Southerland Beauty Shops, Inc. v. Foreman

• Decision Date: 25 September 1958
• Docket Number: No. 13289,13289
• Citation: 319 S.W.2d 737
• Parties: SOUTHLAND BEAUTY SHOPS, INC., Appellant, v. Gladys FOREMAN et vir, Appellees.
• Court: Texas Court of Appeals

Page 737

319 S.W.2d 737

SOUTHLAND BEAUTY SHOPS, INC., Appellant, v. Gladys FOREMAN et vir, Appellees.

No. 13289.

Court of Civil Appeals of Texas, Houston.

Sept. 25, 1958.

Rehearing Denied Jan. 22, 1959.

Vinson, Elkins, Weems & Searls, Judson R. Wood and B. Jeff Crane, Jr., Houston, for appellant.

Sullivan, Haynes, Green, Crouch & Pacetti and Kenneth M. Pacetti, Houston, for appellees.

BELL, Chief Justice.

This is an appeal from an order of the district court overruling appellant's plea of privilege to be sued in Bexar County.

Appellees sued appellant under the name of 'Dollar Wave Shop.' Actually the appellant is Southland Beauty Shops, Inc., a corporation with its principal office in Bexar County. In their petition, appellees alleged that on April 20, 1957, Mrs. Foreman obtained a cold wave on her hair from the appellant's agent in Harris County. They alleged negligence generally on the part of such agent in giving the cold wave, which negligence they alleged to have proximately caused an irritation or infection about the scalp and ear of Mrs. Foreman. In response to the plea of privilege filed by appellant, appellees filed their controverting affidavit, again stating their cause of action generally with no specific acts of negligence being stated. Appellant excepted to this defect in the controverting affidavit, and appellees filed an amended affidavit in which they specify the following acts of negligence:

1. Appellant's agent failed to question Mrs. Foreman as to whether she was allergic to any chemicals which might be used in administering the cold wave.

2. Appellant's agent failed to make tests to determine whether Mrs. Foreman was allergic.

3. Appellant's agent administered a mixture that was too strong, which the agent knew or should have known.

4. Appellant's agent, after being informed by Mrs. Foreman that the solution, when it was applied to her head, was burning and paining her, failed to take any action to remove the solution or administer some counteracting solution.

5. Appellant's agent administered an excessive amount of solution or an amount in excess of what was necessary under the circumstances.

Appellees sought to maintain venue in Harris County under Subdivisions 9a and 23 of Article 1995, R.C.S.1925, Vernon's Ann.Civ.St. art. 1995, subds. 9a, 23.

In order to maintain venue in a county other than the residence of a defendant under Subdivision 9a, a plaintiff must establish by a preponderance of the evidence that an act of negligence, which was a proximate cause of the injury, was committed in the county where suit is brought by the defendant or those for whose negligent conduct he would be legally liable.

Subdivision 23 particularly deals with suits against corporations. Appellees rely on that part of the statute providing that suit may be brought against a corporation in the county where the cause of action or a part thereof arose. To be able to maintain venue in a county other than that where the corporation has its principal office under this provision, a plaintiff must prove he has a cause of action arising in whole or in part in the county where suit is brought. He must establish by a preponderance of the evidence a negligent act by the defendant, or agents, servants or employees of a defendant, committed in the county where suit is brought, which is a proximate cause of a plaintiff's injury. Victoria Bank & Trust Company v. Monteith, 138 Tex. 216, 158 S.W.2d 63; Rogers v. Fort Worth Poultry & Egg Co., Tex.Civ.App., 185 S.W.2d 165.

The trial court heard testimony and concluded appellees had established a cause of action arising in Harris County and overruled the appellant's plea of privilege.

Appellant contends that the evidence conclusively shows that the irritation and infection suffered by Mrs. Foreman was because of an allergy to some ingredient contained in the solution and therefore there is no legal liability on the part of appellant.

We must review the testimony.

Mrs. Foreman testified that on April 20, 1957, she went to appellant's place of business in the Stewart Building in Houston. She had been going to this shop since about 1948. She had never previously had any reaction or injury from the solutions that were used in the past. The wave she had on April 20 'was something different' from the type wave she had previously had. The wave was recommended by the lady in the beauty shop who takes the appointments. When the solution was put on her head, 'There was a horrible burning.' She told the operator of the burning and the operator told her it was because of the nature of the solution. The solution poured down into her ear and 'burned it horribly.' She kept complaining, but the operator said it would be all right. This had never happened before. The fumes burned her eyes. She, on the following Tuesday (the incident occurred on a Saturday) went to her doctor who did nothing for her. She had previously called the manager of the shop about the burning. On Wednesday she went by the shop, and the manager sent her to Dr. Kearns. Mrs. Foreman did not know the name of the permanent waves she had previously gotten. The burning was all over her scalp and in her ear. The ear and scalp were red. She had not gotten a permanent wave at the shop in several months but had gotten some home permanent waves. She got the home permanent solution at a grocery store. She never had any trouble from these home permanents. After she had gotten the wave on April 20, she told the operator she was pleased with it. So far as Mrs. Foreman knew, she was not allergic to any sort of preparation used in giving permanent waves. Mrs. Bigelow, the manager of the shop, knew Mrs. Foreman had been getting home permanents. Mrs. Foreman complained to Dr. Kearns about her scalp and ear. She later was sent by Dr. Kearns to an ear specialist, Dr. Janse. Prior to this occasion Mrs. Foreman had never had any skin irritations or eruptions, except on one occasion she had a reaction. The operator at the shop told her the solution was supposed to burn. It seemed to her like more solution was used than previously.

Mr. Foreman testified to the redness about Mrs. Foreman's scalp, neck and ear when she came home. She stated to him there had been burning since she got the permanent wave. He examined Mrs. Foreman, and her neck, head and ear were irritated. Prior to this time Mrs. Foreman, to whom he had been married 27 years, had never complained about any such irritation. He had never noticed anything of this kind, though she had a reaction to penicillin once.

Mrs. Wooster, the operator who gave Mrs. Foreman the permanent, stated she gave her the 'Realistic Cold Wave.' Mrs. Bigelow, the manager, told her to give...