Whitson Food Products Co. v. McClung, 2621.

• Decision Date: 07 November 1947
• Docket Number: No. 2621.,2621.
• Citation: 206 S.W.2d 659
• Parties: WHITSON FOOD PRODUCTS CO. v. McCLUNG.
• Court: Texas Court of Appeals

206 S.W.2d 659

WHITSON FOOD PRODUCTS CO. v. McCLUNG.

No. 2621.

Court of Civil Appeals of Texas. Eastland.

November 7, 1947.

Rehearing Denied December 5, 1947.

Appeal from Taylor County Court; Wiley Caffey, Judge.

Action by Nola McClung against the Whitson Food Products Company to recover for injuries allegedly sustained by plaintiff as result of glass in can of tamales canned by the defendant. From a judgment overruling defendant's plea of privilege, the defendant appeals.

Judgment reversed and remanded with instructions to transfer cause.

Worsham, Harrell, Burrow & Worsham, of Dallas, for appellant.

Cox & Bradbury, of Abilene, for appellee.

GRAY, Justice.

Appellant makes the following statement of the nature and results of the case which appellee concedes to be substantially correct. "Appellee brought this suit in the County Court of Taylor County, Texas, for damages for personal injuries alleged to have been sustained by eating tamales canned by appellant, which contained a piece of glass or some substance similar to glass, which became embedded in her gums under her false teeth. Appellee purchased the can of tamales from a retail merchant in Abilene, and both by proof and stipulation, the can of tamales was manufactured and canned by appellant at its factory in the City of Denton, in Denton County, Texas. Appellant filed a plea of privilege in due form, and appellee controverted the plea of privilege on the sole ground that the failure of appellant in its obligation and duty as a manufacturer and canner of tamales to manufacture and can them in a safe and sanitary manner, free from all glass and foreign substance, was negligence which proximately caused the alleged injury to appellee and that such failure to discharge its duty constituted a trespass within the meaning of Exception 9, to Article 1995, of Vernon's Annotated Civil Statutes. The Court overruled appellant's plea of privilege. Notice of appeal was given in open court. An appeal bond was filed by appellant in due time and this case is now before this honorable court for decision."

Exception 9, of Article 1995, Vernon's Ann.Civ.St., reads as follows: "A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile."

To sustain venue of this suit in Taylor County, it must appear; (a) that a trespass was committed; and (b) that it was committed in Taylor County. Each is a venue fact, which must be proved, and the burden of proof is on plaintiff. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

It is important here to determine what constitutes a trespass within the meaning of the statute. Fortunately, we are not without legal definition. "Trespass means any intentional wrong or injury to the person or property of another." Hubbard v. Lord, 59 Tex. 384; Armendiaz v. Stillman, 54 Tex. 623; Cook v. Horstman, 2 Willson Civ.Cas.Ct.App. § 770. "The word `trespass', [as here used] means any intentional wrong or injury to the person or property of another and includes conversion." Ward v. Oden, Tex.Civ.App., 153 S.W. 634. "A `trespass' [within this statute], is an active wrong, as distinguished from negligently omitting what should have been done. * * *" Winslow v. Gentry, Tex.Civ.App., 154 S.W. 260. "A `trespass' within the meaning of subdivision 9 of R.S. Art. 1995, includes injuries to person or property resulting from wrongful acts, either wilfully inflicted or the result of affirmative, active negligence upon the part of the wrongdoer, as distinguished from injuries that are the result of a mere omission of duty." 43 Tex.Jur., page 735, Sec. 22. The Supreme Court of Texas, speaking through Justice Gaines in Ricker et al. v. Shoemaker, 81 Tex. 22, 16 S.W. 645, in distinguishing between Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R. A. 618, and that case, says: "Between that and the case now under consideration there is a marked distinction. There the act was not alleged to be done with the intent to injure the plaintiff's wife, but it was an act committed. In the present case the alleged wrong consists in the negligent omission by the defendants' representative to do an act which it was his duty to do. Is this a `trespass' within the meaning of the statute? We think not. The words, `where the crime, offense, or trespass was committed,' indicate that the word `trespass' was intended to embrace only actions for such injuries as result from wrongful acts willfully or negligently committed, and not those which result from a mere omission to do a duty."

The courts draw a clear distinction between active negligence resulting in injury to person or property and passive negligence. In the former, there is an affirmative act; in the latter, an omission to perform a duty. The former may be a trespass; the latter is not.

On the issue of liability, plaintiff pleaded as follows: "That defendant was under the obligation and duty as a manufacturer and canner of said tamales to manufacture and can them in a safe and sanitary manner, free from all glass, foreign substances, and defendant failed in this obligation by selling said tamales for the purpose of purchasing and consuming, by the public, by selling same that contained glass or some substance similar to glass. That as the result of defendant's negligence in selling said tamales in such a condition plaintiff was damaged as set forth aforesaid."

In the pleading quoted, plaintiff does not charge an active, affirmative act of negligence committed by the defendant in Taylor County. On the contrary, plaintiff charges an omission to perform an obligation by selling tamales containing glass, or some substance similar to glass, to the public, which was negligence resulting in damage to plaintiff. It was stipulated in open court by attorneys for both parties that the can of tamales was manufactured and canned by the defendant at its factory in Denton County, Texas. The plaintiff testified that she purchased same from the M. System Grocery Store in Abilene, Texas. Thus, plaintiff's pleading, her testimony and the stipulation in open court negative the commission of any active, affirmative act of negligence by defendant in Taylor County. If defendant was guilty of negligence in allowing glass or other foreign substance to be in the said can of tamales, it was an omission to perform a duty owed to the public, but it was passive negligence, not a trespass and was committed in Denton County, Texas. See 43 Tex.Jur. page 735, Sec. 22, and other authorities cited above.

The views expressed above are supported by many decisions of the Supreme Court and courts of civil appeals. This court has had numerous cases involving an alleged trespass under said Exception 9, some of which will be briefly noticed. Lawless v. Tidwell, Tex.Civ.App., 24 S.W. 2d 515, 516, was a plea of privilege case, the alleged negligent act occurring in Baylor County, where the suit was filed. The defendant was charged with negligently driving his automobile into plaintiff's car parked on the side of the highway and inflicting injuries. The defendant filed his plea of privilege to be sued in Taylor County, the county of his residence. The plea was overruled and the case was appealed to this court, which reversed the trial court and ordered the case transferred to Taylor County. We quote from the opinion by Chief Justice Hickman: "It is also well settled that, in order to confer venue of a case in a county not the residence of the defendant under exception No. 9, based upon a contention that a trespass was committed in such county, some wrongful act must have been committed in that county, and not merely a tort resulting from the negligent omission to perform a duty. Active negligence, as distinguished from passive negligence, must be shown. Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331; Austin v. Cameron, 83 Tex. 351, 18 S.W. 437; Jacobson v. Berwick, [Tex.Civ.App., 289 S.W. 1035]; Campbell v. Wylie, Tex.Civ.App., 212 S.W. 980; Frnka v. Beaumert, Tex.Civ. App., 290 S.W. 808 [Cook v. Guzman, Tex. Civ.App., 19 S.W.2d 855]."

The case of Metzger Dairies v. Wharton, Tex.Civ.App., 113 S.W.2d 675, 677, decided by this court, is squarely in point on the facts. Two suits...