Kimbell, Inc. v. Roberson, 1181

• Decision Date: 31 August 1978
• Docket Number: No. 1181,1181
• Citation: 570 S.W.2d 587
• Court: Texas Court of Appeals
• Parties: KIMBELL, INC., Appellant, v. Willie ROBERSON, Appellee.

Page 587

570 S.W.2d 587

KIMBELL, INC., Appellant, v. Willie ROBERSON, Appellee.

No. 1181.

Court of Civil Appeals of Texas, Tyler.

Aug. 31, 1978.

Jack W. Flock, Mike Hatchell, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, for appellant.

Jerry L. Calhoon, McDonald, Calhoon & Kolstad, Palestine, for appellee.

MOORE, Justice.

This is an appeal from an order overruling a plea of privilege. Plaintiff Willie Roberson, a resident of Anderson County, Texas, brought suit to recover for personal injuries sustained when he slipped and fell on a food substance on the floor of Buddies Supermarket in Palestine, Texas. Defendant Kimbell, Inc., the owner of the store, filed a plea of privilege to be sued in Tarrant County, the county of its domicile. In reply, plaintiff filed a controverting affidavit alleging that the suit was lawfully maintainable in Anderson County, Texas, under sec. 9a, the "negligence" exception of the Texas Venue Statute, art. 1995, Tex.Rev.Civ.Stat.Ann. After a hearing before the court sitting without a jury, the trial court overruled the plea of privilege and defendant, Kimbell, Inc., duly perfected this appeal.

We reverse and render.

The evidence shows that the plaintiff entered the store in question in the late afternoon of December 19, 1975, for the purpose of purchasing groceries. Traffic in the store was described as being light. Plaintiff testified that about 10 or 15 minutes after he had entered the store and while pushing a grocery cart down one of the aisles, he stepped on a foreign substance on the floor causing his feet to slip from under him and as a result he fell backward and struck the floor, causing him to suffer personal injuries. He conceded that he did not know what the substance was that caused him to fall, but that it appeared to him that it was syrup. He testified that he immediately left the scene and notified the store manager who, after observing the substance, said it looked to him like jelly. Plaintiff further testified that after he fell, he observed two or three other sets of grocery cart tracks which had passed over the substance. Defendant did not offer any testimony at the hearing.

On appeal, defendant contends that the trial court erred in overruling its plea of privilege because plaintiff failed to prove by a preponderance of the evidence the necessary venue facts to sustain venue under the "negligence" exception to the venue statute.

Sec. 9a of art. 1995, supra, provides that "(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."

It is the general rule in Texas that a defendant is entitled to be sued in his own county unless it clearly appears that one of the exceptions set forth in art. 1995, supra, will apply. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951). To sustain venue in a given case it is the plaintiff's burden to allege and prove the venue facts appropriate to the character of the suit alleged. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945); Burrows v. Texas Kenworth Co., 554 S.W.2d 300 (Tex.Civ.App. Tyler 1977, dism'd).

To sustain venue under Exception 9a, the plaintiff must establish the essential elements of a cause of action in negligence by a preponderance of the evidence. 1 McDonald, Texas Civil Practice, sec. 4.17.2, pp. 475-76. In cases of this type, sometimes referred to as "slip and fall" cases, the plaintiff must prove in order to establish liability for negligence that: (1) the defendant placed the substance on the floor; or (2) the defendant knew the substance was on the floor and willfully or negligently failed to remove it, or (3) the substance had been on the floor for such a period of time that, in the exercise of ordinary care, it should have been discovered and removed. 40 Tex.Jur.2d, Rev., Part 2, Negligence sec. 59, p. 246; H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App. San Antonio 1949, err. ref'd); Great Atlantic & Pacific Tea Co. v. Giles, 354 S.W.2d 410 (Tex.Civ.App. Dallas 1962, writ ref'd n. r. e.).

Plaintiff makes no contention that the agents, servants or employees of the defendant either put the substance on the floor or knew that it was there prior to the time he fell. Plaintiff undertakes to sustain the judgment on the theory that the evidence is sufficient to show that the substance had been on the floor for such a period of time that, in the exercise of ordinary care, it should have been discovered and removed. In this regard plaintiff relies on the following testimony given by him on cross-examination.

"Q. You don't know how long it had been on the floor, do you, yourself?

"A. Well no, I don't know exactly how long it had been there. It had been

"Q. Well now, no . . . that's not responsive.

"Q. From your own personal knowledge, do you know how long this stuff had been on the floor?

"A. I will say anywhere from 30 to 40 minutes . . . .

"Q. You had only been in the store 10 or 15 minutes?

"A. Well, I know it."

The record reveals that the plaintiff testified unequivocally on several occasions that he had only been in the store 10 or 15 minutes before the accident occurred and that he did not see the substance on the floor until after he had fallen. He gave no testimony of any facts which would tend to support his conclusion that the substance had been on the floor 30 or 40 minutes....