Viking v. Circle K Convenience Stores, Inc. ( 1987 )

JACK SMITH, Justice,

dissenting.

I respectfully dissent because I believe a material fact issue has been raised by the summary judgment evidence.

The appellant’s response to the motion for summary judgment concerning why the appellee’s employee shot him contradicts the summary judgment evidence submitted by the appellee in his motion for summary judgment. This contradictory evidence pertains to the issue of whether the appellee’s employee was acting in the course and scope of his employment when he shot the appellant. This is a material fact issue that should be resolved by the fact finders. If this was an appeal from a trial on the merits, I would agree with the majority opinion. However, because I believe a material fact issue has been raised in a summary judgment proceeding, I am of the opinion that the trial court erred in granting the appellant’s motion for summary judgment. Tex.R.Civ.P. 166-A; Nasser v. Security Ins. Co., 724 S.W.2d 17 (Tex.1987). I would reverse and remand for a trial on the merits.