Bearden v. Lyntegar Elec. Co-op., Inc.

Decision Date04 May 1970
Docket NumberNo. 8038,8038
Citation454 S.W.2d 885
PartiesR. S. BEARDEN, Jr., Appellant, v. LYNTEGAR ELECTRIC COOPERATIVE, INC., Appellee.
CourtTexas Court of Appeals

Ray D. Anderson, Brownfield, for appellant.

Albert Smith, and Beau Boulter, Lubbock, Huffaker & Green, Tahoka, for appellee.

JOY, Justice.

This is an appeal from an order sustaining the defendant's plea of privilege. Reversed and remanded.

On August 25, 1968, the plaintiff R. S. Bearden, Jr., resided and conducted a hog feeding business in Terry County. Bearden's hogs were housed in a 'bacon bin' that was climatized. The bacon bin was thermostatically controlled and depended upon electricity for its heating, air conditioning, ventilation, and water supply. About 11:30 a.m. in the morning of August 25, 1968, Bearden and his wife left their home to visit Bearden's brother, who lived approximately 35 miles away. When Bearden and his wife returned home about 10:30 p.m. that evening, they discovered that the electrical power on their premises was off and had been off since about 3:00 p.m. that afternoon Bearden called the defendant Lyntegar Electric Cooperative, Inc., and reported the outage. Lyntegar promptly sent its employees out to Bearden's premises and restored his power. Because of this power failure, Bearden lost 142 hogs from suffocation as a result of the lack of ventilation, and the surviving hogs suffered a considerable loss of weight as a result of the heat.

Bearden filed this suit in Terry County and Lyntegar filed a plea of privilege to be sued in Lynn County, which is the county of its domicile and residence. Bearden then filed his controverting plea contending that this suit was for damages arising out of Lyntegar's alleged negligence, that the negligence occurred in Terry County, that the negligence was a proximate cause of his damages, and thus under § 9a of Art. 1995, Vernon's Ann.Civ.St., venue was proper in Terry County.

To maintain venue under § 9a of Art. 1995, the plaintiff must establish by the preponderance of the evidence that 'an act or omission of negligence occurred in the county where suit was filed.' Bearden has alleged two grounds of negligence. First, he contends that Lyntegar failed to properly inspect its equipment and failed to maintain its equipment in a reasonable state of repair. The record reveals no testimony or evidence concerning the manner in which Lyntegar inspected or maintained its electrical equipment, and so the order of the trial court must be sustained on this point.

Secondly, Bearden contends that as the electrical equipment was in the exclusive control of Lyntegar and as such a failure does not occur in the absence of negligence, Lyntegar should be held negligent under the doctrine of res ipsa loquitur.

In its brief before this court Lyntegar raises the question as to whether the doctrine of res ipsa loquitur can be used to maintain venue under Section 9a of Art. 1995. Section 9a requires that the plaintiff 'establish by the preponderance of the evidence' that 'an act or omission of negligence occurred in the county where suit was filed.'

Negligence may be established by circumstantial as well as direct evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Washington v. Missouri, K. & T. Ry. Co., 90 Tex. 314, 38 S.W. 764 (1897). Res ipsa loquitur is one type of circumstantial evidence. McCormick & Ray, Evidence, § 108. Thus circumstantial evidence (which includes res ipsa loquitur) is just as effective as direct evidence in establishing venue under Section 9a. Boyd v. Thompson-Hayward Chemical Company, 450 S.W.2d 937 (Tex.Civ.App., writ filed).

It is public policy 'of this state that continuous service by public utilities furnishing electric energy, natural or artificial gas, or water to the public is absolutely essential to the life, health and safety of all of the people * * *.' Section 1 of Art. 1446a, R.C.S. While a public utility is not an insurer of continuous service, it will be liable for damages which result from its negligence. Texas Utilities Co. v. Dear, 64 S .W.2d 807 (Tex.Civ.App., writ dism'd); Henneke v. Gasconade Power Co ., 236 Mo.App. 100, 152 S.W.2d 667 (1941); Arkansas Power & Light Co . v. Abboud, 204 Ark. 808, 164 S.W.2d 1000, 143 A.L.R. 297 (1942); Bissel v. Eastern Illinois Utility Co., 222 Ill.App. 408 (1921); Annot., 4 A.L.R.3rd 594 (1965). Furthermore a plaintiff may rely on the doctrine of res ipsa loquitur to infer negligence on the part of a public utility. Texas Utilities Co. v. Dear, Supra.

At issue here is whether the plaintiff established the negligence of Lyntegar in order to maintain venue under Section 9a.

At the hearing the only witnesses called were the plaintiff Bearden and a farmer, Carl Pye. Both were called as witnesses for the plaintiff. The defendant Lyntegar called no witnesses and introduced no evidence. The testimony of Bearden was to the effect that: there were no electrical storms that day to cause the outage; that the trouble was back up the highway on the defendant's lines; that the plaintiff did not have any trouble with his equipment and did not have to repair any of his equipment; that the plaintiff had no control over Lyntegar's electrical lines or equipment up to his barns; and that no one else had any control over the lines except Lyntegar.

When a plaintiff relies on the doctrine of res ipsa loquitur, the plaintiff has the burden of persuasion (or burden of proof). To meet this burden, the plaintiff must establish that '(1) the character of the accident and the circumstances attending it lead reasonably to the belief that in the...

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3 cases
  • Socony Mobil Co., Inc. v. Southwestern Bell Tel. Co.
    • United States
    • Texas Court of Appeals
    • December 31, 1974
    ...the instrumentalities were obviously under the control of the appellant' . We do not agree. Plaintiff relies upon Bearden v. Lyntegar Electric Cooperative, Inc., 454 S.W.2d 885 (Tex.Civ.App.--Amarillo 1970, no The doctrine of res ipsa loquitur is a qualification of the general rule that neg......
  • Brazos Valley Harvestore Systems, Inc. v. Beavers, 899
    • United States
    • Texas Court of Appeals
    • April 8, 1976
    ...installed the 2 4-inch board, the venue facts of subdivision 9a may be established by circumstantial evidence. Bearden v. Lyntegar Electric Cooperative, Inc., 454 S.W.2d 885 (Tex.Civ.App.--Amarillo 1970, n.w.h.); Boyd v. Thompson-Hayward Chemical Co., supra. To establish a fact by circumsta......
  • Shankman v. Consolidated Edison Co.
    • United States
    • New York City Court
    • April 7, 1978
    ...only from gross or wilful negligence. On the contrary, it finds most cogent the reasoning and opinion in Bearden v. Lyntegar Electric Cooperative, Inc., 454 S.W.2d 885, where the Court of Civil Appeals of Texas "The theory of res ipsa loquitur is based partly on the theory that the defendan......

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