H. E. B. Food Stores v. Slaughter

• Decision Date: 07 September 1972
• Docket Number: No. 693,693
• Citation: 484 S.W.2d 794
• Parties: H. E. B. FOOD STORES v. I. B. SLAUGHTER et ux.
• Court: Texas Court of Appeals

Page 794

484 S.W.2d 794

H. E. B. FOOD STORES v. I. B. SLAUGHTER et ux.

No. 693.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 7, 1972.

Rehearing Denied Sept. 27, 1972.

Adams, Graham, Lewis, Jenkins & Graham, John E. Lewis, McAllen, for appellant.

Kelley, Looney, McLean & Alexander, Ralph L. Alexander, Edinburg, for appellees.

OPINION

NYE, Chief Justice.

This is a slip and fall case. The trial court overruled the defendant's plea of privilege. The issue is whether plaintiffs have proved a cause of action against the defendant corporation to sustain venue under Subsections 9a and 23 of Article 1995.

This case was brought by the plaintiffs for personal injuries allegedly sustained by plaintiff's wife when she slipped and fell in the defendant's grocery store in Edinburg, Hidalgo County, Texas. Plaintiffs alleged that on July 3, 1970 while the wife was shopping for groceries in the defendant's store, she slipped and fell on loose grapes and water which were on the floor causing her to have severe personal injuries to her body proximately caused by the negligence of the defendant. It was stipulated that the defendant was a Texas corporation whose resident home office and principal place of business was in Nueces County and it operated its store with a resident manager in Edinburg, Hidalgo County.

The defendant's first and second points of error urge that there is no evidence, or alternatively, the greater weight and preponderance of the evidence was insufficient to support the implied findings of the trial court that the negligence of the defendant or its employees was a proximate cause of plaintiffs' damages.

The rule in Texas is that the occupier of premises owes a duty to use ordinary care to keep his premises in a reasonably safe condition for his invitees, or to warn them of any hazard. This duty requires him to inspect and discover dangerous conditions. He is required to protect his invitees from danger of which he, the occupier, knows or (because of his duty to inspect) should know in the exercise of ordinary care. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963).

In a slip and fall suit the plaintiff must establish that: (1) The defendant put the substance on the floor; or (2) the defendant knew that the foreign substance was on the floor and willfully or negligently failed to remove it; or (3) that the foreign substance had been on the floor for such a period of time that it would have been discovered and removed by defendant in the exercise of ordinary care. H. E. Butt Grocery Company v. Marroquin, 466 S.W.2d 837 (Tex.Civ.App.--San Antonio 1971), and authorities cited therein.

The plaintiff testified that she was in the store shopping and was walking in the produce area of the store when all of a sudden her feet 'shot out' from under her. She fell down very hard in a sitting position. It was stipulated that the plaintiff fell in the defendant's store and sustained injuries to her person. Plaintiff testified that she immediately looked around to see what had caused her fall. She saw streaks on the floor and loose grapes in the same area. Her dress was wet and smeared with dirty water. In describing the size of the puddles of water she stated that there was no puddle large enough that she would have seen it and walked around it,--'just small, little puddles of water like maybe would run out and be swept off but they were still little puddles of water.' She elaborated that the streaks of water looked like they had been swept through. She had not seen the grapes or the puddles of water before falling. She did not know that either was on the floor. She testified also that she had not known how long the grapes had been on the floor or how they had gotten there.

There is no evidence here that the defendant or its employees put the substances on the floor. If plaintiffs are to prevail it must be on the basis that the defendant's employees knew that the substances were on the floor and negligently failed to remove them, or that the substances had been on the floor for such a period of time that the defendant's employees, in the exercise of ordinary care, would have discovered and removed them. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948); H. E. Butt Grocery Company v. Russell, 391 S.W.2d 571 (Tex.Civ.App.--Waco 1965, ref. n. r. e.); Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410 (Tex.Civ.App.--Dallas 1962, ref. n. r. e.).

The plaintiff had the burden of proving the venue facts by a preponderance of the evidence. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935). Our Supreme Court in the case of James v. Drye, 159 Tex. 321, ...