Swift & Co. v. Mackey
| Decision Date | 10 December 1948 |
| Docket Number | No. 2694.,2694. |
| Citation | 216 S.W.2d 242 |
| Parties | SWIFT & CO. et al. v. MACKEY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Erath County; Ernest Belcher, Judge.
Action by Doyle F. Mackey against Swift & Co., a corporation, and another for damages sustained as the result of eating ice cream alleged to have been sold and delivered by named defendant to codefendant, from whom plaintiff purchased it. From an order overruling named defendant's plea of privilege, such defendant appeals.
Reversed and remanded.
Joseph A. Chandler, of Stephenville, for appellant.
Chas. Nordyke and G. H. Williamson, both of Stephenville, for appellee.
This is a plea of privilege case. Appellee, Doyle F. Mackey, filed suit in the District Court of Erath County, Texas, against Luther Pack, doing business in Stephenville, Erath County, as Pack's Grocery, and Swift & Company, alleged to be a corporation, whose domicile and principal place of business is in Fort Worth, Tarrant County, Texas, for damages alleged to have been sustained by plaintiff as the result of eating ice cream from a package containing a dead mouse, which package of ice cream was alleged to have been manufactured, sold and delivered by Swift & Company to said Pack's Grocery, retailer, from which plaintiff purchased same. Swift & Company filed its plea of privilege to be sued in Tarrant County, which plea was controverted. Hearing was had on said plea and controverting affidavit and taken under advisement by the court. Some time afterward, on motion of plaintiff and over objection by said defendant, the court reopened the case for further testimony, after which the plea of privilege was overruled, from which order, Swift & Company has appealed.
The petition was incorporated into and made a part of the controverting affidavit. We quote two pertinent paragraphs from said controverting affidavit:
The pertinent part of Exception 23 reads as follows:
"Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county;"
Exception 29a reads as follows:
"Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants then such suit may be maintained in such county against any and all necessary parties thereto."
It is so elementary as not to require citation of authorities that to defeat a plea of privilege, the plaintiff must not only plead but prove the venue facts on which he relies. In his effort to sustain venue as against Swift & Company in Erath County under Exception 23, it was alleged that "Swift & Company is a corporation, and that the cause of action therein alleged (in the petition) and herein alleged happened, took place, and arose in Erath County, Texas." No proof was made that Swift & Company was a corporation, or that in fact Swift & Company manufactured, sold or delivered such package in Erath County. All the evidence was to the contrary except said package had what was purported to be a Swift & Company label. It was alleged in the petition and in the controverting affidavit, that Swift & Company had an agent or representative in Erath County. The only testimony on this point was by defendant Pack, that while he handled Swift's Ice Cream, he did not buy same from Swift &...
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