Dairy Queen Stores, Inc. v. Silva

Decision Date20 May 1977
Docket NumberNo. 1145,1145
Citation552 S.W.2d 543
PartiesDAIRY QUEEN STORES, INC., Appellant, v. Ricarlo SILVA and Sylvia Silva, Appellees.
CourtTexas Court of Appeals
OPINION

NYE, Chief Justice.

This is a venue case. Ricardo and Sylvia Silva brought suit in Cameron County against Dairy Queen Stores, Inc. for damages allegedly sustained as a result of the consumption of contaminated food sold to the Silvas by the appellant's San Benito store. Dairy Queen Stores, Inc. filed its plea of privilege to be sued in Dallas County, Texas, where it allegedly has its domicile and principal place of business in Texas. The Silvas controverted the plea and sought to maintain venue in Cameron County under the provisions of Subdivisions 9a, 23 and 31, Article 1995, Vernon's Rev.Civ.Stat.Ann. (Sup.1976). Following a non-jury hearing, the plea of privilege was overruled. Dairy Queen Stores, Inc. has perfected appeal from this action by the trial court to this Court.

The facts surrounding this controversy are as follows. On the morning of April 19, 1975, the Silvas awoke and spent the morning watching television and cleaning house. At approximately 1:30 p. m., the Silvas and their daughter left their house to do some local shopping. At approximately 3:30 that afternoon, they stopped at the Dairy Queen Store in San Benito and ordered a hamburger. After picking up their purchase, they drove to a local park where Mrs. Silva consumed almost the entire hamburger except for one bite which she gave to Mr. Silva. The Silvas returned home at approximately 4:30 p. m. and fell asleep. At approximately 6:00 p. m., Mr. Silva awoke experiencing discomfort which included diarrhea. Shortly thereafter, his wife also awoke complaining she was dizzy, had cramps, nausea and diarrhea. These symptoms persisted to such an extent that Mr. Silva took his wife to a local hospital where she was admitted and remained for four days. Both of the Silvas testified the only food they consumed between the time they awoke and the onset of the illness was the hamburger purchased from appellant's store.

The appellant brings three points of error to this Court. Appellant's first point is that there was no evidence of any negligence by them in Cameron County as required by Subdivision 9a of Article 1995. Appellant's second point is that there is insufficient evidence of a cause of action in Cameron County or that appellant had an agent or representative in Cameron County and finally, that there was insufficient evidence of a breach of warranty by appellant.

In order to sustain venue under Subdivision 9a of Article 1995, the plaintiff must establish: 1) that an act or omission of negligence occurred in the county where suit was filed; 2) such act or omission was that of defendant, or his servant, agent or representative acting within the scope of his employment; and 3) such negligence was a proximate cause of defendant's injury. Heldt v. McCreary, 399 S.W.2d 181 (Tex.Civ.App. Corpus Christi 1966, no writ); Calhoun v. Padgett, 409 S.W.2d 890 (Tex.Civ.App. Tyler 1966, no writ); Shelburne v. Christi-Hickman Drilling Company, 295 S.W.2d 476 (Tex.Civ.App. Amarillo 1956, no writ).

Appellee contends that negligence was proven under the doctrine of res ipsa loquitur. Res ipsa loquitur is simply a rule of evidence whereby negligence may be inferred upon proof of certain factors. These factors are: 1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and 2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.Sup.1974); Owen v. Brown,447 S.W.2d 883 (Tex.Sup.1969); Bond v. Otis Elevator Company, 388 S.W.2d 681 (Tex.Sup.1965); Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App. Corpus Christi 1974, no writ). The first factor is necessary to support the inference of negligence and the second factor is necessary to support the inference that the defendant was the negligent party. See Bond v. Otis Elevator Company, supra. The following quote from Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815 (1913) has been quoted with approval by many of the courts of this State:

"In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff."

See Mobil Chemical Company v. Bell, supra. The effect of successfully invoking the res ipsa doctrine is that the plaintiff can overcome "no-evidence" procedural challenges. He has, by successfully invoking the doctrine, produced some evidence of the defendant's negligence. Mobil Chemical Company v. Bell, supra. The plaintiff, however, is still in the same position as any other plaintiff who has made out a case for the finder of fact. No presumption of the defendant's negligence arises; the finder of fact is merely free to infer negligence. See Sudduth v. Commonwealth County Mutual Insurance Company, 454 S.W.2d 196 (Tex.Sup.1970).

In order to rely on the res ipsa doctrine, the plaintiff must produce some evidence from which the finder of fact can conclude by a preponderance of the evidence, that both the "type of accident" and "control" factors are present. This is not so much a rule of law as it is a rule of logic. Unless these factors are present, the finder of fact cannot reasonably infer from the circumstances of the occurrence that the defendant was negligent. In a great many cases, the plaintiff can rely upon general knowledge to prove that the occurrence in question is the type of occurrence which does not ordinarily happen in the absence of negligence. Mobil Chemical Company v Bell, supra. Marrs, Res Ipsa Loquitur in Texas, 26 Texas L.Rev. 260-263 (1948); Owen v. Brown, supra. Mere proof of an injury, in the absence of proof of the manner in which it was received and the circumstances attending the occurrence thereof, is...

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