O'Byrne v. Oak Park Trust & Savings Bank, Oak Park, Illinois , 1970 Tex. App. LEXIS 2212 ( 1970 )

STEPHENSON, and KEITH, Justices

(concurring).

Judge PARKER has covered adequately the problems presented by this appeal from a summary judgment. However, we add thereto our comments on the seeming tendency to abuse the summary judgment procedure. As was said by Judge Hutcheson in Gray Tool Co. v. Humble Oil & Refining Co., 186 F.2d 365 (5th Cir., 1951):

“ * * * this is another of those all too numerous instances of the misuse of the summary judgment procedure to cut a trial short; that here, as so often before, it has served only to prove that short cutting of trials is not an end in itself but a means to an end, and that in the conduct of trials, as in other endeavors, it is quite often true that the longest way around is the shortest way through.” ^*

Our Supreme Court in In re Price’s Estate, 375 S.W.2d 900, 904 (Tex.Sup., 1964), spoke against undue haste in an attempt to dispose of cases under Rule 166-A, saying:

“The purpose of the rule is to eliminate patently unmeritorious claims, or untenable defenses and to avoid delays of trial where there is no genuine issue of fact. It was never intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. The summary judgment is to be applied with caution and will not be granted where there is doubt as to the facts. Although the prompt disposal of judicial business is greatly to be desired, that is not the main objective. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.”

Justice Greenhill in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup., 1965), went to some length to set out in clear language the responsibility of the trial judge in passing upon a motion for summary judgment. We had occasion to tabulate these in Le Tulle v. McDonald, 444 S.W.2d 794, 795 (Beaumont Tex.Civ.App., 1969, error ref. n. r. e.), to which we now refer. It is apparent from a consideration of our record that it was error for the trial court to grant the motion for summary judgment. The attempt to shorten the trial has, therefore, lengthened the time required for the ultimate disposition of the cause.

* The Federal decisions are pertinent in construing Rule 166-A because our rule was adopted from and is substantially worded as is the Federal Rule 56. Elias v. Manis, 292 S.W.26 836, 839 (Beaumont Tex.Civ.App., 1956, error ref.).