H. E. Butt Grocery Co. v. Pena, 13088

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Citation: 592 S.W.2d 956
• Docket Number: No. 13088,13088
• Parties: H. E. BUTT GROCERY COMPANY, Appellant, v. Mary PENA, Appellee.
• Decision Date: 16 January 1980

Page 956

592 S.W.2d 956

H. E. BUTT GROCERY COMPANY, Appellant, v. Mary PENA, Appellee.

No. 13088.

Court of Civil Appeals of Texas, Austin.

Jan. 16, 1980.

Karen Parker, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.

Vincent J. Scanio, Jr., Scanio & Scanio, San Marcos, for appellee.

SHANNON, Justice.

This is an appeal from an order overruling appellant's plea of privilege and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, subdivisions 9a and 23 (1964).

Appellee Mary Pena sued appellant H. E. Butt Grocery Company in the county court at law of Hays County for personal injuries. Appellee alleged in her petition that on July 4, 1978, she slipped and fell on a slick spot on the floor of appellant's San Marcos store, thereby causing her injury. Appellee claimed appellant was negligent: (1) in failing to keep the floor in a safe condition; (2) in failing to inspect the floor; and (3) in failing to warn appellee of the slick spot after it knew or should have known of the presence of the slick spot. Such negligence, appellee pleaded, was a proximate cause of her injuries.

Appellant filed a plea of privilege praying that the cause be transferred to Nueces County, the county of its residence. Appellee filed a controverting affidavit relying upon subdivisions 9a and 23.

After trial before the court, judgment was entered overruling appellant's plea of privilege. We will reverse that judgment.

Texas Rev.Civ.Stat.Ann. art. 1995, subdivision 9a (Supp.1978-79) provides:

"Negligence. A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant's residence are:

1. That an act or omission of negligence occurred in the county where suit was filed.

2. That such act or omission was that of the tort-feasor, in person, or that of his servant, agent or representative acting within the scope of his employment, or that of the person whose estate the defendant represents as executor, administrator, or guardian.

3. That such negligence was a proximate cause of plaintiff's injuries."

Subdivision 23, which provides that suits against a corporation may be brought in the county "in which the cause of action or part thereof arose," places the burden on the plaintiff to prove all elements of his cause of action properly arising in the county where suit is filed. Kimbell, Inc. v. Blount, 562 S.W.2d 10 (Tex.Civ.App.1978, no writ).

The duty of the occupier of premises to business invitees includes the duty to use ordinary care to keep the premises in a reasonably safe condition so that the invitee will not be injured. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (Tex.1950). To show a breach of that duty, in a "slip and fall" case involving the presence of a foreign object on the floor of the premises, the plaintiff must prove: (1) that defendant placed the foreign object on the floor; or (2) that defendant knew the object was on the floor and negligently failed to remove it; or (3) that the object had been on the floor for such period of time that it should have been discovered and removed by defendant in the exercise of ordinary care. Missouri, K. & T. Ry. Co. of Texas v. Jones, 103 Tex. 187, 125 S.W. 309 (Tex.1910); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App.1949, writ ref'd n. r. e.); H. E. Butt Grocery Company v. Russell, 391 S.W.2d 571 (Tex.Civ.App.1965, writ ref'd n. r. e.); Kimbel, Inc. v. Blount, Supra.

Appellant's basic complaints are that the judgment overruling its plea of privilege is supported by no evidence or, alternatively, by insufficient evidence. In considering a "no evidence" point of error, the reviewing court must reject all evidence contrary to the judgment and consider only the facts and circumstances that tend to support the judgment. Renfro Drug Co. v. Lewis, Supra. In reviewing factual sufficiency points of error, the court considers all of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951).

Appellee's proof of her claim consisted of her testimony and that of her companions, Gloria Esparza and Alma Juarez. Appellee did not call the store manager or other employees as witnesses. Appellee and her friends entered the store at about 3:30 in the afternoon. Appellee had walked a foot or two through the turnstile when she fell. She did not see anything on the floor prior to falling. After her fall, appelle...