Furr's, Inc. v. Leyva

553 S.W.2d 202, 1977 Tex. App. LEXIS 3049

• Court: Court of Appeals of Texas
• Decided: June 15, 1977
• Docket: 6597
• Status: Published

Opinions

OPINION

WARD, Justice.

This is a venue case arising after a store customer suffered personal injuries when she fell because of some oil and glass on the floor of the Defendant’s store. The Plaintiff’s controverting plea sought to retain venue in El Paso County under Subdivisions 9a and 23 of Article 1995, Tex.Rev.Civ.Stat. Ann. After a non-jury hearing, the trial Court denied the Defendant’s plea and we reverse and remand with instructions.

Only the testimony of the Plaintiff, Martha Leyva, was before the Court. While she was shopping at the Defendant’s store in El Paso, she was looking at items on the shelves and she suddenly and unexpectedly slipped and fell to the floor. She testified that she neither felt nor noticed anything on the floor and she was immediately assisted to her feet by an employee whom she identified as possibly a sacker. She and the store employee looked down and noticed that her toe was bleeding, and the employee then went back to inspect where she had fallen. The employee made the following statement to her:

“ * * * that someone had broken a bottle on the floor; * * * that the floor was sort of oily; * * * and that somebody had tried to clean it up but there was some glass left on the floor.”

She did not see or describe the place on the floor, she did not see anybody cleaning up the aisle, and she did not see anybody with a mop or a bucket before the accident occurred. The subsequent testimony concerned the injuries she sustained and the medical treatment involved.

The parties agree with the rule that to establish the negligence of the store owner, the Plaintiff must show one of the following: that the Defendant put the object on the floor; that the Defendant knew that the object was on the floor and wilfully or negligently failed to remove it; or that it had been on the floor for such a period of time that it would have been discovered and removed by the Defendant in the exercise of ordinary care. Whitfield v. Furr’s, Inc., 502 S.W.2d 897 (Tex.Civ.App.—El Paso 1973, no writ). The Plaintiff relies on the last two alternatives that the Defendant knew that the liquid and glass were on the floor and negligently failed to remove all of it, or had constructive knowledge of the presence of the substance. She argues that the legitimate and proper inference from the evidence was that from the very nature of a broken bottle of oil, only a store employee would pick up the broken bottle, and he would be the only one who would even attempt to wipe up the mess. She compares these facts with the water case where it was testified that the water on the floor appeared dirty and to have been swept through with a broom. There, the circumstantial evidence and the inferences arising were held to lead to the more probable conclusion that it was an employee with a broom who had attempted the clean up. H.E.B. Food Stores v. Slaughter, 484 S.W.2d 794 (Tex.Civ.App.—Corpus Christi 1972, writ dism’d).

Without any more before the Court than is in evidence in our case, it is just as reasonable to infer that shortly before the arrival of the Plaintiff, some embarrassed customer dropped a small bottle of oil, which did not shatter, and the customer then hurriedly picked it up and disposed of it on a nearby shelf but left some glass and oil on the floor.

One inference arising is just as reasonable and probable as the other. “ ‘However, a court or jury may not be left to speculate. * * * If there is no direct evidence as to the existence of an ultimate fact and the proven circumstances are consistent with either of two theories and there is nothing to show that one rather than the other probably is correct, then neither is proven.’ ” Cambridge Mutual Fire Insurance Company v. Shoemake, 403 S.W.2d 858 (Tex.Civ.App.—Dallas 1966, no writ). The fact that the foreign substance is on the floor is not sufficient to warrant the inference that the storekeeper had placed or left it there, or knew of its presence, or that it had been there a sufficient length of time to enable the storekeeper to discover and remove it. The Plaintiff has failed to discharge her burden imposed upon her by the filing of the plea of privilege. Foodway, Inc. v. Lopez, 480 S.W.2d 227 (Tex.Civ.App.El Paso 1972, no writ).

The necessary element of the Plaintiff’s cause of action being absent, the proof fails to sustain venue under either Subdivision 9a or 23 of the Statute. Whitfield v. Furr’s, Inc., supra at 899. The Defendant’s first two points of error are sustained. We reverse the judgment of the trial Court and remand with instructions to transfer this cause to Lubbock County as prayed for in Defendant’s plea of privilege.