# Jones v. Menard

> Court of Appeals for the Fifth Circuit · September 28, 1977 · 559 F.2d 1282

URL: https://www.frixlaw.com/law-library/cases/8903018

## Case

- **Full name:** Herman Wilson JONES v. Paul D. MENARD, Defendant-Third-Party v. ST. CHARLES STEEL FABRICATORS, INC., Third-Party Third-Party v. GLAZER STEEL CORPORATION, Third-Party
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 28, 1977
- **Citations:** 559 F.2d 1282; 1978 A.M.C. 2356
- **Precedential status:** Published
- **Opinion:** Concurrence by Thornberry
- **Judges:** Gee, Markey, Thornberry
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8903018

## How later opinions describe it (automated extraction)

- applying the law of Louisiana

## Opinion text

THORNBERRY, Circuit Judge,
specially concurring:
Although I am in complete agreement with a reversal on the ground that summary judgment was improper, I have trouble with footnote 5 of Judge Gee’s opinion, which intimates that the trial court’s refusal to consider the Reineke Report and Captain Menard’s affidavit was correct. Certainly this language is unnecessary to our disposition of this case.
The fact that the Reineke Reports was unsworn hardly seems to be an insurmountable problem. If the trial court was seriously concerned with determining if evidence did exist, it had the capability to “test this out” by requesting that the appellant submit a supplemental affidavit — simply the same report, this time sworn. Rule 56(e), Fed.R.Civ.Proc. Such procedure is consistent with the purpose of summary judgment: to inquire and determine whether competent evidence exists. See C. Wright, Law of Federal Courts § 99, at 492 (3d ed. 1976).
Likewise, the rejection of Captain Menard’s affidavit, submitted in proper form but on the day of the hearing, was perhaps not an abuse of discretion. Again, however, it seems the trial court seized upon an available technicality to exclude sound evidence, in contravention of the truism that courts should grant opponents all benefits of doubt in summary judgment proceedings. I cannot improve on the words of the eminent Judge Hutcheson, who remarked:
It is quite clear that technical rulings have no place in this [summary judgment] procedure and particularly that exclusionary rules will not be applied to strike, on grounds of formal defects in the proffer, evidence proffered on tendered issues.
Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8903018. Public record. Not legal advice.