CRAMER, Justice.
Appellant’s statement of the nature of the case, which appellee states is substantially correct, is as follows:
“This is a venue case in which appeal has been taken from the overruling of defendant’s plea of privilege. Appellee L. E. Lee, as plaintiff, brought this suit against appellant Picadilly Cafeteria of Waco, Inc., as defendant, for damages for personal injuries to his wife, Mrs. L. E. Lee. Since suit was in Dallas County, defendant filed its plea of privilege in statutory form, asserting its privilege to be sued in McLennan County, its County of residence, where it maintained its principal office and place of business. In addition to the usual allegations, the plea of privilege also sets up a plea of res judicata on the basis of a previous suit upon the same cause of action which was dismissed while the plea of privilege was pending. Plaintiff filed a controverting plea and, after hearing, the District Court en[230]*230tered its judgment overruling defendant’s plea of privilege. From this judgment appeal has been duly perfected to this Honorable Court.”
The record shows Mrs. Lee testified that the matters involved here occurred at the Picadilly Cafeteria located at 1501 Commerce Street and that it is a corporation. It briefs two points of error, in substance error in overruling its plea of privilege for the reason that (1) “venue herein was fixed in McLennan County by the taking of a nonsuit in the previous suit on the same cause of action while a plea of privilege was pending.” (2) Lee failed to prove the existence of a cause of action against appellant which is necessary under both subds. 9a and 23, Art. 1995, Vernon’s Ann.Civ.St.
Appellant’s points are countered that there was no error in the court’s action because (1) the order which dismissed the appeal in the previous suit was in effect an affirmance of the order overruling appellant’s plea of privilege in the previous case. (2) Res judicata is not applicable in a venue case where a nonsuit was taken in a prior case involving the subject matter after a plea of privilege had been filed in such prior case and overruled by the court. (3) Theory of res judicata in a venue case after a nonsuit is taken by plaintiff is not applicable unless the parties are identical or in privity in the cases. (4) The evidence introduced by Lee clearly showed a cause of action against appellant, therefore the trial court did not err in overruling the plea of privilege.
All points and counterpoints will be considered together.
In addition to the statement by appellant we take judicial notice of our own judgments. On March 30, 1956, this Court in the prior suit referred to above and cited by appellant, after acquiring jurisdiction thereof by a properly perfected appeal, entered an order as follows:
“ * * * It is, therefore, considered, adjudged and ordered that this court’s former order setting the cause for submission on the merits be set aside, and that appellees’ motion to dismiss the appeal be sustained, and the appeal is hereby accordingly dismissed without prejudice to appellant’s right again to file its plea of privilege should appel-lees refile their suit and the same venue issue arise; and without prejudice to the right of either party to appeal from an adverse order of the trial court acting on the plea of privilege. * * ⅜»
Our Chief Justice at that time wrote an opinion reported in 289 S.W.2d 790. No motion for rehearing was filed in that proceeding. Under the express terms of the judgment it is final and binding on all parties thereto and in our opinion controls the effect, in this proceeding, of the former judgment here sought to be asserted as res judicata in the present proceeding.
It is not only the duty of this Court to enforce its former order on this appeal, but, if proper application is made therefor, to enforce and protect judgment by proper writ or writs.
Mrs. Lee testified, material here, as follows :
“Q. Mrs. Lee, I direct your attention to August 25th, 1955, and ask you if upon that date you had occasion to visit the premises known as Picadilly Cafeteria which is located at 1501 Commerce Street, here in Dallas, Texas? A. I did.
“Q. What time of the day was it that you went into the Picadilly Cafeteria? A. A little after 4:30 in the afternoon.
“Q. What was the purpose of going there? A. To eat a meal.
“Q. What is the Picadilly Cafeteria? If I may ask, please Ma’am?
[231]*231A. Well it is a place to eat, where they serve meals.
“Q. Did you secure food at the cafeteria? A. I did.
“Q. What particular items did you secure? A. I went down the line and I ordered coconut cream pie, meat loaf, mashed potatoes, a roll and iced tea.
“Q. Did you proceed to consume the same there on the premises? A. I did.
“Q. And what did you do next? If I may ask. A. I went up and paid my check. Paid my bill and walked out and went back to A. Harris’s and went to work.
“Q. All right. After eating the food that you obtained at the Picadilly Cafeteria, did you become ill? A. I took an awful headache around 7, in the afternoon.
“Q. And you ate something like 4:30 in the afternoon? A. 4:30 in the afternoon.
“Q. At 7 o’clock. A. I began to have an awful headache and felt nauseated. But I worked on until 9.
“Q. Was that the normal quitting time, at 9 o’clock? A. Yes.
“Q. What day of the week was this? A. On a Thursday evening.
“Q. On Thursday you worked from what hours ? A. 12:30 till 9.
“Q. And so you became ill around 7 o’clock in the evening? A. Took this headache and around 9:30 I started home.
“Q. Did you leave your place of employment at 9 o’clock? A. Yes, I did.
“Q. And where did you go? A. I went over and caught the bus and went home.
“Q. Did you feel ill upon the bus, while you were riding on the bus ? A. I still had the headache. My head — it seemed like it just got worse all in the afternoon and when I stepped off the bus I became nauseated — very nauseated and I had to walk 2½ blocks to my home and by the time I got there I hardly knew what I was doing I was so nauseated. And I hardly got my clothes off until I started vomiting.
“Q. Did you vomit before you got home? A. No I did not.
“Q. Did you — did anyone meet you at the bus? A. My husband did.
“Q. Did you make complaint to him — A. Yes, I did.
“Q. Of this nauseation? A. I did.
“Q. After you got home did you try any kind of medication? A. I told my husband to bring me some warm salt water and let me drink that and see if I could vomit everything in me up. I was just about to die.
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CRAMER, Justice.
Appellant’s statement of the nature of the case, which appellee states is substantially correct, is as follows:
“This is a venue case in which appeal has been taken from the overruling of defendant’s plea of privilege. Appellee L. E. Lee, as plaintiff, brought this suit against appellant Picadilly Cafeteria of Waco, Inc., as defendant, for damages for personal injuries to his wife, Mrs. L. E. Lee. Since suit was in Dallas County, defendant filed its plea of privilege in statutory form, asserting its privilege to be sued in McLennan County, its County of residence, where it maintained its principal office and place of business. In addition to the usual allegations, the plea of privilege also sets up a plea of res judicata on the basis of a previous suit upon the same cause of action which was dismissed while the plea of privilege was pending. Plaintiff filed a controverting plea and, after hearing, the District Court en[230]*230tered its judgment overruling defendant’s plea of privilege. From this judgment appeal has been duly perfected to this Honorable Court.”
The record shows Mrs. Lee testified that the matters involved here occurred at the Picadilly Cafeteria located at 1501 Commerce Street and that it is a corporation. It briefs two points of error, in substance error in overruling its plea of privilege for the reason that (1) “venue herein was fixed in McLennan County by the taking of a nonsuit in the previous suit on the same cause of action while a plea of privilege was pending.” (2) Lee failed to prove the existence of a cause of action against appellant which is necessary under both subds. 9a and 23, Art. 1995, Vernon’s Ann.Civ.St.
Appellant’s points are countered that there was no error in the court’s action because (1) the order which dismissed the appeal in the previous suit was in effect an affirmance of the order overruling appellant’s plea of privilege in the previous case. (2) Res judicata is not applicable in a venue case where a nonsuit was taken in a prior case involving the subject matter after a plea of privilege had been filed in such prior case and overruled by the court. (3) Theory of res judicata in a venue case after a nonsuit is taken by plaintiff is not applicable unless the parties are identical or in privity in the cases. (4) The evidence introduced by Lee clearly showed a cause of action against appellant, therefore the trial court did not err in overruling the plea of privilege.
All points and counterpoints will be considered together.
In addition to the statement by appellant we take judicial notice of our own judgments. On March 30, 1956, this Court in the prior suit referred to above and cited by appellant, after acquiring jurisdiction thereof by a properly perfected appeal, entered an order as follows:
“ * * * It is, therefore, considered, adjudged and ordered that this court’s former order setting the cause for submission on the merits be set aside, and that appellees’ motion to dismiss the appeal be sustained, and the appeal is hereby accordingly dismissed without prejudice to appellant’s right again to file its plea of privilege should appel-lees refile their suit and the same venue issue arise; and without prejudice to the right of either party to appeal from an adverse order of the trial court acting on the plea of privilege. * * ⅜»
Our Chief Justice at that time wrote an opinion reported in 289 S.W.2d 790. No motion for rehearing was filed in that proceeding. Under the express terms of the judgment it is final and binding on all parties thereto and in our opinion controls the effect, in this proceeding, of the former judgment here sought to be asserted as res judicata in the present proceeding.
It is not only the duty of this Court to enforce its former order on this appeal, but, if proper application is made therefor, to enforce and protect judgment by proper writ or writs.
Mrs. Lee testified, material here, as follows :
“Q. Mrs. Lee, I direct your attention to August 25th, 1955, and ask you if upon that date you had occasion to visit the premises known as Picadilly Cafeteria which is located at 1501 Commerce Street, here in Dallas, Texas? A. I did.
“Q. What time of the day was it that you went into the Picadilly Cafeteria? A. A little after 4:30 in the afternoon.
“Q. What was the purpose of going there? A. To eat a meal.
“Q. What is the Picadilly Cafeteria? If I may ask, please Ma’am?
[231]*231A. Well it is a place to eat, where they serve meals.
“Q. Did you secure food at the cafeteria? A. I did.
“Q. What particular items did you secure? A. I went down the line and I ordered coconut cream pie, meat loaf, mashed potatoes, a roll and iced tea.
“Q. Did you proceed to consume the same there on the premises? A. I did.
“Q. And what did you do next? If I may ask. A. I went up and paid my check. Paid my bill and walked out and went back to A. Harris’s and went to work.
“Q. All right. After eating the food that you obtained at the Picadilly Cafeteria, did you become ill? A. I took an awful headache around 7, in the afternoon.
“Q. And you ate something like 4:30 in the afternoon? A. 4:30 in the afternoon.
“Q. At 7 o’clock. A. I began to have an awful headache and felt nauseated. But I worked on until 9.
“Q. Was that the normal quitting time, at 9 o’clock? A. Yes.
“Q. What day of the week was this? A. On a Thursday evening.
“Q. On Thursday you worked from what hours ? A. 12:30 till 9.
“Q. And so you became ill around 7 o’clock in the evening? A. Took this headache and around 9:30 I started home.
“Q. Did you leave your place of employment at 9 o’clock? A. Yes, I did.
“Q. And where did you go? A. I went over and caught the bus and went home.
“Q. Did you feel ill upon the bus, while you were riding on the bus ? A. I still had the headache. My head — it seemed like it just got worse all in the afternoon and when I stepped off the bus I became nauseated — very nauseated and I had to walk 2½ blocks to my home and by the time I got there I hardly knew what I was doing I was so nauseated. And I hardly got my clothes off until I started vomiting.
“Q. Did you vomit before you got home? A. No I did not.
“Q. Did you — did anyone meet you at the bus? A. My husband did.
“Q. Did you make complaint to him — A. Yes, I did.
“Q. Of this nauseation? A. I did.
“Q. After you got home did you try any kind of medication? A. I told my husband to bring me some warm salt water and let me drink that and see if I could vomit everything in me up. I was just about to die. And he brought me a glass of warm salt water and I drank that and then I began to just vomit one time right after another and I just continued to get sicker and sicker and sicker, and he called the doctor, and then he told him to give me warm soda water and I drank warm soda water.
“Q. The doctor gave instructions which were given to you ? A. That’s right. And they would get the soda water down me as much as they could between the times I was vomiting and going to the bathroom and I got to where I couldn’t get to the bathroom any further. I would just faint and pass out. And I finally got just beyond knowing anything.
“Q. Mrs. Lee, when you went into the Picadilly Cafeteria ' did you see them prepare the food? A. No, I didn’t.
[232]*232“Q. You just went in and ordered — A. Ordered cafeteria style.
“Q. Cafeteria style? A. Yes.
“Q. You have no knowledge of any of the manners in which they prepared — A. No.
“Q. —the food? A. I do not.
“Q. And it was just served to you across the counter? A. That’s right.
“Q. Had you eaten at the Picadilly Cafeteria before? A. One time before. They were very new and I had eaten there once before.
“Q. One time before. A. Yes.
“Q. That is all. * * *
“(On cross-examination) Q. What else did you eat or drink, if anything, that day? A. I ate my breakfast at home that morning about 8, and I didn’t eat anything else that day.
“Q. Did you drink anything else that day? A. Nothing but just some water out of the hydrant at the store.
“Q. Pass the witness. A. I had to leave home about 12 in the day to get to work.
“Q. That is all.”
Dr. Bradfield testified by deposition of his being called to treat Mrs. Lee. That she had objective symptoms of extreme nausea, frequency of bowel movements, abdominal cramping, pain, extreme prostration, sweating, and a pallor appearance. She told him while she was on the emergency room table at the hospital that she had eaten at the defendant’s establishment, detailing the items she had eaten, and told him when she had eaten there. He concluded that she was suffering from food poisoning and that the food eaten at defendant’s cafeteria was the cause of the poisoning.
Such evidence made out a prima facie showing of appellee’s right to maintain suit in Dallas County.
Under such record and the recital of Judge Dixon as follows, “Therefore our order dismissing the appeal will be without prejudice to appellant’s right again to file its plea privilege should appellees refile their suit and the same venue issue arise; and without prejudice to the right of either party to appeal from an adverse order of the trial court acting on the plea of privilege,” we must overrule appellant’s points and sustain appellee’s counterpoints.
Finding no reversible error in appellant’s points, the trial court’s judgment is
Affirmed.