H. E. B. Food Stores v. Mercado

486 S.W.2d 591, 1972 Tex. App. LEXIS 2960
CourtCourt of Appeals of Texas
DecidedOctober 19, 1972
DocketNo. 7417
StatusPublished
Cited by1 cases

This text of 486 S.W.2d 591 (H. E. B. Food Stores v. Mercado) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H. E. B. Food Stores v. Mercado, 486 S.W.2d 591, 1972 Tex. App. LEXIS 2960 (Tex. Ct. App. 1972).

Opinion

KEITH, Justice.

We review a venue appeal involving alleged injuries to a minor child. Mrs. Mercado, along with her two small children, were in defendant’s store shopping. She removed a six-pack carton of soda water from a display stack, noticing as she did so that there were several loose bottles upon the shelf from which she had removed the carton. One of these loose bottles fell, struck a bottle which her daughter Brenda was carrying in her hand, causing it to break and cut Brenda’s leg.

Mrs. Mercado, individually and as next friend of Brenda, sued H.E.B. and Huntress Bottling Company, alleged to be domiciled in Bexar County. H.E.B. filed its plea of privilege to be sued in Nueces County and Huntress answered generally. Plaintiffs controverted the plea of privilege by invoking the provisions of exceptions 4, 9a, and 29a, Art. 1995, Vernon’s Ann.Civ.St. The specific acts of negligence charged by plaintiffs, as summarized in their brief, were: (1) failing to place barricades; (2) failing to place warning signs; (3) failing to provide proper dividing materials between the stacks and tiers of soft drink bottles; (4) failing to regularly inspect the display of soft drink bottles. Additionally, plaintiffs invoked the doctrine of res ipsa loquitur.

Upon the hearing, only Mrs. Mercado testified and the entire statement of facts contains only thirteen pages. Yet, from this meager record, appellant comes forward with eleven points of error complaining of the action of the trial court in overruling its plea of privilege.

No findings of fact or conclusions of law were filed by the trial court and on this appeal from an order overruling the plea of privilege “every reasonable intendment must be resolved in favor of the trial court’s judgment.” James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959).

Mrs. Mercado’s testimony did not connect Huntress with the occurrence in any manner. We have heretofore summarized the acts of negligence contained in the petition and there was no testimony showing what connection, if any, Huntress had with the store, the soda water cartons, or the loose bottles. The only suggestion in our record that Huntress is domiciled in Bexar County is to be found in plaintiffs’ petition. Proof of the residence of one of the defendants in the county where the suit is pending must be made by affirmative proof when plaintiff is relying upon exception 4. “Proof of it is not made by, or by the introduction of, the allegations of the petition or of the controverting affidavit.” Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 (1936); James v. Drye, supra (320 S.W.2d 319, at p. 323).

It was incumbent upon plaintiffs to plead and prove, as a venue fact, that Huntress was domiciled in Bexar County, in order to maintain venue under exception 4. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 761 (1956). The result which we reach is inescapable when we realize that plaintiffs failed to prove another essential venue fact, a bona fide cause of action against Huntress, the alleged resident defendant. See the authorities collated in 1 McDonald, Texas Civil Practice (1965 Rev. Vol.), § 4.10.2, p. 441. It follows that plaintiffs may not maintain venue in Bexar County under exception 4 and we sustain point eight insofar as it relates to this exception.

From the foregoing summary of the pleadings and the evidence, it is appar[594]*594ent that plaintiffs’ reliance upon exception 29a is likewise misplaced. With admirable clarity, McDonald sets out the requirements which must be met in reliance upon exception 29a: “Before exception 29a can apply, four conditions must exist: the action must be against two or more defendants; all of them must reside outside the county of suit; venue must be proper as against at least one of the defendants under some exception to the general venue rule; and the defendant urging his privilege must be a necessary party to the claim against the defendant as to whom venue is proper.” McDonald, supra, § 4.36, p. 544.

In relying upon exception 9a, the negligence subdivision, plaintiffs were required to prove, by a preponderance of the evidence, negligence upon the part of H.E.B. which proximately caused the injuries of the minor plaintiff. This court collated many of the cases with reference to the venue facts necessary for a plaintiff to prove in the case of Sharp v. Salazar, 398 S.W.2d 444, 446 (Tex.Civ.App., Beaumont, 1965, no writ), to which we refer. Additional authorities are also collated in the case of Calhoun v. Padgett, 409 S.W.2d 890, 891 (Tex.Civ.App., Tyler, 1966, no writ).

Giving to Mrs. Mercado's testimony the full weight to which it is entitled, and indulging every reasonable intendment in favor of its sufficiency, plaintiffs succeeded in establishing only that a bottle which had been upon an upper shelf of defendant’s store fell therefrom, struck a bottle which the child was carrying and injured her. However, we have searched the record and can find no evidence which tends to prove (a) who placed the loose bottle upon the shelf; (b) how long it had been present before it fell; (c) any knowledge of the defendant or its agents of its presence on the shelf; or (d) what caused it to fall. As to the latter element, it might be deduced that it was Mrs. Mercado’s act in removing the full carton from the shelf which caused the bottle to fall, but this, too, is conjectural from our record.

The fact that the bottle fell accidentally and injured the child is not dispos-itive, because the mere happening of an accident if not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199 (1937); Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex.1968). In order to maintain venue, the plaintiffs were required to go further and show that it was some negligent act or omission of the defendant, H.E.B., which proximately caused the injury to the child. In this respect, plaintiffs wholly failed to establish by probative evidence, any of the specific acts of negligence alleged in their petition.

Admittedly the plaintiffs were business invitees upon the store premises and we recognize the rule that an occupier of premises holds a duty to use ordinary care to keep his premises in a reasonably safe condition for his invitees, or to warn of the hazard incident to the use thereof. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538, 539 (Tex.1968), citing cases and quoting Restatement of Torts, § 343.

The liability of the storekeeper was not shown in Razey, because there was no evidence that the storekeeper knew the silt and mud were on the walkway before Mrs. Razey fell nor was there evidence that the substance had been on the walkway such a length of time that the storekeeper should have discovered it.

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486 S.W.2d 591, 1972 Tex. App. LEXIS 2960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-e-b-food-stores-v-mercado-texapp-1972.