(concurring).
I concur in the result reached and in the affirmation of the case. I do not, however, do so from a review of the “evidence” considered by the trial court upon the motion for summary judgment. Consequently, I do not join in the conclusion that “[tjhis evidence [the deposition of Paul Hughes] establishes * * * the essential elements of defendant Paul N. Hughes’ contentions.” I am in complete accord with the rule announced in Railroad Commission v. Sample, 405 S.W.2d 338, 339 (Tex.Sup.1966), wherein the Court said:
“Appellees have not controverted the facts set out in the answer to their motion for summary judgment and the affidavits attached to the answer. All of such facts must be accepted as true, therefore, for the purpose of this appeal.” [emphasis supplied]
However, there appear to be at least two reasons why we should not place our af-firmance upon a consideration of the “evidence” offered in support of the motion for summary judgment.
1. The only summary judgment “proof” offered in support of the motion was the deposition testimony of the principal defendant, Paul Hughes. Ordinarily, such testimony does no more than raise an issue of fact, unless it is clear, direct and positive, and there are no circumstances tending to discredit or impeach such testimony. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup.1965); Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942). I am not persuaded that Hughes’ deposition testimony was within the exception noted in Cochran, supra. Furthermore, it was Paul Hughes’ burden, as the movant in the summary judgment proceeding, to establish as a matter of law that there was no genuine issue of fact, not upon intervenors to establish their right to recover. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 829 (Tex.Sup.1970).
2. There is a serious question of the admissibility of Hughes’ deposition testimony under the provisions of Article 3716, Vernon’s Ann.Civ.St. See in this connection Chandler v. Welborn, 156 Tex. 312, *309294 S.W.2d 801, 810 (1956). This question is aggravated by the omission from Hughes’ moving papers of the necessary averment that he was competent to testify. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex.Sup.1962). Under the peculiar conditions shown by our record, I am doubtful that these deficiencies were “purely formal” under the rationale of Youngstown, supra.
I would extend the rule of Youngstown so as to hold, unequivocally, that a party to a summary judgment proceeding must point out deficiencies in the summary judgment “proof” to the trial court before he is in position to complain upon appeal. He should not be permitted to lay behind a log — even to the extent of boycotting the hearing below — and then attack the proceeding upon appeal. See in this connection Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 711 (Tex.Civ.App., Dallas, 1963, error ref. n. r. e.); Sims v. Citizens State Bank, 434 S.W.2d 210, 212 (Tex.Civ.App., Houston-14th, 1968, no writ). Such an unequivocal holding, I submit, would not impose an undue burden upon any litigant; instead, it would simply make applicable to the summary judgment procedure the rule prevailing generally in the trial of cases.
Intervenors made no objection to the “proof” tendered in connection with the motion for summary judgment; they did not give the trial court an opportunity to pass upon the questions they now present for our consideration; nor have they made any effort, of course, to show that the trial court, given an opportunity would not have granted the relief our dissenting brother would now grant to them upon this appeal. Instead, they have tendered as an original complaint in this court a claimed error of the trial court which was never pointed out to the judge ruling upon the motion for summary judgment.
I would ground the affirmance in this case solely upon the failure of intervenors to raise their present complaints in the trial court. Since no complaints were made there, I would affirm the judgment.