovered the dangerous condition through an inspection made by it in the exercise of ordinary care. On the contrary, the burden was upon Neches to prove, as a matter of law, that it would not have discovered the dangerous condition if it had made the inspection required of a person exercising ordinary care.
The statement is made in the majority opinion that 'Guidry, labored under an unusual burden: he 'must negative 'noduty" in order to prevail,' citing Halepeska v. Callihan Interests, Inc., supra. This statement, as written, leaves the impression that it describes plaintiff's present burden. I hesitate to make this elementary statement, but the burden plaintiff had on this motion for summary judgment is not the same as the one he will have on a trial upon the merits, if he is given his 'day in court.' In the case before us Guidry had no burden to negative 'no-duty' in order to prevail.
The defendant Neches offered no evidence to show it made an inspection of these premises in order to determine whether or not it could be used safely for the purpose which Neches knew it would be used. Neches also offered no evidence to show what the usual and customary type of inspection would consist of in order to determine whether or not the soil would bear the weight of the equipment which Neches knew would be used. Further, Neches offered no evidence to prove that the deficiency of the soil as being capable of bearing the weight of the equipment, would not have been revealed by an inspection made in the exercise of ordinary care. It is reiterated for emphasis, defendant Neches had the burden on this motion for summary judgment, to prove these issues as a matter of law. Neches, not only did not establish these issues as a matter of law, it failed to offer any proof at all. *Page 399 The majority opinion, by in effect shifting the burden of proof upon these issues to plaintiff, permits defendant to win its case without making the proof required of it by law.
I would reverse the judgment of the trial court, and remand this case for a trial on the merits.