Athens Canning Co. v. Ballard
| Decision Date | 14 February 1963 |
| Docket Number | No. 14073,14073 |
| Citation | 365 S.W.2d 369 |
| Parties | ATHENS CANNING COMPANY, Appellant, v. M. L BALLARD, Appellee. |
| Court | Texas Court of Appeals |
Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Blake Tartt, Sam H. Hood, Jr., Houston, of counsel, for appellant.
F. F. Benton, Houston, Burris, Benton & Zwiener, Houston, of counsel, for appellee.
This is a plea of privilege case. The appellee filed suit against appellant to recover damages sustained by his wife from injuries suffered by her as a result of having bitten a burr which was allegedly contained in a can of purple hull peas packaged in a tin can by appellant. The theories of liability were breach of implied warranty, negligence, and application of the doctrine of res ipsa loquitur. Appellant filed its plea of privilege, asserting the right to be sued in Henderson County, the county where it has its principal office. Appellee seeks to maintain venue in Harris County under Subdivision 23 of Article 1995, Vernon's Ann.Tex.Civ.St., providing, among other things, that suit may be maintained against a corporation in the county where the cause of action or a part thereof arose.
Trial was to the court without a jury. The court overruled the plea.
There are no findings of fact or conclusions of law. The facts relied on by appellee to establish his case occurred in Harris County. The only question we have is whether such facts are sufficient to establish, by a preponderance of the evidence, that the burr was in the peas when packaged by appellant.
Appellee and his wife were the only witnesses. Mrs. Ballard testified that on November 6, 1961, she purchased the can of peas at the Florine Super Market in Houston. The can was taken from a shelf in the store and it was sealed. She took the peas home and opened one of the cans and fixed the peas for dinner. She put the peas in a clean boiler, seasoned them and warmed them. There was no foreign matter of any kind in the boiler. As she was eating dinner, as she ate some of the peas she bit down on a burr. It stuck in her nouth and cut her mouth. She had to be treated by a doctor. Every step in the preparation of the peas was done by her alone. After putting them on the stove she did not walk away from them. For this dinner she also prepared steak and mashed potatoes. She, her husband, and 8 year old son ate together. She put peas, steak and mashed potatoes on the table. The steak, peas and mashed potatoes were not mixed. Prior to biting down on the burr she had taken several bites of the meat, potatoes and peas. The meat, potatoes, and peas were not mixed on her plate. They were all on the plate. They had been cooked on the stove at the same time through in different containers. At the time she took the bite of peas and bit down on the burr she had no other food in her mouth. In cooking she had seasoned them with a little salt, pepper and shortening (not becon).
Mr. Ballard testified he saw Mrs. Ballard open the can and put the peas in the aluminum pot. He also corroborated her as to the fact she bit down on the burr. Also, he testified the meat, peas and potatoes were all put on her plate.
The essence of appellant's position is that the above testimony does not show by a preponderance of the evidence that the burr was in the can of peas, but it could just as well have come from the meat, potatoes, salt, pepper or shortening.
The burden is, of course, on appellee to show by a preponderance of the evidence that the burr was in the can of peas. There is no direct evidence of this because no one saw the burr in the peas when the can was opened and the contents poured into the pan. A fact, however, may be established by circumstantial evidence. The circumstantial evidence is sufficient if on a basis of probabilities it establishes the existence of the ultimate fact. Collier v. Hill and Hill Exterminators, Tex.Civ.App., 322 S.W.2d 329, 73 A. L. R.2d 1141, C.C.A.; Bock v. Fellman Dry Goods Co., 212 S.W. 635, Tex.Com.App.
We have reached the conclusion that the circumstances in evidence are sufficient to show that on a basis of probability the burr was in the can of peas when it was purchased. The peas were taken from a sealed can and put in a pan which was free from any foreign...
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...1951, 243 S.W.2d 874 (no writ history); Campbell Soup Co. v. Ryan, Tex. Civ.App. 1959, 328 S.W.2d 821; Athens Canning Co. v. Ballard, Tex.Civ.App. 1963, 365 S.W.2d 369. In three cases involving exploding bottles the Courts of Civil Appeals denied recovery on the ground that the social polic......
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...1936, 90 S.W.2d 920; Roosth & Genecov Production Co. v. White, 1953, 152 Tex. 619, 262 S.W.2d 99. 14 E. g., Athens Canning Co. v. Ballard, Tex.Civ.App., 1963, 365 S.W.2d 369; Charles Pfizer & Co. v. Branch, Tex. Civ.App., 1963, 365 S.W.2d 832; Coca-Cola Bottling Co. of Fort Worth v. Smith, ......
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