Kimbell, Inc. v. Blount

• Decision Date: 18 January 1978
• Docket Number: No. 12629,12629
• Citation: 562 S.W.2d 10
• Parties: KIMBELL, INC., d/b/a Buddie's Grocery Store, Appellant, v. James M. BLOUNT, Appellee.
• Court: Texas Court of Appeals

Page 10

562 S.W.2d 10

KIMBELL, INC., d/b/a Buddie's Grocery Store, Appellant, v. James M. BLOUNT, Appellee.

No. 12629.

Court of Civil Appeals of Texas, Austin.

Jan. 18, 1978.

Louis S. Muldrow, Naman, Howell, Smith, Lee & Muldrow, Waco, for appellant.

William O. Whitehurst, Jr., Kidd, Whitehurst & Rohn, Austin, for appellee.

O'QUINN, Justice.

James M. Blount brought this suit in district court of Bell County to recover damages growing out of personal injuries alleged to have been sustained when Blount slipped and fell on the floor of a grocery store in Killeen owned and operated by Kimbell, Inc., doing business as Buddie's Grocery Store, which was domiciled in Tarrant County.

Kimbell filed its plea of privilege to be sued in Tarrant County, and Blount filed his controverting affidavit. Upon hearing, the trial court overruled Kimbell's plea of privilege, from which order Kimbell has appealed. We will reverse the trial court's judgment and render judgment that the plea be sustained and the cause be transferred to district court of Tarrant County.

By the controverting affidavit, Blount sought to retain venue in Bell County under Subdivisions 9a and 23 of Article 1995, V.A.C.S. It was the burden of Blount, as plaintiff, to plead specifically and prove the facts relied on to bring the case within one of the exceptions of Article 1995. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). It is settled that Blount had the burden to prove a cause of action against Kimbell to maintain suit in Bell County under both Subdivisions 9a and 23. Furr's Super Market, Inc. v. Jernigan, 380 S.W.2d 193, 194 (Tex.Civ.App. Amarillo 1964, no writ), and cases there compiled.

Venue facts required to be proved in this case, under Subdivision 9a, were (1) that an act or omission of negligence occurred in Bell County where suit was filed, (2) that the act or omission was that of Kimbell by its servant, agent or representative, acting within the scope of employment, and (3) that such negligence was a proximate cause of plaintiff's injury. Watkins v. Goolsby, 337 S.W.2d 363 (Tex.Civ.App. Eastland 1960, no writ).

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 plaintiff to prove all elements of his cause of action properly arising in the county where suit is brought. Teague Brick & Tile Co. v. Snowden, 440 S.W.2d 419, 422 (Tex.Civ.App. Houston (14th Dist.) 1969, no writ); Socony Mobil Co. v. Southwestern Bell Tel. Co., 518 S.W.2d 257, 267 (Tex.Civ.App. Corpus Christi 1974, no writ); Wright v. Climatic Air Sales, Inc., 527 S.W.2d 518, 520 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ).

In actions designated "slip and fall cases," plaintiff has the burden to prove (1) that defendant placed the foreign substance on the floor, or (2) defendant knew the substance was on the floor and negligently failed to remove it, or (3) that the substance had been on the floor for such period of time it would have been discovered and removed by defendant in the exercise of ordinary care. Plaintiff must discharge the burden by proving, either by direct or circumstantial evidence, the elements necessary to support the allegations of negligence. J. Weingarten, Inc. v. Tyra, 381 S.W.2d 215, 218 (Tex.Civ.App. Tyler 1964, no writ); Brookshire Bros., Inc. v. Cherry, 387 S.W.2d 108 (Tex.Civ.App. Tyler 1965, writ ref'd n.r.e.); H. E. Butt Grocery Company v. Russell, 391 S.W.2d 571 (Tex.Civ.App. Waco 1965, writ ref'd n.r.e.).

Blount testified that he went into defendant's grocery store in the late afternoon or early evening of Christmas Eve, in 1974, to buy groceries, and after he had "parked the car, and walked over towards the egg counter," his "feet shot out from under me or something, substance that was slick." Blount added, "I don't know what it was. I didn't see nothing. And I fell, broke this arm and injured my back."

On cross examination, Blount admitted he never at any time saw any liquid or substance on the floor, neither saw, felt, smelled, nor by any other sense, could say of his own personal knowledge that...