ON MOTION FOR REHEARING
Appellant urges that we are in conflict with the case of Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970), and that that case is controlling here. Torres was a workmen’s compensation case in which the plaintiff’s claim was filed some one and one-half years after the injury but the plaintiff alleged that he had good cause for the late filing. The defendant sought summary judgment on the basis that the claim had to be filed within six months and the plaintiff’s case showed on its face that it was not filed within that period. The Court held that good cause in a trial of a workmen’s compensation case is not a plea in confession and avoidance of an affirmative defense — that proof of good cause is simply an alternative method of establishing performance of a condition precedent to recovery. Thus, the defendant-carrier could not obtain a summary judgment on the ground that the claim was not filed within six months but was required to negate with proof the plaintiff’s allegation of good cause for the late filing. The difference in such a situation and that of an affirmative defense that we have in the case before us is explained by the Supreme Court in Nichols v. Smith, 507 S.W.2d 518 (Tex.1974). Thus, Torres was an entirely different case from the one before us which turns on the affirmative defense of the statute of limitations. We have held that the affirmative defense was the burden of the defendants, but, when it was established, the burden then shifted to the plaintiff to avoid that affirmative defense by proof of the defendants’ absences from the State. Plaintiff’s burden in that regard was simply to offer sufficient proof to create a fact question. In an attempt to meet that 'burden, plaintiff offered the deposition testimony of the defendants and plaintiff now urges the rule that this testimony of an interested party is not sufficient summary judgment proof. Plaintiff gains nothing by this attack because it is simply destroying its own evidence. We adhere to our original ruling, and the motion for rehearing is overruled.
OSBORN, Justice(dissenting on motion for rehearing).
The Appellant’s motion for rehearing causes me to conclude that we erred in our original opinion, and I would grant the motion and remand the case to the trial Court.
As stated in our original opinion, in order to avoid the statute of limitations, a plaintiff must not only file suit within the limitations period, but must use diligence to secure the issuance and service of citation. That was not done in this case. But to avoid the limitations defense the plaintiff pled the provisions of the suspension statute, Art. 5537, Tex.Rev.Civ.Stat.Ann. Under that Statute, the period of time that a defendant is absent from the State is not counted as part of the limitations period. Clearly in a trial on the merits, the burden of proof is upon the plaintiff to establish that the defendant was out of the State a sufficient length of time to prevent the applicable period of limitations from barring the cause of action. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876 (1962). But this is a summary judgment case in which *446the burden is upon the defendant to establish its affirmative defense as a matter of law. Contrary to our original opinion, I now conclude that where a suspension statute is pled, limitations are not conclusively established, unless the provisions of the suspension statute are negated as a matter of law.
In Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970), the plaintiff’s claim for workmen’s compensation benefits was not timely filed with the Industrial Accident Board but good cause was alleged to justify the late filing. The Supreme Court in reviewing the burden of proof in a summary judgment case said:
“ * * * we are considering defendant’s motion, by which it contended that plaintiff’s case was without merit and that defendant must prevail, as a matter of law. Unless defendant’s evidentiary material had the effect of disproving plaintiff’s justification for not filing his claim earlier, as plaintiff pleaded it, the motion must fail. * * *
“ * * * When defendant filed this motion, it had to meet the plaintiff’s case as pleaded. Plaintiff’s pleadings alleged that he filed his claim a year late but that he had sufficient legal cause. Defendant did not meet that case by merely proving the late filing of the claim.”
Quite clearly that case teaches that where good cause is alleged in a workmen’s compensation case the defendant in a summary judgment hearing has the burden to prove as á matter of law both that: (1) the claim was not timely filed, and (2) that good cause does not exist for late filing of the claim. This is an onerous burden, but it can be overcome. Texas Employers’ Insurance Association v. Hubbard, 518 S.W.2d 529 (Tex.1974).
In Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.1974), the Court in considering the burden of proof in a summary judgment case involving the effect of Art. 5539a, Tex.Rev. Civ.Stat.Ann., which permits a case to be refiled in a proper court within sixty days after a dismissal for want of jurisdiction where the case was originally filed in a court that did not have' jurisdiction, said:
“It has been held below that petitioner had the burden of establishing the applicability of Article 5539a and that she failed to show that the first action was dismissed for lack of jurisdiction since the judgment does not expressly state this to be the cause for dismissal. The holdings and opinions of the Supreme Court are to the contrary with respect to the burden of petitioner. The non-mov-ant has no burden in response to a summary judgment motion unless the movant has conclusively established his defense. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972) ; Torres v. Western Cas. and Sur. Co., 457 S.W.2d 50 (Tex.1970). The defense of the movants in this case was the bar of limitations. This bar was not established conclusively since the contention was being made that under Article 5539a limitations ceased to run on August 29, 1956. * * * ”
Likewise, in the case at bar, the defendants contend that limitations bar this suit because due diligence was not exercised to secure the issuance and service of citation in this case which was filed less than a week before limitations would run. But the plaintiff alleged the running of limitations was suspended during the time any defendant was absent from the State under the terms of Art. 5537. Based upon the holding in the Oram case that limitations is not conclusively established where the effect of a suspension statute is raised, unless such suspension is conclusively negated, I conclude that our original opinion has improperly placed the burden of proof on showing a fact issue under the suspension statute upon the non-moving party, the plaintiff in this case.
Under both the Torres case and the Oram case, in a summary judgment pro*447ceeding, where the plaintiff has raised an issue, by pleading or proof, which unless conclusively refuted, would prevent limitations from running, summary judgment may not be granted upon such affirmative defense. A summary judgment may he granted only if the defendant as the moving party, proves as a matter of law that the suspension statute is not applicable. This conclusion is reached despite language to the contrary in Mehaffey v. Barrett Mobile Home Transport, Inc., 473 S.W.2d 643 (Tex.Civ.App.—Fort Worth 1971, no writ). In that case, the Court’s determination that the defendant-corporation was never present in Texas, within the meaning of Art. 5537, makes its holding as to who had the burden of proof dictum. I believe the dic^ turn as to “the burden of pleading and proving facts sufficient to show that the suspension statute kept limitations from running was on the plaintiff at the summary judgment hearing” is erroneous in view of subsequent Supreme Court decisions on this issue. This case does not involve an estop-pel and the decisions in Nichols v. Smith, 507 S.W.2d 518 (Tex.1974), and “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1973), are not controlling on the issue presented to us.
In reviewing the summary judgment proof under the rules set forth in Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965), it appears that the defendants in the trial Court did not negate the provisions of Art. 5537 as a matter of law. First, it should be noted that all of the proof as to the dates and periods of their absences came from the defendants who were interested witnesses. They were all required to rely upon their memory concerning trips made over the past couple of years, none of them had exact records, and all by necessity could only estimate their absences from the State. Such evidence does not constitute proof as a matter of law. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972).