Gulf, Colorado & Santa Fe Railway Co. v. McBride

Respondent, McBride, has filed a vigorous motion for rehearing in which he insists that we were in error in rendering summary judgment for the Santa Fe because of his pleadings of laches and estoppel as a defense to Santa Fe's cause of action. He further asserts that the defense of laches raised a fact issue and therefore it was error to render a summary judgment.

After the petition and answer had been filed and the cause was awaiting trial, McBride filed his unverified motion for summary judgment. This motion was based upon the ground that the indemnity provision of the contract did not cover the happening in question; therefore, as a matter of law, a proper construction of the contract would not permit Santa Fe to recover. McBride alleged that Santa Fe did not notify him of England's injury until two years and 15 days had elapsed, which fact engendered an unsurmountable degree of prejudice to defendant in investigating the said accident, and, in fact, made it impossible for defendant to know the nature of the accident or the extent of the alleged injury suffered by plaintiff's employee, and sought to bar plaintiff's action by virtue of laches. McBride then pleads facts he alleged constituted an equitable estoppel against the Santa Fe. These allegations are the only ones in McBride's answer touching on either laches or estoppel.

After McBride's motion for summary judgment was filed, depositions of the injured party, England; of E. A. McBride, brother of G. C. McBride, and the general manager of the rock crushing plant at the time of England's injury, and previously thereto, and at the time the depositions were taken, were filed in this cause. Stipulations as to the facts of the case were filed by the parties. About 30 days after McBride had filed his motion for summary judgment, and unverified motion for summary judgment was filed by Santa Fe. In this motion it was alleged that the pleadings, depositions and stipulations on file showed there is no genuine issue as to any material fact, and asked for judgment as a matter of law. In this state of the record, the trial court had a hearing on the motions for summary judgment on June 12, 1957, and at the close of the hearing the trial judge granted McBride's motion for summary judgment and denied Santa Fe's motion.

In this case the stipulation sets forth that Santa Fe did notify McBride of England's claim for damages and it did call upon McBride to take charge of the claim and proceed with it; that McBride notified Santa Fe that he would not take over England's claim and denied any liability under the indemnity agreement contained in the contract. There was no denial of liability because of any delay on the part of Santa Fe in notifying McBride of England's injury. Santa Fe settled with England after receiving McBride's denial of any liability. The stipulation further sets out the date of England's injury; the date of Santa Fe's letter notifying McBride of the injury and calling upon him to defend against England's claim.

The deposition of E. A. McBride shows that he first learned of England's injury and Santa Fe's demand on G. C. McBride shortly after the demand was made. Nowhere in the deposition was there anything said about any inconvenience, prejudice or injury suffered by McBride on account of not being notified earlier. Neither was there anything contained in England's deposition that showed anything regarding the dealings between McBride and Santa Fe. Laches has been defined as follows:

'In Ross' Estate v. Abrams, Tex.Civ.App., 239 S.W. 705 , 709, Chief Justice Fly quoted with approval from Pomeroy on Equity, Vo1. 5, Sec. 1442, as follows; 'Laches, in legal significance, is not mere delay but delay that works a disadvantage to another. So long as parties are in the same condition, it

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matters little whether one presses a right promptly or slowly, within the limits allowed by law; but when knowing his rights, he takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right." Culver v. Pickens, 142 Tex. 87 , 176 S.W.2d 167 , 170.

Laches is an affirmative defense which must be pleaded by the party relying on it. It is not incumbent upon a plaintiff to incorporate in his petition allegations which negative the defense of laches. See Culver v. Pickens, 142 Tex. 87 , 176 S.W.2d 167 . At the hearing on the motions for summary judgment the burden was upon Santa Fe to show there was no genuine issue of fact as to the cause of action asserted by it. Gulbenkian v. Penn, 151 Tex. 412 , 252 S.W.2d 929 ; Tigner v. First Nat. Bank of Angleton, 153 Tex. 69 , 264 S.W.2d 85 . The evidence heard on Santa Fe's motion for summary judgment showed its legal right to same; therefore, the motion could only be denied by the court if McBride raised his affirmative defenses of laches and estoppel by some means other than mere pleadings. The record shows no inconvenience, prejudice or injury suffered by McBride by failure of Santa Fe to sooner notify him of England's injury. This being true no fact issue as to laches or estoppel was shown.

Mere lapse of time raises no presumption of laches. It must be an unreasonable delay which has worked injury to another person. Turner v. Hunt, 131 Tex. 492 , 116 S.W.2d 688 , 117 A.L.R. 1066 ; Ross' Estate v. Abrams, Tex.Civ.App., 239 S.W. 705 , affirmed Abrams v. Ross' Estate, Tex.Com.App., 250 S.W. 1019 ; 30 C.J.S. Equity §§ 112, 116, pp. 522, 531; Culver v. Pickens, supra, 176 S.W.2d 170 (3).

When a motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate relief under subdivision (f) of Rule 166-A. Stafford v. Wilkinson, Tex., 304 S.W.2d 364 (4-5), 1957; Schepps v. American District Telegraph Co. of Texas, Tex.Civ.App. 1956, 286 S.W.2d 684 , 690(7-9), no writ history; Palm v. La Mantia Bros. Arrigo Company, Tex.Civ.App. 1956, 287 S.W.2d 208 (3), n.r.e.; McDonard, Summary Judgments, 30 Tex.Law Rev. 297(c); McDonald, Texas Civil Practice, Vol. 4, Cumulative Supplement, pp. 26-39, Secs. 17.26.0 to 17.26.3.

Where the plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense. LeMond Kreager, The Scope of Pleading as Proof in Summary Judgment Procedure, 30 Tex.Law Rev., pp. 613-622.

There seems to be some confusion among our courts as to just what is the correct rule of law to be applied in the above situation. As an example, we find the following statement of the rule in City of San Antonio v. Castillo, Tex.Civ.App. 1956, 293 S.W.2d 691 (7), 694:

'If there is a disputed issue of fact here as to whether or not the appellees were guilty of laches resulting in injury to the City, the summary judgments should be set aside, and the burden was on appellees to show that there was no such genuine issue. * * *' (Emphasis added.)

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We do not approve the italicized quotation as a correct statement of the law. It is contrary to our holding herein.

In the present case Santa Fe's evidence in the hearing on the motion showed no fact issue as to laches or estoppel. McBride did not come forward with any evidence to show any extraordinary circumstances, prejudice or change in position, damaging him in the conduct of his defense. The record shows that he refused to defend England's claim on the ground that the contract imposed no liability upon him.

We find nothing in the record to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.

SMITH, J., dissenting.