Furr's, Inc. v. Hernandez
Furr's, Inc. v. Hernandez
Opinion of the Court
OPINION
In this venue case, the Defendant/Appellant appeals the overruling of its plea of privilege to be sued in the county of its residence. We reverse and render judgment that the cause of action be transferred to Lubbock County, Texas.
This suit was brought to recover damages for a dog bite suffered by Appellee while he was standing in the check-out line of Appellant’s grocery store. Appellee relied on Subdivisions 9a and 23 of Article 1995, Tex. Rev.Civ.Stat.Ann. We are of the opinion that Appellee has failed to meet his burden of proving negligence under Subdivision 9a and of proving a cause of action under Subdivision 23 in that his cause of action is based on negligence.
Appellant has points of error that there was no evidence and insufficient evidence to support the trial Court’s presumed finding of negligence and proximate cause. We sustain the no evidence points. In this connection, we are unable to agree with
The evidence in this case is that Appellee was standing in line at the checkout counter of the Appellant’s store when he saw a loose dog in the store, saw two employees, “bag boys,” chasing the dog; the dog approached him from behind, ran between his legs and he moved suddenly, and when he moved the dog bit his hand. Appellee did not know how the dog got into the store or how long he had been there; he described him as a stray; and he said that the bag boys were chasing him to get him out of the store. He testified: “[T]he dog was scared because they were chasing him.” And further: “When I moved, he got my hand, he was paranoid, the dog.” And: “[T]he dog was scared because they were chasing him and I guess he had never gotten into the store before, . . .”
From that evidence, we are unable to find negligence on the part of the owner of the premises toward his invitee. It cannot be said that the act of the employees in trying to remove the dog from the store was not that of a reasonable and prudent person. Did their method of removal, then, amount to negligence? Were they negligent, not acting as reasonable and prudent persons when they chased him to remove him from the store? Would a reasonably prudent person in seeking to remove a dog from the premises chase a dog and cause it to become scared and paranoid? An element of negligence, of course, is foreseeability. Could the sack boys foresee that chasing him would cause him to become scared and paranoid, and that the normal and probable consequence would be an injury similar to that inflicted on Appellee? We think it safe to assume that the boys could foresee that the dog would be scared by being chased, but paranoid is a different question. Webster’s Third New International Dictionary, 1971, describes paranoid as one afflicted with paranoia or paranoid schizophrenia. The first choice definition given paranoia is: “[R]are, chronic nondet-eriorative psychosis characterized chiefly by systematized delusions of persecution or of grandeur that are commonly isolated from the mainstream of consciousness and that are usu[ally] not associated with hallucinations.” There is nothing in the record to indicate that these bag boys have any special training in psychology or otherwise which would equip them to foresee that all of this would happen if they chased the dog.
Aside from our own analysis of the facts regarding negligence, there are several cases which by analogy are persuasive here. On the question of whether it was negligence to chase the dog, analogous is the case of Carson v. Knight, 294 S.W. 539 (Tex.Com.App. 1927). A calf escaped through a gate with a broken hinge. Attempts by one employee to “bulldog” the calf and its pursuit by another employee served only to infuriate the animal which then injured the plaintiff. The trial court’s findings of negligence and proximate cause were reversed by the Commission of Ap-
The judgment of the trial Court is reversed and judgment here rendered that the cause be transferred to the proper court of Lubbock County, Texas.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.