dissenting.
I respectfully dissent.
While driving the truck-tank combination in Maverick County, plaintiffs’ decedent— through inadvertence, negligence, or accident — overturned the rig; it skidded, ruptured, and he was killed. Defendant was sued because, more than nine years earlier, it had manufactured and sold the tank in Lubbock County in accordance with the provisions of the Liquefied Petroleum Gas Code.1 This particular tank had been attached to various trucks and trailers and had traveled more than nine hundred thousand miles — more than four times the distance from the earth to the moon at perigee — without incident.
Defendant is not shown to have done anything in Maverick County which contributed to the accident or decedent’s injury and death — except that it manufactured the tank in Lubbock County in accordance with designs approved by the agency charged with promulgating and enforcing *593safety in the transportation of liquefied petroleum gas.
Now the majority of this court, without citation of any authority in point, holds that defendant’s acts in designing the truck in Lubbock County gave rise to a cause of action in Maverick County solely because the accident and damages occurred in the latter county. The case most nearly in point which has come to my attention is Pesek v. Murrel’s Welding Works, Inc., 558 S.W.2d 39, 44 (Tex.Civ.App.—San Antonio 1977, writ dism’d), involving the alleged defective design of a hot oil unit which exploded. Pesek sought to recover on strict liability in tort because of the defective design of the hot oil unit. The court, passing upon a similar question to that confronting us, said:
“Plaintiffs assert that the hot oil unit was defective when manufactured and sold. As such, the breach occurred at the time of the manufacture and sale of such property, which was in Hockley County in 1968. Moreover, the defendant did not contract to do anything, or participate in any transaction in Frio County, Texas. The fact that the injury and damages occurred in Frio County, Texas is insufficient to show that the cause of action or a part thereof occurred in Frio County.”2
Justice Klingeman, writing for the court in Pesek, cited, inter alia, Johns-Manville Sales Corp. v. Haden Co., Inc., 543 S.W.2d 415, 419 (Tex.Civ.App.—Fort Worth 1976), writ ref’d n.r.e., per curiam, 553 S.W.2d 759 (Tex.1977).
The Supreme Court stated the holding of the intermediate court in Johns-Manville:
“The court of civil appeals reversed, holding that the only ‘portion’ of Haden Company’s cause of action which ‘accrued’ in Wichita County was the sustentation of damages by Haden Company, and that damages alone is not a ‘part of the cause of action’ within the meaning of subdivision 27. 543 S.W.2d 415.”
The Court then noted its disagreement with another case and concluded by stating, “We agree with the holding in the present ease.” (553 S.W.2d at 760)
There is another facet of the holding of the majority which disturbs me — the failure to give proper recognition to the dual burden assumed by plaintiffs seeking to hold a domestic corporation in a foreign county under subdivision 23 of the venue statute. The necessary predicate to a recovery in every tort action was set out by Chief Justice Greenhill in Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976):
“[A]ny plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish tort liability.” (emphasis supplied)
Under the definitive holding made in Employers Casualty Co. v. Clark, 491 S.W.2d 661, 662 (Tex.1973), the plaintiff, relying upon subdivision 23, must establish his cause of action “by proving at least a right and a breach by the defendant of the corresponding duty.”
Plaintiffs sought to establish the existence of a legal duty owed by defendant to their decedent by the invocation of Section 402A, Restatement, Torts 2d. To bring themselves within this section, it was their burden to show that the tank was unreasonably dangerous to the user (their decedent) because of the defective design thereof. This was but half of their duty under Abalos, supra, since it was also their burden to prove the violation of the legal duty. Western Wool Commission Co. v. Hart, Tex., 20 S.W. 131, 132 (Tex.Comm.App. 1892, opinion adopted); Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114, 277 S.W. 621, 624 (1925).
I am disturbed that the majority has not addressed the failure of the plaintiffs to satisfy both elements of the burden imposed upon the plaintiffs in this cause. Defendant’s points have been, in effect, overruled *594sub silentio. Assuming, arguendo, the existence of the legal duty to plaintiffs’ decedent (under § 402A), I find no evidence tending to establish a violation of that legal duty in Maverick County.
Since I would follow the rationale of Clark and Pesek, I dissent from the judgment which affirms the trial court’s denial of defendant’s right to be sued in the county of its domicile.
. At the time of the manufacture and sale of the tank in question, the statute was Tex.Rev. Civ.Stat.Ann. art. 6066d, et seq. (1962). The statute has been recodified and the “LPG Code” is now found in 2 Tex. Natural Resources Code §§ 113.001, et seq. (1978).
. Plaintiffs’ able counsel, admitting that Pesek “appears to be contrary” to the position taken by plaintiffs in this case, argues that the author of Pesek “was viewing this as a contract rather than a tort.” Such a rationalization must come as a distinct surprise to the author of the opinion and to trial counsel for Pesek’s widow and children.