Taylor v. Fort Worth Poultry & Egg Co.

• Decision Date: 26 November 1937
• Docket Number: No. 13610.,13610.
• Citation: 112 S.W.2d 292
• Parties: TAYLOR et al. v. FORT WORTH POULTRY & EGG CO. et al.
• Court: Texas Court of Appeals

Page 292

112 S.W.2d 292

TAYLOR et al. v. FORT WORTH POULTRY & EGG CO. et al.

No. 13610.

Court of Civil Appeals of Texas. Fort Worth.

November 26, 1937.

Rehearing Denied January 14, 1938.

Appeal from District Court, Parker County; J. E. Carter, Judge.

Suit by H. L. Taylor, individually and as next friend for his daughter, Melba June, against the Fort Worth Poultry & Egg Company and another, for damages sustained by plaintiff because of the drinking of a quantity of sulphuric acid by the daughter. The named defendant's plea of privilege was sustained by the trial court, and the plaintiff appeals.

Affirmed.

Grindstaff, Zellers & Hutcheson, of Weatherford, for appellants.

Nolan Queen, of Weatherford, and Samuels, Foster, Brown & McGee and Sproesser Wynn, all of Fort Worth, for appellees.

SPEER, Justice.

H. L. Taylor, individually and as next friend for his little daughter, Melba June, instituted this suit in the district court of Parker county against Charles Jones, a resident of that county, and the Fort Worth Poultry & Egg Company, a corporation having its domicile in Tarrant county, Tex., for damages sustained by plaintiff on account of the child entering defendant Jones' place of business and drinking a quantity of sulphuric acid.

For convenience, we shall refer to Taylor as plaintiff, to Melba June Taylor as the child, to Charles Jones as defendant Jones, and to the Fort Worth Poultry & Egg Company as defendant corporation.

This appeal involves venue and a plea of privilege by the defendant corporation. The plea was sustained by the trial court.

By the controverting affidavit of plaintiff, he specially pleaded that the court had venue of the suit and jurisdiction of defendant corporation under subdivisions 4, 9, 23, and 23a, of article 1995, Rev.Civil Statutes. However, plaintiff's brief indicates that he relied upon subdivision 29a, as added by Acts 1927, 1st Called Sess., c. 72, § 2, Vernon's Ann.Civ.St. art. 1995, subd. 29a, instead of "23a" as shown in the transcript. There is no such section as 23a in our statutes and we shall therefore treat that recitation in the record as a typographical error and discuss it as it appears in the brief. We feel warranted in doing this.

In so far as is necessary for us to here show as affecting the question of venue, the petition alleges that defendant Jones was engaged in the mercantile business in the village of Brock in Parker county, where he operated a small grocery store situated near the public school building in that community; that the public was expressly and impliedly invited to enter his place of business; that the store was daily visited by the general public, including small school children as customers; that defendant corporation, as a means of carrying on its business, had constituted and appointed defendant Jones as its agent, servant, and employee at Brock, Tex.; that by a written contract defendant corporation had authorized the defendant Jones to transact business for it in its name, place, and stead in that community; that is, the said Jones was thereby authorized to purchase cream of a certain quality for immediate shipment to the corporation's place of business in Fort Worth, Tex.; the allegation shows Jones was to receive two cents per pound for butter fat in the cream so purchased and shipped by him; that the grade of the cream was to be tested by Jones by the means prescribed by defendant corporation before shipping; that Jones had contracted not to buy cream for himself or for any other person; that the cream was to be tested with the appliances and equipment furnished by defendant corporation; that among said equipment was sulphuric acid, shipped to Jones by the corporation in quantities of more than a sufficient amount for use in a single test; that Jones kept all said testing equipment in his said store; that defendant corporation had instructed Jones how such tests should be made and the manner in which it should be purchased, and the kind of containers from which it should be taken; that defendant corporation failed to provide proper materials with which to screen or inclose the equipment; that said appliances were kept in said store near the candy counter; that on the day the child was injured, Jones had tested cream and left a quantity of the sulphuric acid near the candy counter within easy reach of children, such as this child; that the sulphuric acid was a deadly poison, all of which was well known to both defendants; that the acts alleged constituted negligence on the part of defendants, proximately resulting in the injuries to the child thereinafter set out.

Further allegations were made that on about March 2, 1936, while the conditions set out in the petition existed, the child, who was about three and a half years old and without sufficient judgment and discretion to discern surrounding dangers, was left by her mother in the care of the mother or wife of defendant Jones, who lived in the rear of the store building; that the little girl, in response to her childish instincts, came near the candy counter and was likewise attracted by the equipment, machinery, and appliances for testing cream; that defendant Jones, acting as agent for defendant corporation, had on that day negligently left a small container of sulphuric acid among said equipment within reach of the child; that she found it, and the liquid having the appearance of water, she drank it, from which she received serious and permanent injuries. Further allegations were made of the damages sustained to both plaintiff and the child, for which judgment was asked against defendants and each of them in the sum of $40,000.

The defendant corporation timely filed its plea of privilege, containing all the requisites of such instruments as set out in article 2007, Rev.Civ.Statutes. In response to which plaintiff filed his controverting affidavit as provided under the same statute last above cited. The controverting plea was substantially as set out in the petition, and upon these pleadings the venue issues were tried to the court without a jury. Upon hearing the testimony offered, the court sustained defendant corporation's plea of privilege and in part entered this judgment: "It is therefore ordered, adjudged and considered by the court that the plea of privilege of the said Fort Worth Poultry & Egg Company to be sued in Tarrant County, Texas, be and the same is hereby in all things sustained, and that the venue of said cause is changed from the district court of Parker County, Texas, to the district court of Tarrant County, Texas, and said cause, as to said Fort Worth Poultry & Egg Company, is hereby ordered to be transferred to the district court of Tarrant County, Texas. * * *" From this judgment plaintiff has appealed.

The plaintiff relies upon an assignment of error, the substance of which is that the trial court erred in sustaining and not overruling the plea of privilege of defendant corporation.

Under this assignment he makes three propositions as a basis of the appeal; in effect they are:

(1) When a petition alleges a joint cause of action against two persons, one a resident and the other a nonresident of the county in which suit is instituted, and the evidence establishes a cause of action against the resident defendant, it is error to sustain the plea of privilege filed by the nonresident. This proposition is briefed by plaintiff as being applicable to subdivision 4 of article 1995, Rev.Civ. Statutes.

(2) This action should be maintained in Parker county against the nonresident corporation, because it was shown the cause of action or a part of same arose in that county.

Where, as in this case, the pleadings and proof showed the nonresident defendant was a corporation and had an agent in Parker county and that the damages resulted from the negligence of the agent while a resident of Parker county, the plea of privilege of the nonresident defendant should have been overruled. The two last-mentioned propositions are based on subdivision 23 of article 1995, Rev.Civ. Statutes.

(3) Where an action is filed against two defendants, one a resident of the county where suit is instituted and one a nonresident, and it is alleged and proven that the former is the agent of the latter, the...