Pepsi-Cola Co. v. Spangler

• Decision Date: 08 March 1966
• Docket Number: No. 7728,PEPSI-COLA,7728
• Citation: 401 S.W.2d 923
• Parties: COMPANY, Appellant, v. Judy SPANGLER and Robert Spangler, Appellees. . Texarkana
• Court: Texas Court of Appeals

Page 923

401 S.W.2d 923

PEPSI-COLA COMPANY, Appellant, v. Judy SPANGLER and Robert Spangler, Appellees.

No. 7728.

Court of Civil Appeals of Texas Texarkana.

March 8, 1966.

Rehearing Denied April 12, 1966.

William L. Peek, Jr., Wheeler, Watkins, Hubbard & Patton, Victor Hlavinka, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.

Harkness & Friedman, Texarkana, for appellees.

CHADICK, Chief Justice.

This is a venue case. The trial court denied a plea of privilege and such order is reversed and the case remanded.

Together with her husband, Judy Spangler filed suit in a District Court of Bowie County, Texas, against the Great Atlantic & Pacific Tea Company and The Pepsi-Cola Company, alleging both were foreign corporations with permits to do business in the State of Texas. A common law negligence action to secure damages for personal injuries was plead. The implication of the trial court order is that venue of the suit in Bowie County is authorized by Subdivisions 3, 23, and 29a of Art. 1995, Vernon's Ann.Tex.Civ.St.

Mrs. Judy Spangler, as a business invitee, was shopping in the Great Atlantic & Pacific Tea Company's store in Philadelphia, Pennsylvania, on July 28, 1963; she selected and lifted a carton of bottled soft drinks labeled Pepsi-Cola from a display rack. One or more bottles in the carton exploded as she moved the carton, and the glass therefrom injured her to some extent. The testimony admitted in support of Bowie County venue was that Mr. and Mrs. Spangler were residents of Bowie County on July 18, 1963, and that on such date and at the time of trial there was a Pepsi-Cola Plant in Bowie County.

The Pepsi-Cola Company, a Delaware corporation with a permit to do business in Texas, for venue purposes is resident in Dallas County where it maintains an office and by the general venue provision of Art. 1995 is entitled to claim the privilege of being sued in Dallas County unless suit elsewhere is authorized by an exception to the general rule of venue. Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576; Taylor v. Wilson, 99 Tex. 651, 93 S.W. 109; Oakland Motor Car Co. v. Jones (Tex.Civ.App.) 29 S.W.2d 861 (mandamus denied, Jones v. Hickman (Tex.Com.App.) 121 Tex. 405, 48 S.W.2d 982); American Fidelity & Casualty Co. v. Windham (Tex.Civ .App.) 59 S.W.2d 259, no writ. The general venue privilege of being sued in Dallas County yields in this instance to the special venue provisions of Subd. 23, Art. 1995, if the evidence herein establishes a factual environment in which Subd. 23 functions. The evidence will be examined and previous decisions studied to determine the effect of Subdivision 23 in this case.

Testimony that a Pepsi-Cola plant was located in Bowie County July 18, 1963, and at the time of trial might be construed as proof that the Pepsi-Cola Company had one or more employees at its plant in the county on July 18, 1963, and thereafter. The duties of the employees, if any, are not inferable from this meager testimony. An employee or servant is not necessarily an agent or representative, as these latter terms are used in Subd. 23. This distinction is made in Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, and Brazos River Trans. Elec. Cooperative, Ins. v. Vilbig (Tex.Civ.App.) 244 S.W.2d 266, Writ Ref., N.R.E. See also 1 McDonald's Texas Civil Practice, Sec. 4.30.3. A subdivision 23 agent or representative is shown by proof of '* * * a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that...