Navarro County Elec. Co-op., Inc. v. Prince

• Citation: 640 S.W.2d 398
• Decision Date: 16 September 1982
• Docket Number: No. 10-82-074-CV,10-82-074-CV
• Parties: 34 UCC Rep.Serv. 1521 NAVARRO COUNTY ELECTRIC COOPERATIVE, INC., Appellant, v. Reverend James G. PRINCE, Appellee.
• Court: Court of Appeals of Texas

Page 398

640 S.W.2d 398

34 UCC Rep.Serv. 1521

NAVARRO COUNTY ELECTRIC COOPERATIVE, INC., Appellant, v. Reverend James G. PRINCE, Appellee.

No. 10-82-074-CV.

Court of Appeals of Texas,

Waco.

Sept. 16, 1982.

Beverly Willis, Naman, Howell, Smith & Lee, P.C., Waco, for appellant.

Joe Michael Russell, Smith, Ralston, Russell & Wright, Corsicana, for appellee.

OPINION

CHASE, Justice.

This is a venue case in which the Navarro County Electric Cooperative, Inc. appeals from an order of the District Court of Freestone County, Texas, overruling its plea of privilege to be sued in the county of its residence, Navarro County.

The record reflects that the Appellee lived in a mobile home located adjacent to a children's home he was constructing in Freestone County, Texas.

Located above the mobile home was a high voltage electrical transmission line carrying some 7200 volts of electricity. This was not the line which served the mobile home, since there were other wires leading from a transformer to the mobile home.

While adjusting a television antenna beside the mobile home and underneath the high voltage electric transmission line, Appellee received an electric shock from which he received injuries and brought suit against the Appellant in Freestone County, Texas.

Appellant filed a plea of privilege to be sued in the county of its residence, Navarro County, Texas, and Appellee filed a controverting affidavit under Sections 23 and 31 of Article 1995 VATS (1955).

Section 23 provides that suits against a private corporation may be brought (1) in the county in which its principal office is situated or (2) the county in which the cause of action or part thereof arose, or (3) in the county in which the plaintiff resided at the time the cause of action or a part thereof arose, provided that such corporation, has an agency or representative in such county.

(1) is not applicable since the record clearly shows that the principal office of the Appellant is not in Freestone County, Texas. The record is clear that Appellee resides in Freestone County, Texas but there is a rather confused attempt at stipulating the agency or representative question. But, be that as it may, the plaintiff has the burden to prove a cause of action so as to come under either of (2) or (3). This Appellee sought to do by alleging Appellant had violated Article 2.314 of the Texas Business and Commerce Code in connection with Appellee's purchase of electricity from Appellant for use in his mobile home.

Article 2.314 of the Texas Business and Commerce Code provides:

"(a) Unless excluded or modified (Section 2.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....

"(b) Goods to be merchantable must be at least such as

(1) pass without objection in the trade under the contract description; and

(2) in the case of fungible goods, are of fair average quality within the description; and

(3) are fit for the ordinary purpose for which such goods are used; and

(4) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(5) are adequately contained, packaged, and labeled as the agreement may require; and

(6) conform to the promises or affirmations of fact made on the container or label if any ..."

Appellee alleged that by virtue of Section 2.314 of the Business and Commerce Code there arose in connection with the purchase of electricity by Appellee, an implied warranty that the electricity was fit for the purpose for which it was to be used. More specifically that the implied warranty of merchantability extended to the container of the product, the wiring, in that it was unfit for the purpose of transporting electricity from the Appellant to the Appellee's property. Appellee testified that he did not believe he hit the wire and that the electric current jumped from the transmission line to the aerial.

It is Appellant's contention that Section 2.314 is not applicable because there was no transaction or sale involved and that the electricity with which the plaintiff allegedly came in contact was not being sold to the Appellee but was being transmitted along its high voltage lines to later be distributed through a transformer to various outlets. In support of this position Appellant cites Hedges v. Public Service Company of Indiana, Inc., 396 N.E.2d 933 (Ct.App. Indiana 1979) in which the Indiana Court held inapplicable a similar section of the UCC where the injury was produced by coming in contact with a 7200 volt power line which was used to transmit high voltage electricity and not used for the purpose of metering the electricity in making a sale thereof.

Section 2.102 of the Business and Commerce Code setting forth the scope of the chapter on sales states "Unless the context otherwise requires, this chapter applies to transactions in goods ..."

Section 2.105 defines goods "(a) 'Goods' means all things (including specifically manufactured goods) which are movable at the time of identification to the contract for...